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FILED: JEFFERSON COUNTY CLERK 05/24/2021 02:24 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 05/24/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
KENNETH MILLER,
Plaintiff,
v.
ERIC BEVARD, GRETCHEN BEVARD, and Index No. EF2018-00001369
DAVID STROTHERS
Defendants.
MEMORANDUM OF LAW
DEFENDANTS'
IN SUPPORT OF
MOTION TO LIMIT TESTIMONY
Submitted by:
Robert J. Slye, Esq.
SLYE LAW OFFICES, P.C.
Attorneys for Defendant
David Strothers
Office & Post Office Address
104 Washington Street
Watertown, New York 13601
Telephone: (315) 786-0266
Roger W. Bradley, Esq.
MELVIN & MELVIN, PLLC
Attorneys for Defendants
Eric BeVard and Gretchen BeVard
Office & Post Office Address
7th
217 South Salina Street, FlOOr
Syracuse, New York 13202
Telephone: (315) 422-1333
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STATEMENT OF FACTS
Plaintiff Kenneth Miller's Verified Complaint alleges that a November 5, 1984 deed from
Edith R. Abbey Roeschlaub to his parents, Mervin Miller and Barbara Miller, not only contained
the conveyance of fee to non-waterfront property, but also contained the grant of a "recreation
easement,"
running with the land, allowing the Millers, and their subsequent grantees, the right
to recreate on the Roeschlaub property: in perpetuity. Defendants BeVard and Strothers hold
easement"
separate fee titleto the property alleged to be burdened by the "recreation Their title
also devolved from Edith R. Abbey Roeschlaub. The Roeschlaub deed to Mervin and Barbara
"easement" "recreation,"
Miller nowhere uses the word in connection with but instead
specifically grants "the use of, along with others, of a parcel of land along Lake Ontario, said
area."
land to be used for docking boats, fishing, swimming, and as a picnic The "use of said
premises" grantor."
was expressly made "subject to the sale of the same by the
This Court previously determined, in itsMemorandum Decision and Order dated
September 25, 2019 (NYSCEF Document No. 70), that "the language in question is 'theuse of
grantor.'"
the said premises are subject to sale of the same by the The Decision and Order
continued:
sale"
"Subject to clearly means something. The fact that the
Roeschlaub to Hunkele deed did not specifically mention the
recreation easement is some proof that itwas not intended to
continue. However, the deed contains language that the
conveyance is subject to "easements, rights of way, covenants and
any"
restrictions that may be of record, if which is some proof that
the grantor intended to continue the recreation (and waterline)
easement.
fact"
This Court then concluded that there was a "question of as to whether the
easement"
"recreation was intended to continue. Because the Court's conclusion is clearly one
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that the deed's language is ambiguous, rather than a question of fact, this Memorandum is
"ambiguous"
submitted to: a. Confirm that the issue of whether a document is is strictlya
matter for the Court to determine and not the jury; b. Confirm that ifany ambiguity exists in a
"license,"
deed as to whether a grant is an easement or merely a that ambiguity must be resolved
in favor of a license, rather than an easement; and c. Given this rule of law, Defendants seek a
Court direction that none of Plaintiff's witnesses, including his expert, and further his attorney,
"easement"
use the word in any discussion of the grant of use.
LEGAL ARGUMENT
POINT I
THE 1984 ROESCHLAUB DEED TO THE MILLERS DID NOT
CREATE AN EASEMENT
The Court of Appeals has made itclear that:
to create an easement by express grant there must be a writing
containing plain and direct language evincing the grantor's intent
to create a right in the nature of an easement rather than a
revocable license...The writing must establish unequivocally the
grantor's intent to give for all time to come a use of the servient
estate to the dominate estate.
Willow Tex v. Dimacopoulos, 68 N.Y.2d 963, 965 (1986). (emphasis in original).
sale"
This Court's Decision and Order makes clear that the "subject to language contained in the
unequivocal."
Roeschlaub deed to the Millers is not "plain, direct and If itwas, the Court would
have declared itsmeaning.
The language used in the Roeschlaub to Miller deed is as follows:
ALSO, granting and conveying to the grantees the u_se of,along
with others, of a parcel of land along Lake Ontario, said land to be
used for docking boats, fishing, swimming and as a picnic area,
and also granting and conveying the right to install a water pump
and line from the lake to the above described 0.155 acre parcel,
said water facilitiesto be maintained by the grantees. The use of
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said premises are subject to the sale of the same by the grantor.
(emphasis added).
