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At a Trial Term of the New York State
Supreme Court in and for the County of
Jefferson held at the Dulles State Office
Building, 10th Floor, 317 Washington Street,
Watertown, New York 13601 on the 7th day
of June, 2021 at 8:45 a.m. in the forenoon.
PRESENT: HON. JAMES P. McCLUSKY, J.S.C.
SUPREME COURT JUSTICE
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
_____________________________________________
KENNETH MILLER,
ORDER AND JUDGMENT
Plaintiff,
v. Index No. EF2018-00001369
RJI No. 22-19-0290
ERIC BEVARD, GRETCHEN BEVARD, and
DAVID STROTHERS, Assigned Justice:
Hon. James P. McClusky, J.S.C.
Defendants.
______________________________________________
WHEREAS, this matter was scheduled for a jury trial to commence on Monday, June 7,
2021 in the Supreme Court for the County of Jefferson; and
WHEREAS, pursuant to Jefferson County Supreme Court General Rules for Jury Trials
concerning motions in limine, Defendants Eric Bevard, Gretchen Bevard and David Strothers
moved for an order limiting Plaintiff’s proffered testimony concerning the claimed grant of a
“recreation easement” or other permanent interest arising from deed language concerning “use”
of a certain “recreation area” on Defendants’ properties; and
WHEREAS, Defendants’ motion in limine was made on May 24, 2021, with a return date
of June 7, 2021 at 8:45 a.m. in the forenoon; and
WHEREAS, Plaintiff Kenneth Miller cross-moved to limit the testimony of Defendants
and Defendants’ experts in connection with the deed language; and
WHEREAS, on the return date, the motions in limine were argued on behalf of
Defendant David Strothers, by Attorney Robert J. Slye, Esq.; on behalf of Defendants Eric
Bevard and Gretchen Bevard by Roger W. Bradley, Esq.; and the Plaintiff’s Cross-Motion was
argued by Thomas P. Givas, Esq.; and
WHEREAS, the Court, having reviewed the Notice of Motion of Defendants dated May
24, 2021, with exhibits, together with the Affirmation of Robert J. Slye, Esq., sworn to on May
24, 2021 and Defendants’ Memorandum of Law in support of the Motion dated May 24, 2021;
and having further reviewed the Plaintiff’s Cross-Notice of Motion dated May 27, 2021, together
with the Affirmation of Thomas J. Givas, Esq., sworn to May 27, 2021, and Plaintiff’s
Memorandum of Law in support of the Cross-Motion dated May 27, 2021, and having further
reviewed the Affirmation of Robert J. Slye, Esq. dated June 2, 2021, and the Affirmation of
Roger W. Bradley, Esq. submitted in opposition to Plaintiff’s Motion in limine; and
WHEREAS, the Court, having found the language in the deed from Edith Roeschlaub to
Mervin Miller and Barbara Miller dated November 5, 1984, to be ambiguous as to whether the
conveyance was of an easement or a license; and the Court having further reviewed the New
York Court of Appeals in Willow Tex v. Dimacopoulos, 68 N.Y.2d 963 (1986) and, further, the
decision of the Appellate Division, Fourth Department in New York Land Development Corp. v.
2
Bennett, 160 A.D.3d 1366 (4th Dep’t 2018); and the Court, having applied the law of those cases
to the facts as presented herein, it is hereby
ORDERED AND ADJUDGED, that the Verified Complaint and later Amended
Complaint of the Plaintiff are hereby dismissed on the grounds that the Roeschlaub deed to
Mervin and Barbara Miller was, as a matter of law, ambiguous and therefore constituted a
license rather than an easement; and it being undisputed by the parties or counsel that the grantor
of the license, Edith Roeschlaub, is deceased and this Court having determined that any then
existing license expired upon her death, it is hereby further
ORDERED AND ADJUDGED, that judgment is granted in favor of the Defendants
against the Plaintiff dismissing each of the causes of action of the Verified Complaint and/or
Amended Verified Complaint and Defendants shall have judgment therefor.
Dated: June _______, 2021
Watertown, New York
ENTER
Hon. James P. McClusky, J.S.C.
