Preview
FILED: JEFFERSON COUNTY CLERK 07/16/2021 11:08 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 07/16/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
KENNETI-I MILLER,
Plaintiff/Appellant
NOTICE OF APPEAL
vs. Index No.: EF2018-00001369
Assigned Justice: Hon. James P. McClusky, J.S.
ERIC BEVARD, GRETCHEN BEVARD AND
DAVID STROTHERS,
Defendants/Respondents.
PLEASE TAKE NOTICE, that the Plaintiff,KENNETH MILLER, hereby appeals to the
Appellate Division of the Supreme Court for the Fourth Judicial Department, hom the Order and Judgment
Defendants'
filedJune 21, 2021, which Order granted the Motion In Limine, dismissed the Plaintiff's
amended Coimplaint and granted Judgment to the Defelidants, which was granted on June 21, 2021 and filed
with the Jefferson County Clerk's Office on June 21, 2021. This Appeal isin respect to each and every part of
the Judgment and said Order of the Honorable James P. McClusky, ce of S reme Court,
DATED: June 30, 2021
THO . GIVAS, ESQ.
PAPPAS, COX, KIMPEL D & LEVINE, P.C.
Attorneys for the Plaintiff
KENNETH MILLER
614 James Street, Suite 100
Syracuse, New York 13203
(315) 472-4481
tgivas@pappascoxlaw.co
To:
ROBERT J. SLYE, ESQ.
SLYE'LAWOFFICES,T:C.
Attorney for Defendant Strothers
Office & P. O. Address
104 Washington Street
Watertowri, NY 13601
(315) 786-0266
rjs@slyelaw.com
ROGER W.BRADLEY ESQ. APPEAL-
â OTICE OF
MELVIN & MELVIN EF2018-00001369
Attorneys for Defendants Bevard 07/16/2021 11:08:21AM
Office & P. O. Address
217 South Salina Street
Gizelle J Meeks, Jefferson County Clerk Clerk: AC
Syracuse, NY 13202
(315) 422-1311
rbradley@melvinlaw.com
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FILED: JEFFERSON COUNTY CLERK 07/16/2021 11:08 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 07/16/2021
STATE OF NEW YORK
5UPREME COURT COUNTY OF JEFFERSON
KENNETH MILLER, NOTICE OF ENTRY
Plaintiff,
Index No. EF2018-00001369
ERIC BEVARD, GRETCHEN BEVARD and Assigned Justice:
DAVID STROTHERS, Hon. James P. McClusky, J.S.C.
Defendants.
PLEASE TAKE NOTICE that the attached Order was entered in the office of the
Jefferson County Clerk on June 21, 2021.
Dated: June 21, 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
TO: Thomas P. Givas, Esq.
Pappas, Cox, Kimpel, Dodd & Levine, P.C.
Attorneys for Plaintiff
614 James Street, Suite 100
Syracuse, New York 13203-2000
Telephone No.: (315) 472-4481
Roger W. Bradley, Esq.
Melvin & Melvin, PLLC
Attorneys for Defendants .
Eric Bevard and Gretchen Bevard
Office and P. O. Address
217 South Salina Street
Syracuse, New York 13202
Telephone: (315) 422-1311
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NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 07/16/2021
INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 15Ó RECEIVED NYSCEF: 06/21/20218
ftECEtVfJD
RFFERSON COUNTY
CUPREME COURT .
202iferi -9 fiM l i:35
At a Trial Tern1 of the New York State
Supreme Court in and for the County of
Jefferson held at the Dulles State Office
108"
Building, 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
RJINo. 22-19-0290
ERICBEVARD, GRETCHEN BEVARD, and
DAVID STROTHERS, . Assigned.Justice:
Hon. James P. McClusky, J.S.C.
Defendants.
WHEREAS, thismatter was scheduled-for ajury trialto commence on Monday,June7,
2021 in the Supreme Court for the County of Jefferson; and
WHEREAS, pursuant to Jefferson Coutity Supreme Court General Rules for Jury Trials
concerning motions i_n limine, Defendâüts Eric Bevard, Gretchen Bevard and David Strothers
moved for an order limiting Plaintiff's proffered testimony conceming the claimed grant-of a
easement" "use"
"recreation o other pel añêñt interest arising from deed Ianguage concerning
area" Defendañts'
of a certain "recreation on properties; and
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FILED: JEFFERSON COUNTY CLERK 07/16/2021 11:08 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 07/16/2021
INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 06/21/2021
Defendants'
WHÈREAS, motion i_n limine was made on May 24, 2021, with a return date
of June 7, 202 I at 8:45 a.m. in the forenoon; and
WHEREAS, Plaintiff Kenneth Miller cross-moved to limitthe testimony of Defendants
Defeñdants'
and 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 thePlaintiff 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,.Ésq., swom to on May
Defendants'
24, 202I and Memorandum of Law in support ofthe 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 i_n 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 whçthct 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 Depärtment in New York Land Development Corp. v.
2
2 of 3
4 of 5
FILED: JEFFERSON COUNTY CLERK 07/16/2021 11:08 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 07/16/2021
INDEX'NO. EF2018-00001·369
NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 06/21/2021
Bennett, 160 A.D.3d 1366 (4thpe rt2018); and the Court, having applied the law of those cases
to the factsas presented herein, itis hereby
ORDERED AND ADJUDGED, that the Verified Complaint and laterAmended
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 itbeing undisputed by the parties or counsel that the grantor
of the license, Edith Roesch!aub, isdeceased and this Court having determined thatany then
existing license expired upon her death, itis hereby further
ORDERED AND ADJUDGED, that judgnient 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. Ja P. McClus , J.S.C.