Defendants respectfully submit that this language does not represent the grant of an
interest in real property. Rather, the use of the land for "docking boats, fishing, swimming and
area"
as a picnic was merely a license, which is a "personal, revocable and non-assignable
privilege, created by a writing or by parol, to enter upon land to enter upon land for a specific
purpose, but which does not create a possessory interest on the part of the licensee and the land.
3d
See, New York Real Estate Titles, Edition, Section 9.91, citing Greenwood L. and PJR Co. v.
NY GLR Co., 134 N.Y. 435 (1892).
POINT II
THE OUESTION OF AMBIGUITY IS WITHIN THE EXCLUSIVE
PROVIDENCE OF THE COURT
The Court of Appeals has held that "a contract [or any other writing] is ambiguous if[that
interpretation."
document] on itsface is reasonably susceptible of more than one Ellington v.
EMI Music, Inc.,24 N.Y.3d 239 (2014). While Your Honor has apparently determined that,
essentially, the entire matter should go to the jury, the "threshold decision on whether a writing is
Court."
ambiguous is the exclusive providence of the See Innoohos. Inc. v. Rhodia, S.A., 10
N.Y.3d 25 (2008). Given the fact that Your Honor's Decision and Order found that there isa
question as to whether, under the Willow Tex case, the language used in the deed gave, for all
time to come, the use of the recreation area, the Court has, as a matter of law, found the
"ambiguous."
document to be
POINT III
ANY AMBIGUITY IN A DEED IN CONNECTION WITH WHETHER A GRANT
IS AN EASEMENT OR A LICENSE MUST BE CONSTRUED AS A LICENSE
The import of a finding of ambiguity has been succinctly discussed by the Fourth
Department. In a case citing the Willow Tex case, supra, for the premise that an easement by
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express grant must be supported by "a writing containing plain and direct language evincing the
license."
grantor's intent to create a right in the nature of an easement rather than a revocable
The Fourth Department then continued:
The policy of the law favoring unrestricted use of realty requires
that where there is a_n_yambiguity as to the permanence of the
restriction to be imposed on the servient estate, the right of use
should be deeded a license, revocable at will by the grantor, rather
easement."
than an
(4th
New York Land Development Corp. v. Bennett, 160 A.D.3d 1366 Dep't 2018) (emphasis
added), citing Willow Tex v. Dimacopoulos, 68 N.Y.2d 963, 965, supra. S_ee, also, State of New
(3rd
York v. Johnson, 45 A.D.3d 1016, 1018 Dep't 2007). Indeed, the Third Department has
separately ruled that "where, as here, there is no express time limitation for the right to use the
easement...."
property, that right should be deemed a license and not an Kampfer v. Dacorsi, 126
(3rd
A.D.3d 1067, 1068 Dep't 2015) also citing Willow Tex, supra.
Defendants respectfully submit that, at best, the Roeschlaub deed to Mervin and Barbara
law,"
Miller is ambiguous, requiring, as a matter of the "policy of the that itbe deemed a license
and not an easement. See Willow Tex and New York Land Development, supra.
POINT IV
"EASEMENT"
PLAINTIFF'S USE OF THE TERM SHOULD BE
PROHIBITED AT TRIAL
The Complaint in this case claims "the use of a recreational area [and] the right to install
lake."
a pump with access to the See Plaintiff's Complaint (NYSCEF Document No. 1),
paragraph 9. The Complaint then continues, at paragraph 11:
The Plaintiff and Plaintiff's predecessors used the easements for
recreational and access purposes for thirty years since the
easements were granted. (emphasis added).
See paragraph 11 of the Verified Complaint.
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"easement"
The jury should not hear the word in connection with the Roeschlaub grant of
the use of the property. At best, Plaintiff is limited to the language of the deed, itself,which
granted "the use of,along with others, of a parcel of land along Lake Ontario, said land to be
area...."
used for docking boats, fishing, swimming and as a picnic No grant of real property
rights was given: only a license to use theproperty, for certain purposes, "subject to the sale of
grantor." "easement,"
the same by the Plaintiff should be directed not to use theterm either by
counsel, by Plaintiff himself, or by his expert, Michael J. Yonkovig, Esq.
Mr. Yonkovig has actually provided two different letters outlining his opinion of the
matter. The first was given on June 19, 2017, making reference to "subject to the rights of
ingress and egress [presumably including the recreation area
easement]."
h Mr. Yonkovig's
June 19, 2017 letterat paragraph 1, attached to the accompanying Affirmation of Robert J. Slye,
Strothers'
Esq. With regard to the deed, Mr. Yonkovig makes reference to the document being
easement...."
