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 06/02/2021 03:40 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 06/02/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OFJEFFERSON
KENNETH MILLER,
Plaintiff PLAINTIFF'S AFFIDAVIT IN OPPOSITION
DEFENDANTS'
-vs- TO MOTION IN LIMINE
Index No. EF2018-00001369
RJI 22-190290
ERIC BEVARD, GRETCHEN BEVARD
And DAVID STROTHERS, Assigned Justice:
Defendants HON. JAMES P. MCCLUSKY, J.S.C.
STATE OF NEW YORK )
COUNTY OF ONONDAGA ) SS.:
THOMAS P. GIVAS, being duly sworn, deposes and says:
1. I am an attorney at law, duly admitted to practice in the State of New York and a
member of the law firm of Pappas, Cox, Kimpel, Dodd & Levine, P.C., attorneys for the
Plaintiff, Kenneth Miller, in this matter. As such, deponent is fully familiar with the facts and
circumstances of this matter.
Defendants'
2. Deponent makes this affidavit in opposition to the Motion in Limine
seeking to limit the use of the term "easement".
3. While the Plaintiff references the initial Summons and Complaint, the survey
attached to that Complaint was mistaken. That mistake was corrected by means of an
Amended Complaint. A copy of the Amended Complaint is annexed hereto, made a part
hereof and labeled Exhibit A.
4. It is important to note that the initial transaction involving the Roeschlaubs and the
Millers occurred in 1984 and 1985, which is the date of the survey annexed to the Amended
Complaint.
5. The 1996 survey related to the Roeschlaubs transfer to Harvey. The Millers had
nothing to do with that transfer and indeed, that survey did not exist at the time of the transfer
from Roeschlaubs to the Millers.
Defendants'
6. Accordingly, the references to that survey are basically irrelevant.
7. It is important to note that the Court has indicated that the determination as to
whether or not an easement exists is an issue which will be referred to the Jury and will
depend upon the Jury's interpretation of the Agreement and the surrounding circumstances.
8. In this case, however, it is clearly important to note that both Defendants have
admitted that the action involves a recreational area easement.
9. Annexed hereto, made a part hereof and labeled Exhibit B is a copy of the Answer
from the Defendant Strothers.
1 of 2
FILED: JEFFERSON COUNTY CLERK 06/02/2021 03:40 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 06/02/2021
10. Paragraph Three of that Answer states that the Defendant Strothers admits so
much of the Verified Complaint that a!!eges the deed granting an easement for the use, along
with others, of a parcel of land along Lake Ontario to be used for docking boats, fishing,
swimming and a picnic area.
11. Similarly, the Defendant Hunkele's attorneys in correspondence dated September
27, 2017 clearly stated that there was a recreational easement that Plaintiffs could enjoy. A
copy of that letter is annexed hereto C.
12. A copy of said Defendant's Answer is annexed hereto as Exhibit D, which again
refers to the matter as an Easement.
13. Accordingly, the Defendants have admitted that recreational easements are
involved. Their admissions, alone, require that the Defendant's Motion in Limine be denied.
14. In addition, Plaintiff has repeatedly indicated that the deed in question indicates
that an easement was granted when the rules of interpretation are applied. The deed uses
"grants" "heirs"
the words and "conveys". It also mentions the words and "assigns". There is
no termination language in the deed and the use is not personal to any person in question.
All of these references in the deed indicate that the words in the deed should be construed as
an easement.
15. The surrounding circurnstances also indicate that the matter is an easement. The
testimony of Mr. Ellinger, a copy of which is annexed hereto as Exhibit E indicates that in his
discussions with the Millers they indicated that the matter was permanent.
16. Mr. Harvey, who transferred his property to the Strothers indicated that it was his
understanding that a written termination of the easement would be required. No such written
termination was obtained. Annexed hereto as Exhibit F is his testimony.
17. In summary, the wording of the deed indicates that an easement was granted. The
surrounding circumstances also indicate that this was an easement.
18. Finally and most importantly, the Defendants have admitted the wording
constituted an easement.