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Preview
At a Trial Term of the New York State Supreme Court in and for the County of Jefferson held at the Dulles State Office Building, 10th Floor, 317 Washington Street, Watertown, New York 13601 on the 7th day of June, 2021 at 8:45 a.m. in the forenoon. PRESENT: HON. JAMES P. McCLUSKY, J.S.C. SUPREME COURT JUSTICE STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON _____________________________________________ KENNETH MILLER, ORDER AND JUDGMENT Plaintiff, v. Index No. EF2018-00001369 RJI No. 22-19-0290 ERIC BEVARD, GRETCHEN BEVARD, and DAVID STROTHERS, Assigned Justice: Hon. James P. McClusky, J.S.C. Defendants. ______________________________________________ WHEREAS, this matter was scheduled for a jury trial to commence on Monday, June 7, 2021 in the Supreme Court for the County of Jefferson; and WHEREAS, pursuant to Jefferson County Supreme Court General Rules for Jury Trials concerning motions in limine, Defendants Eric Bevard, Gretchen Bevard and David Strothers moved for an order limiting Plaintiff’s proffered testimony concerning the claimed grant of a “recreation easement” or other permanent interest arising from deed language concerning “use” of a certain “recreation area” on Defendants’ properties; and WHEREAS, Defendants’ motion in limine was made on May 24, 2021, with a return date of June 7, 2021 at 8:45 a.m. in the forenoon; and WHEREAS, Plaintiff Kenneth Miller cross-moved to limit the testimony of Defendants and Defendants’ experts in connection with the deed language; and WHEREAS, on the return date, the motions in limine were argued on behalf of Defendant David Strothers, by Attorney Robert J. Slye, Esq.; on behalf of Defendants Eric Bevard and Gretchen Bevard by Roger W. Bradley, Esq.; and the Plaintiff’s Cross-Motion was argued by Thomas P. Givas, Esq.; and WHEREAS, the Court, having reviewed the Notice of Motion of Defendants dated May 24, 2021, with exhibits, together with the Affirmation of Robert J. Slye, Esq., sworn to on May 24, 2021 and Defendants’ Memorandum of Law in support of the Motion dated May 24, 2021; and having further reviewed the Plaintiff’s Cross-Notice of Motion dated May 27, 2021, together with the Affirmation of Thomas J. Givas, Esq., sworn to May 27, 2021, and Plaintiff’s Memorandum of Law in support of the Cross-Motion dated May 27, 2021, and having further reviewed the Affirmation of Robert J. Slye, Esq. dated June 2, 2021, and the Affirmation of Roger W. Bradley, Esq. submitted in opposition to Plaintiff’s Motion in limine; and WHEREAS, the Court, having found the language in the deed from Edith Roeschlaub to Mervin Miller and Barbara Miller dated November 5, 1984, to be ambiguous as to whether the conveyance was of an easement or a license; and the Court having further reviewed the New York Court of Appeals in Willow Tex v. Dimacopoulos, 68 N.Y.2d 963 (1986) and, further, the decision of the Appellate Division, Fourth Department in New York Land Development Corp. v. 2 Bennett, 160 A.D.3d 1366 (4th Dep’t 2018); and the Court, having applied the law of those cases to the facts as presented herein, it is hereby ORDERED AND ADJUDGED, that the Verified Complaint and later Amended Complaint of the Plaintiff are hereby dismissed on the grounds that the Roeschlaub deed to Mervin and Barbara Miller was, as a matter of law, ambiguous and therefore constituted a license rather than an easement; and it being undisputed by the parties or counsel that the grantor of the license, Edith Roeschlaub, is deceased and this Court having determined that any then existing license expired upon her death, it is hereby further ORDERED AND ADJUDGED, that judgment is granted in favor of the Defendants against the Plaintiff dismissing each of the causes of action of the Verified Complaint and/or Amended Verified Complaint and Defendants shall have judgment therefor. Dated: June _______, 2021 Watertown, New York ENTER Hon. James P. McClusky, J.S.C. 3