"silent on the recreation area The letteralso recognizes that the deed to the
Bevards'
predecessor is likewise silent as to a recreation area easement and instead only claims
"presumably"
that itis included. Plaintiff's expert witness disclosure concerning Mr.
Yonkovig's proposed testimony makes the claim that Mr. Yonkovig will testify that itis his
deed,"
opinion that "there were easement rights granted in the 1984 and "that the casement
effect."
rights granted to the Millers are in full force and
Mr. Yonkovig provided a second letter on September 29, 2020. In that letter,Mr.
"ambiguity"
Yonkovig interestingly misstates the import of what he, himself, calls an in the
"use"
subject to the sale of the same, by grantor's language of the deed. In his view, the law
grantor"
would resolve the ambiguous language against the drafter, the "common (Ms.
Roeschlaub): but that is not the law. If the deed language is ambiguous as this Court has
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determined, and as Mr. Yonkovig believes, in saying "the use of said premises are subject to the
grantor," "use"
sale of the same by the the law requires that the claimed must be construed as a
license, and not an easement to run with the land. See, New York Land Development Corp.,
supra.
"easement"
Plaintiff's witnesses must be directed no_t touse the term in discussing the
recreation area use.
CONCLUSION
Defendants respectfully submit that these are not issues for the jury. Your Honor, having
apparently found an ambiguity, with Plaintiff's expert in agreement, is obligated to instruct the
jury that the ambiguity must be resolved in favor of a license, capable of being terminated at the
will of the owners of the properties over which the Millers claim a license to recreate. The only
question for the jury, then, will be ifthe license was terminated upon "the sale of the same by the
grantor."
Dated: May 24, 2021
Robert J. Slye, Esq.
SLYE LAW OFFICES, P.C.
Attorneys for Defendant
David Strothers
Office and P.O. Address
104 Washington Street
Watertown, New York 13601
Telephone: (315) 786-0266
Ro . Bradley, Esq.
MELVIN & MELVIN, PLLC
Attorneys for Defendants
Eric BeVard and Gretchen BeVard
Office and P.O. Address
7th
217 South Salina Street, PlOOr
Syracuse, New York 13202
Telephone: (315) 422-1333
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Preview
FILED: JEFFERSON COUNTY CLERK 05/24/2021 02:24 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 05/24/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON KENNETH MILLER, Plaintiff, v. ERIC BEVARD, GRETCHEN BEVARD, and Index No. EF2018-00001369 DAVID STROTHERS Defendants. MEMORANDUM OF LAW DEFENDANTS' IN SUPPORT OF MOTION TO LIMIT TESTIMONY Submitted by: Robert J. Slye, Esq. SLYE LAW OFFICES, P.C. Attorneys for Defendant David Strothers Office & Post Office Address 104 Washington Street Watertown, New York 13601 Telephone: (315) 786-0266 Roger W. Bradley, Esq. MELVIN & MELVIN, PLLC Attorneys for Defendants Eric BeVard and Gretchen BeVard Office & Post Office Address 7th 217 South Salina Street, FlOOr Syracuse, New York 13202 Telephone: (315) 422-1333 1 of 7 FILED: JEFFERSON COUNTY CLERK 05/24/2021 02:24 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 05/24/2021 STATEMENT OF FACTS Plaintiff Kenneth Miller's Verified Complaint alleges that a November 5, 1984 deed from Edith R. Abbey Roeschlaub to his parents, Mervin Miller and Barbara Miller, not only contained the conveyance of fee to non-waterfront property, but also contained the grant of a "recreation easement," running with the land, allowing the Millers, and their subsequent grantees, the right to recreate on the Roeschlaub property: in perpetuity. Defendants BeVard and Strothers hold easement" separate fee titleto the property alleged to be burdened by the "recreation Their title also devolved from Edith R. Abbey Roeschlaub. The Roeschlaub deed to Mervin and Barbara "easement" "recreation," Miller nowhere uses the word in connection with but instead specifically grants "the use of, along with others, of a parcel of land along Lake Ontario, said area." land to be used for docking boats, fishing, swimming, and as a picnic The "use of said premises" grantor." was expressly made "subject to the sale of the same by the This Court previously determined, in itsMemorandum Decision and Order dated September 25, 2019 (NYSCEF Document No. 70), that "the language in question is 'theuse of grantor.'" the said premises are subject to sale of the same by the The Decision and Order continued: sale" "Subject to clearly means something. The fact that the Roeschlaub to Hunkele deed did not specifically mention the recreation easement is some proof that itwas not intended to continue. However, the deed contains language that the conveyance is subject to "easements, rights of way, covenants and any" restrictions that may be of record, if which is