19. As such, the Defendant's Motion in Limine m e ied.
THOMAS P A
Sworn and ubscribed to before
Me-.t is Å day of Ju es 2021
NOTARY PUBLIC
DONNA M. LUVAN
York
Notary Public State of New
Quahfied in Onondnoa county
0iSUB105011 , d
My Commission Expires 04/26/20 \
2 of 2
Document Filed Date
June 02, 2021
Case Filing Date
June 07, 2018
Category
Real Property - Other (Declaratory Judgment/Ease)
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FILED: JEFFERSON COUNTY CLERK 06/02/2021 03:40 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 06/02/2021 STATE OF NEW YORK SUPREME COURT COUNTY OFJEFFERSON KENNETH MILLER, Plaintiff PLAINTIFF'S AFFIDAVIT IN OPPOSITION DEFENDANTS' -vs- TO MOTION IN LIMINE Index No. EF2018-00001369 RJI 22-190290 ERIC BEVARD, GRETCHEN BEVARD And DAVID STROTHERS, Assigned Justice: Defendants HON. JAMES P. MCCLUSKY, J.S.C. STATE OF NEW YORK ) COUNTY OF ONONDAGA ) SS.: THOMAS P. GIVAS, being duly sworn, deposes and says: 1. I am an attorney at law, duly admitted to practice in the State of New York and a member of the law firm of Pappas, Cox, Kimpel, Dodd & Levine, P.C., attorneys for the Plaintiff, Kenneth Miller, in this matter. As such, deponent is fully familiar with the facts and circumstances of this matter. Defendants' 2. Deponent makes this affidavit in opposition to the Motion in Limine seeking to limit the use of the term "easement". 3. While the Plaintiff references the initial Summons and Complaint, the survey attached to that Complaint was mistaken. That mistake was corrected by means of an Amended Complaint. A copy of the Amended Complaint is annexed hereto, made a part hereof and labeled Exhibit A. 4. It is important to note that the initial transaction involving the Roeschlaubs and the Millers occurred in 1984 and 1985, which is the date of the survey annexed to the Amended Complaint. 5. The 1996 survey related to the Roeschlaubs transfer to Harvey. The Millers had nothing to do with that transfer and indeed, that survey did not exist at the time of the transfer from Roeschlaubs to the Millers. Defendants' 6. Accordingly, the references to that survey are basically irrelevant. 7. It is important to note that the Court has indicated that the determination as to whether or not an easement exists is an issue which will be referred to the Jury and will depend upon the Jury's interpretation of the Agreement and the surrounding circumstances. 8. In this case, however, it is clearly important to note that both Defendants have admitted that the action involves a recreational area easement. 9. Annexed hereto, made a part hereof and labeled Exhibit B is a copy of the Answer from the Defendant Strothers. 1 of 2 FILED: JEFFERSON COUNTY CLERK 06/02/2021 03:40 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 138 RECEIVED NYSCEF: 06/02/2021 10. Paragraph Three of that Answer states that the Defendant Strothers admits so much of the Verified Complaint that a!!eges the deed granting an easement for the use, along with others, of a parcel of land along Lake Ontario to be used for docking boats, fishing, swimming and a picnic area. 11. Similarly, the Defendant Hunkele's attorneys in correspondence dated September 27, 2017 clearly stated that there was a recreational easement that Plaintiffs could enjoy. A copy of that letter is annexed hereto C. 12. A copy of said Defendant's Answer is annexed hereto as Exhibit D, which again refers to the matter as an Easement. 13. Accordingly, the Defendants have admitted that recreational easements are involved. Their admissions, alone, require that the Defendant's Motion in Limine be denied. 14. In addition, Plaintiff has repeatedly indicated that the deed in question indicates that an easement was granted when the rules of interpretation are applied. The deed uses "grants" "heirs" the words and "conveys". It also mentions the words and "assigns". There is no termination language in the deed and the use is not personal to any person in question. All of these references in the deed indicate that the words in the deed should be construed as an easement. 15. The surrounding circurnstances also indicate that the matter is an easement. The testimony of Mr. Ellinger, a copy of which is annexed hereto as Exhibit E indicates that in his discussions with the Millers they indicated that the matter was permanent. 16. Mr. Harvey, who transferred his property to the Strothers indicated that it was his understanding that a written termination of the easement would be required. No such written termination was obtained. Annexed hereto as Exhibit F is his testimony. 17. In summary, the wording of the deed indicates that an easement was granted. The surrounding circumstances also indicate that this was an easement. 18. Finally and most importantly, the Defendants have admitted the wording constituted an easement. 19. As such, the Defendant's Motion in Limine m e ied. THOMAS P A Sworn and ubscribed to before Me-.t is Å day of Ju es 2021 NOTARY PUBLIC DONNA M. LUVAN York Notary Public State of New Quahfied in Onondnoa county 0iSUB105011 , d My Commission Expires 04/26/20 \ 2 of 2