3
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FILED: JEFFERSON COUNTY CLERK 07/16/2021 11:08 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 07/16/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON KENNETI-I MILLER, Plaintiff/Appellant NOTICE OF APPEAL vs. Index No.: EF2018-00001369 Assigned Justice: Hon. James P. McClusky, J.S. ERIC BEVARD, GRETCHEN BEVARD AND DAVID STROTHERS, Defendants/Respondents. PLEASE TAKE NOTICE, that the Plaintiff,KENNETH MILLER, hereby appeals to the Appellate Division of the Supreme Court for the Fourth Judicial Department, hom the Order and Judgment Defendants' filedJune 21, 2021, which Order granted the Motion In Limine, dismissed the Plaintiff's amended Coimplaint and granted Judgment to the Defelidants, which was granted on June 21, 2021 and filed with the Jefferson County Clerk's Office on June 21, 2021. This Appeal isin respect to each and every part of the Judgment and said Order of the Honorable James P. McClusky, ce of S reme Court, DATED: June 30, 2021 THO . GIVAS, ESQ. PAPPAS, COX, KIMPEL D & LEVINE, P.C. Attorneys for the Plaintiff KENNETH MILLER 614 James Street, Suite 100 Syracuse, New York 13203 (315) 472-4481 tgivas@pappascoxlaw.co To: ROBERT J. SLYE, ESQ. SLYE'LAWOFFICES,T:C. Attorney for Defendant Strothers Office & P. O. Address 104 Washington Street Watertowri, NY 13601 (315) 786-0266 rjs@slyelaw.com ROGER W.BRADLEY ESQ. APPEAL- â OTICE OF MELVIN & MELVIN EF2018-00001369 Attorneys for Defendants Bevard 07/16/2021 11:08:21AM Office & P. O. Address 217 South Salina Street Gizelle J Meeks, Jefferson County Clerk Clerk: AC Syracuse, NY 13202 (315) 422-1311 rbradley@melvinlaw.com 1 of 5 FILED: JEFFERSON COUNTY CLERK 07/16/2021 11:08 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 07/16/2021 STATE OF NEW YORK 5UPREME COURT COUNTY OF JEFFERSON KENNETH MILLER, NOTICE OF ENTRY Plaintiff, Index No. EF2018-00001369 ERIC BEVARD, GRETCHEN BEVARD and Assigned Justice: DAVID STROTHERS, Hon. James P. McClusky, J.S.C. Defendants. PLEASE TAKE NOTICE that the attached Order was entered in the office of the Jefferson County Clerk on June 21, 2021. Dated: June 21, 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 TO: Thomas P. Givas, Esq. Pappas, Cox, Kimpel, Dodd & Levine, P.C. Attorneys for Plaintiff 614 James Street, Suite 100 Syracuse, New York 13203-2000 Telephone No.: (315) 472-4481 Roger W. Bradley, Esq. Melvin & Melvin, PLLC Attorneys for Defendants . Eric Bevard and Gretchen Bevard Office and P. O. Address 217 South Salina Street Syracuse, New York 13202 Telephone: (315) 422-1311 2 of 5 FILED: JEFFERSON COUNTY CLERK 07/16/2021 11:08 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 07/16/2021 INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 15Ó RECEIVED NYSCEF: 06/21/20218 ftECEtVfJD RFFERSON COUNTY CUPREME COURT . 202iferi -9 fiM l i:35 At a Trial Tern1 of the New York State Supreme Court in and for the County of Jefferson held at the Dulles State Office 108" Building, 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 RJINo. 22-19-0290 ERICBEVARD, GRETCHEN BEVARD, and DAVID STROTHERS, . Assigned.Justice: Hon. James P. McClusky, J.S.C. Defendants. WHEREAS, thismatter was scheduled-for ajury trialto commence on Monday,June7, 2021 in the Supreme Court for the County of Jefferson; and WHEREAS, pursuant to Jefferson Coutity Supreme Court General Rules for Jury Trials concerning motions i_n limine, Defendâüts Eric Bevard, Gretchen Bevard and David Strothers moved for an order limiting Plaintiff's proffered testimony conceming the claimed grant-of a easement" "use" "recreation o other pel añêñt interest arising from deed Ianguage concerning area" Defendañts' of a certain "recreation on properties; and .1 of 3 3 of 5 FILED: JEFFERSON COUNTY CLERK 07/16/2021 11:08 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 07/16/2021 INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 06/21/2021 Defendants' WHÈREAS, motion i_n limine was made on May 24, 2021, with a return date of June 7, 202 I at 8:45 a.m. in the forenoon; and WHEREAS, Plaintiff Kenneth Miller cross-moved to limitthe testimony of Defendants Defeñdants' and 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 thePlaintiff 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,.Ésq., swom to on May Defendants' 24, 202I and Memorandum of Law in support ofthe 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 i_n 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 whçthct 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 Depärtment in New York Land Development Corp. v. 2 2 of 3 4 of 5 FILED: JEFFERSON COUNTY CLERK 07/16/2021 11:08 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 153 RECEIVED NYSCEF: 07/16/2021 INDEX'NO. EF2018-00001·369 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 06/21/2021 Bennett, 160 A.D.3d 1366 (4thpe rt2018); and the Court, having applied the law of those cases to the factsas presented herein, itis hereby ORDERED AND ADJUDGED, that the Verified Complaint and laterAmended 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 itbeing undisputed by the parties or counsel that the grantor of the license, Edith Roesch!aub, isdeceased and this Court having determined thatany then existing license expired upon her death, itis hereby further ORDERED AND ADJUDGED, that judgnient 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. Ja P. McClus , J.S.C. 3 3 of 3 5 of 5