some proof that the grantor intended to continue the recreation (and waterline) easement. fact" This Court then concluded that there was a "question of as to whether the easement" "recreation was intended to continue. Because the Court's conclusion is clearly one 2 2 of 7 FILED: JEFFERSON COUNTY CLERK 05/24/2021 02:24 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 05/24/2021 that the deed's language is ambiguous, rather than a question of fact, this Memorandum is "ambiguous" submitted to: a. Confirm that the issue of whether a document is is strictlya matter for the Court to determine and not the jury; b. Confirm that ifany ambiguity exists in a "license," deed as to whether a grant is an easement or merely a that ambiguity must be resolved in favor of a license, rather than an easement; and c. Given this rule of law, Defendants seek a Court direction that none of Plaintiff's witnesses, including his expert, and further his attorney, "easement" use the word in any discussion of the grant of use. LEGAL ARGUMENT POINT I THE 1984 ROESCHLAUB DEED TO THE MILLERS DID NOT CREATE AN EASEMENT The Court of Appeals has made itclear that: to create an easement by express grant there must be a writing containing plain and direct language evincing the grantor's intent to create a right in the nature of an easement rather than a revocable license...The writing must establish unequivocally the grantor's intent to give for all time to come a use of the servient estate to the dominate estate. Willow Tex v. Dimacopoulos, 68 N.Y.2d 963, 965 (1986). (emphasis in original). sale" This Court's Decision and Order makes clear that the "subject to language contained in the unequivocal." Roeschlaub deed to the Millers is not "plain, direct and If itwas, the Court would have declared itsmeaning. The language used in the Roeschlaub to Miller deed is as follows: ALSO, granting and conveying to the grantees the u_se of,along with others, of a parcel of land along Lake Ontario, said land to be used for docking boats, fishing, swimming and as a picnic area, and also granting and conveying the right to install a water pump and line from the lake to the above described 0.155 acre parcel, said water facilitiesto be maintained by the grantees. The use of 3 3 of 7 FILED: JEFFERSON COUNTY CLERK 05/24/2021 02:24 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 05/24/2021 said premises are subject to the sale of the same by the grantor. (emphasis added). Defendants respectfully submit that this language does not represent the grant of an interest in real property. Rather, the use of the land for "docking boats, fishing, swimming and area" as a picnic was merely a license, which is a "personal, revocable and non-assignable privilege, created by a writing or by parol, to enter upon land to enter upon land for a specific purpose, but which does not create a possessory interest on the part of the licensee and the land. 3d See, New York Real Estate Titles, Edition, Section 9.91, citing Greenwood L. and PJR Co. v. NY GLR Co., 134 N.Y. 435 (1892). POINT II THE OUESTION OF AMBIGUITY IS WITHIN THE EXCLUSIVE PROVIDENCE OF THE COURT The Court of Appeals has held that "a contract [or any other writing] is ambiguous if[that interpretation." document] on itsface is reasonably susceptible of more than one Ellington v. EMI Music, Inc.,24 N.Y.3d 239 (2014). While Your Honor has apparently determined that, essentially, the entire matter should go to the jury, the "threshold decision on whether a writing is Court." ambiguous is the exclusive providence of the See Innoohos. Inc. v. Rhodia, S.A., 10 N.Y.3d 25 (2008). Given the fact that Your Honor's Decision and Order found that there isa question as to whether, under the Willow Tex case, the language used in the deed gave, for all time to come, the use of the recreation area, the Court has, as a matter of law, found the "ambiguous." document to be POINT III ANY AMBIGUITY IN A DEED IN CONNECTION WITH WHETHER A GRANT IS AN EASEMENT OR A LICENSE MUST BE CONSTRUED AS A LICENSE The import of a finding of ambiguity has been succinctly discussed by the Fourth Department. In a case citing the Willow Tex case, supra, for the premise that an easement by 4 4 of 7 FILED: JEFFERSON COUNTY CLERK 05/24/2021 02:24 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 05/24/2021 express grant must be supported by "a writing containing plain and direct language evincing the license." grantor's intent to create a right in the nature of an easement rather than a revocable The Fourth Department then continued: The policy of the law favoring unrestricted use of realty requires that where there is a_n_yambiguity as to the permanence of the restriction to be imposed on the servient estate, the right of use should be deeded a license, revocable at will by the grantor, rather easement." than an (4th New York Land Development Corp. v. Bennett, 160 