On June 07, 2018 a
Motion-Secondary
was filed
involving a dispute between
Kenneth Miller,
and
David Strothers,
Eric Bevard,
Gretchen Bevard,
for Real Property - Other (Declaratory Judgment/Ease)
in the District Court of Jefferson County.
Preview
FILED: JEFFERSON COUNTY CLERK 05/28/2021 10:40 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 05/28/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
Kenneth Miller,
Plaintiff
-vs- AFFIDAVIT IN SUPPORT OF
MOTION IN LIMINE
Index No. EF2018-00001369
Hon. James P McClusky, J.S.C.
Eric Bevard, Gretchen Bevard, and
David Strothers,
Defendants
___ _
Thomas P. Givas, being duly sworn, deposes and says:
1. Deponent is an attorney duly admitted to practice law in the State of New York and
is a member of the law firm of Pappas, Cox, Kimpel, Dodd & Levine, P.C., attorneys for the
Plaintiff in the above referenced matter. As such, deponent is familiar with the facts and
circumstances in the instant case.
2. This action involves a request for a Declaratory Judgment relating to an easement
as set forth in the Plaintiff's Amended Complaint. A copy of the Amended Complaint is
annexed hereto, made a part hereof and labeled Exhibit A.
3. In connection with this action, the Defendants have indicated they intend to call
certain experts. The Defendants Eric and Gretchen Bevard have indicated they intend to call
Mr. Thomas M. Storino, a surveyor. A copy of that expert witness's disclosure is aññexed
hereto and made a part hereof and labeled Exhibit B.
4. The Defendant David Strothers intends to call Attorney Timothy A. Farley, Esq., as
an expert witness.
5. A copy of the expert witness response relating to Mr. Farley is aññexed hereto
made a part hereof and labeled Exhibit C.
6. The law in connection with the interpretation of the deed and easement provides
that the words in a deed are to be given their plain and ordinary meaning and be construed
as an average person would interpret those meanings.
7. As such, the Plaintiff believes itis improper to have either proposed expert give an
expert opinion as to the meaning of words in the deed. The words are to be given their plain
1 of 2
FILED: JEFFERSON COUNTY CLERK 05/28/2021 10:40 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 05/28/2021
meanings. The meañiñgs are how an average peson would interpret the words, not an
expert.
8. In addition, the law provides that the meaning is to be determined by the
surrounding circumstances. Mr. Farley was not involved in the transactions in relating to the
1984 deed and easement.
9. Indeed, he was not involved until Mr. Strothers became involved in 2015.
10. Mr. Storino was not even a licensed surveyor when the 1984 deed was given.
There is no indication Mr. Storino ever surveyed the property until the Bevards came along in
2020. As such, his testimony also does not involve surrounding circumstances.
11. Any interpretation of the deed or easement by the Defendants Strothers and
Bevard should also not be allowed. Their transactions occurred approximately thirty or more
years after the deed in question and do not involve surrounding circumstances.
Defendants' opinions"
12. The experts should not be allowed to testify as to "expert as
this is not the proper way to interpret the easement.
Defendants'
11. Similarly, given the fact that none of the experts or the Defendants are
familiar with the surrounding circumstances, their testimony should not be allowed or used to
help interpret the deed and easement in question.
WHEREFORE, the Plaintiff requests an Order of the Court limiting the testimony of the
Defendants and the Defendants experts as set forth above geth ith such other and
further relief as the Court may deem just and prop .
THokAshiv
Sworn and Subscribed to before
me this day of May, 2021
NOTARY PUBLIC
LAUREN A
COHEN-TAWIL
NOTARY PUBuG. STATE OF NEW YORK
NO 00
C05081529
QUALIFIED IN ONONDAGA
COUNTY
COMMISSION EXPIRES JULY 7, 20__
2 of 2
Document Filed Date
May 28, 2021
Case Filing Date
June 07, 2018
Category
Real Property - Other (Declaratory Judgment/Ease)
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Preview
FILED: JEFFERSON COUNTY CLERK 05/28/2021 10:40 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 05/28/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON Kenneth Miller, Plaintiff -vs- AFFIDAVIT IN SUPPORT OF MOTION IN LIMINE Index No. EF2018-00001369 Hon. James P McClusky, J.S.C. Eric Bevard, Gretchen Bevard, and David Strothers, Defendants ___ _ Thomas P. Givas, being duly sworn, deposes and says: 1. Deponent is an attorney duly admitted to practice law in the State of New York and is a member of the law firm of Pappas, Cox, Kimpel, Dodd & Levine, P.C., attorneys for the Plaintiff in the above referenced matter. As such, deponent is familiar with the facts and circumstances in the instant case. 2. This action involves a request for a Declaratory Judgment relating to an easement as set forth in the Plaintiff's Amended Complaint. A copy of the Amended Complaint is annexed hereto, made a part hereof and labeled Exhibit A. 3. In connection with this action, the Defendants have indicated they intend to call certain experts. The Defendants Eric and Gretchen Bevard have indicated they intend to call Mr. Thomas M. Storino, a surveyor. A copy of that expert witness's disclosure is aññexed hereto and made a part hereof and labeled Exhibit B. 4. The Defendant David Strothers intends to call Attorney Timothy A. Farley, Esq., as an expert witness. 5. A copy of the expert witness response relating to Mr. Farley is aññexed hereto made a part hereof and labeled Exhibit C. 6. The law in connection with the interpretation of the deed and easement provides that the words in a deed are to be given their plain and ordinary meaning and be construed as an average person would interpret those meanings. 7. As such, the Plaintiff believes itis improper to have either proposed expert give an expert opinion as to the meaning of words in the deed. The words are to be given their plain 1 of 2 FILED: JEFFERSON COUNTY CLERK 05/28/2021 10:40 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 05/28/2021 meanings. The meañiñgs are how an average peson would interpret the words, not an expert. 8. In addition, the law provides that the meaning is to be determined by the surrounding circumstances. Mr. Farley was not involved in the transactions in relating to the 1984 deed and easement. 9. Indeed, he was not involved until Mr. Strothers became involved in 2015. 10. Mr. Storino was not even a licensed surveyor when the 1984 deed was given. There is no indication Mr. Storino ever surveyed the property until the Bevards came along in 2020. As such, his testimony also does not involve surrounding circumstances. 11. Any interpretation of the deed or easement by the Defendants Strothers and Bevard should also not be allowed. Their transactions occurred approximately thirty or more years after the deed in question and do not involve surrounding circumstances. Defendants' opinions" 12. The experts should not be allowed to testify as to "expert as this is not the proper way to interpret the easement. Defendants' 11. Similarly, given the fact that none of the experts or the Defendants are familiar with the surrounding circumstances, their testimony should not be allowed or used to help interpret the deed and easement in question. WHEREFORE, the Plaintiff requests an Order of the Court limiting the testimony of the Defendants and the Defendants experts as set forth above geth ith such other and further relief as the Court may deem just and prop . THokAshiv Sworn and Subscribed to before me this day of May, 2021 NOTARY PUBLIC LAUREN A COHEN-TAWIL NOTARY PUBuG. STATE OF NEW YORK NO 00 C05081529 QUALIFIED IN ONONDAGA COUNTY COMMISSION EXPIRES JULY 7, 20__ 2 of 2