A.D.3d 1366 Dep't 2018) (emphasis added), citing Willow Tex v. Dimacopoulos, 68 N.Y.2d 963, 965, supra. S_ee, also, State of New (3rd York v. Johnson, 45 A.D.3d 1016, 1018 Dep't 2007). Indeed, the Third Department has separately ruled that "where, as here, there is no express time limitation for the right to use the easement...." property, that right should be deemed a license and not an Kampfer v. Dacorsi, 126 (3rd A.D.3d 1067, 1068 Dep't 2015) also citing Willow Tex, supra. Defendants respectfully submit that, at best, the Roeschlaub deed to Mervin and Barbara law," Miller is ambiguous, requiring, as a matter of the "policy of the that itbe deemed a license and not an easement. See Willow Tex and New York Land Development, supra. POINT IV "EASEMENT" PLAINTIFF'S USE OF THE TERM SHOULD BE PROHIBITED AT TRIAL The Complaint in this case claims "the use of a recreational area [and] the right to install lake." a pump with access to the See Plaintiff's Complaint (NYSCEF Document No. 1), paragraph 9. The Complaint then continues, at paragraph 11: The Plaintiff and Plaintiff's predecessors used the easements for recreational and access purposes for thirty years since the easements were granted. (emphasis added). See paragraph 11 of the Verified Complaint. 5 5 of 7 FILED: JEFFERSON COUNTY CLERK 05/24/2021 02:24 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 05/24/2021 "easement" The jury should not hear the word in connection with the Roeschlaub grant of the use of the property. At best, Plaintiff is limited to the language of the deed, itself,which granted "the use of,along with others, of a parcel of land along Lake Ontario, said land to be area...." used for docking boats, fishing, swimming and as a picnic No grant of real property rights was given: only a license to use theproperty, for certain purposes, "subject to the sale of grantor." "easement," the same by the Plaintiff should be directed not to use theterm either by counsel, by Plaintiff himself, or by his expert, Michael J. Yonkovig, Esq. Mr. Yonkovig has actually provided two different letters outlining his opinion of the matter. The first was given on June 19, 2017, making reference to "subject to the rights of ingress and egress [presumably including the recreation area easement]." h Mr. Yonkovig's June 19, 2017 letterat paragraph 1, attached to the accompanying Affirmation of Robert J. Slye, Strothers' Esq. With regard to the deed, Mr. Yonkovig makes reference to the document being easement...." "silent on the recreation area The letteralso recognizes that the deed to the Bevards' predecessor is likewise silent as to a recreation area easement and instead only claims "presumably" that itis included. Plaintiff's expert witness disclosure concerning Mr. Yonkovig's proposed testimony makes the claim that Mr. Yonkovig will testify that itis his deed," opinion that "there were easement rights granted in the 1984 and "that the casement effect." rights granted to the Millers are in full force and Mr. Yonkovig provided a second letter on September 29, 2020. In that letter,Mr. "ambiguity" Yonkovig interestingly misstates the import of what he, himself, calls an in the "use" subject to the sale of the same, by grantor's language of the deed. In his view, the law grantor" would resolve the ambiguous language against the drafter, the "common (Ms. Roeschlaub): but that is not the law. If the deed language is ambiguous as this Court has 6 6 of 7 FILED: JEFFERSON COUNTY CLERK 05/24/2021 02:24 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 128 RECEIVED NYSCEF: 05/24/2021 determined, and as Mr. Yonkovig believes, in saying "the use of said premises are subject to the grantor," "use" sale of the same by the the law requires that the claimed must be construed as a license, and not an easement to run with the land. See, New York Land Development Corp., supra. "easement" Plaintiff's witnesses must be directed no_t touse the term in discussing the recreation area use. CONCLUSION Defendants respectfully submit that these are not issues for the jury. Your Honor, having apparently found an ambiguity, with Plaintiff's expert in agreement, is obligated to instruct the jury that the ambiguity must be resolved in favor of a license, capable of being terminated at the will of the owners of the properties over which the Millers claim a license to recreate. The only question for the jury, then, will be ifthe license was terminated upon "the sale of the same by the grantor." Dated: May 24, 2021 Robert J. Slye, Esq. SLYE LAW OFFICES, P.C. Attorneys for Defendant David Strothers Office and P.O. Address 104 Washington Street Watertown, New York 13601 Telephone: (315) 786-0266 Ro . Bradley, Esq. MELVIN & MELVIN, PLLC Attorneys for Defendants Eric BeVard and Gretchen BeVard Office and P.O. Address 7th 217 South Salina Street, PlOOr Syracuse, New York 13202 Telephone: (315) 422-1333 7 7 of 7