Preview
FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022
EXHIBIT B
FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022
. --.. - ----., -,,... - - ----. - -, - - , - -- - - - . .,. -..,
NYSCEF DOC. NO . 1 40 RECEIVED NYSCEF: 0 6/ 02 / 2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
KENNETH MILLER,
VERIFIED ANSWER
Plaintiff,
Index No. EF2018-00001369
v.
CHARLES PETER HUNKELE, JR., and
DAVID STROTHERS
Defendants.
Defendant David Strothers, for a Verified Answer to the Verified Complaint of
the Plaintiff:
1. Admits the allegations contained at paragraphs 3, 4, 5, 25 and 26 of the
Verified Complaint
2. Upon information and belief, admits the allegations contained at
paragraphs 1, 2,7 and 8 of the Verified Complaint.
3. Admits so much of the allegations contained atparagraph 9 of the Verified
Complaint which allege that the deeds granted an easement for "the use of, along with others,of
a parcel land along Lake Ontario, said land to be used fordocking boats, fishing,swimming and
area."
as a picnic The original deed from Edith R. Abbey Roeschlaub continued, however "the
grantor."
use of said premises are subject to the saleof the same by the
4. Deny knowicdge and information sufficient to form a beliefas to thetruth
or of the allegations contenad at paragraphs 6, 13, 14, 18 and 27 of the Verified
falsity 15, 17,
Complaint, and therefore deny the same.
5. Deny each and every remaining allegation of the Verified Complaint.
FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022
- -- . --- - -..--.. -- -.. - - ---._. - -, --, - - - - - - . . - ...-,
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 06/02/2021
FOR A FIRST AFFIRMATIVE DEFENSE
6. The deed from Roeschlaub to Mervin and Barbara Miller which called for
Millers'
the "use of... a parcel of land along Lake Ontario, said land to be used for docking boats,
area"
fishing, swimming and as a picnic is separate from the grant "conveying the right t0 install
a water pump and line from the lake to the above described 0.155 acre parcel, said water
grantees."
facilitiesto be maintained by the
7. The use, of docking boats, etc., was expressly made "subject to thesale of
grantor."
the same by the
8. That provision put Plaintiff and hispredecessors in titleon notice thatany
sale by Edith J. Roeschlaub of the burdened property would serve to terminate the recreational
use.
9. On September 20, 1996, Edith J. Roeschlaub, as trustee of her trust,
conveyed the parcel now owned by this Defendant to Bernard L. Harvey and Michele A. Harvey.
A copy of that deed is attached as exhibit A.
10. The Roeschlaub to Harvey deed contained a provision excepting and
reserving to the Millers the right to "come upon the above described premises to métain, repair
and/or replace the water pump and underground power and water lines running from said
pump..."
11. Otherwise, the deed from Roeschlaub to Harvey, being a sale by the
easement."
grantor, extinguished, as of 1996, PlaintifTs complained-of "recreation
FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022
. -- . --.. --- -- -..- - ----- ,.-, ..., - - - - - - . - - -..,
NYSCEF DOC.. NO. 140 RECEIVED NYSCEF: 06/02/2021
FOR A SECOND AFFIRMATIVE DEFENSE
12. This Defendant's land was so overgrown with underbrush and
undergrowth that Plaintiff could not possibly have utilized those lands for the claimed
area."
prescriptive use of "docking boats, fishing, swimming, or as a picnic
13. Subsequent to 1996, Plaintiff has not openly, notoriously, adverse'y, and
continuously utilized thisDefendant's land in the manner described in the Roeschlaub deed to
Plaintiffin 1984.
14. Any period of use of the property by Plaintiff or his predecessors intitle
between 1984 and 1996 was not adverse, but was pursuant to deed, which use was extinguished
in 1996, or was otherwise pennissive.
FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFF
15. Defendant repeats and realleges paragraphs 1 through 14 of this Verified
Answer.
16. Defendant is entitledto an order and judgment of this Court, pursuant to
CPLR 3001, declar;ag that to the extent of the Roeschlaub deed to Plaintiffs predecessors in
cascinsat,"
interestgranted the claimed "rscreatica itwas extinguished by its own terms by the
Roeschlaub deed to Harvey as attached as Exhibit A.
WHEREFORE, Defendant David Strothers demands judgment dismissing the
Complaint as against him, together with judgment on hiscounterclaim against Plaintifffora
declaration that Plaintiffs rights, as claimed to exist pursuant to the 1984 deed to PlaintifPs
predecessars in interest, was extinguished by the Roeschlaub sale to Harvey, together with
judgment for the costs of this action, disbursements, and such other and further reliefas the
Court deems just and proper.
3
FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022
- --- . --.. - -.-.. -- -.. . . ---- -- - -, - -, - - - - - . - - - --,
NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 06/02/2021
Dated: June 19, 2018
Robert J. Slye, E
SLYE LAW OFFICES, P.C.
Attomeys for Defendant
David Strothers
Office and P. 0. Address
104 Washington Street
Watertown, New York 13601
Telephone: (315) 786-0266
TO: Thomas P. Givas, Esq.
PAPPAS, COX, KIMPEL, DODD & LEVINE, P.C.
Attomeys for Plaintiff
614 James Street
Syracuse, New York 13203
Telephone: (315) 724-3164
Charles Peter Hunkele, Jr.,
80 North Dell Ave, Suite 12
Kenvil, New Jersey 07847
STATE OF NEW YORK )
) SS.:
COUNTY OF JEFFERSON )
Robert J. Slye, being duly swom, deposes and says thathe isthe attorney forDefendant
David Stmthers, that his office isnot in the same County as the Defendant, thathe has read the
foregoing Verified Answer, and that the same is true to his own knowledge, except as tothose
matters stated to be upon information and and
belief, as tothose matters he believes itto be true;
and that the basis for his knowledge is meetings, discussions, and correspondence with the
Defendant
S rn tobefore me this
6 day o June, 2018.
* rt4
COt1EEN A. HANMN
he W New Yd
Notary Public No. 01HA6314781
Commission Expires 11/17/20
4
FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022
-- . - -- - _.---. -- -.. - - --.--. - - , -- ,- -- - .. -. . - -..,
NYSt RECIDUl5DEl@S CEF308 6/0000F05
][ .: E ERSON COUNTY CLERK 0 7 0 9 2 018 11: 4 3
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/09/201
STATE OF NEW YORK COUNTY OF JEFFERSON
SUPREME COURT ..
KENNETH MILLER
Plaintiff,
-against-
ANSWER
CHARLES PETER HUNKELE, JR.
DAVID STROTHERS
Defendants, INDEX No.2018-1369
RJI No:
David A. Renzi, as Attorney for Defendant, in response to Plaintiffs
COMPLAINT, responds as follows;
1. Admits to the allegations complained of in paragraphs 4.
2. Lacks knowledge sufficient to form a belief to the allegations complained Of in
paragraphs 1, 3,6, 13, 18, 25 and 33.
3. Denies the allegations complained of in paragraphs 2, 9, 11, 12, 15, 19,20, 21,
22, 23, 24, 28, 29, 30, 31, 32, and 36.
4. Denies the allegations complained of in paragraphs 5, 7,8, 10, 14, 16,17, 26, 27,
34, and 35 and of the Complaint on the grounds that such allegations incorporate
concinaians of law, and that in fact are not allegations at all,but demands.
they
5. Denies each and every other allegation not herein specifically admitted,
denied, or otherwise controverted.
FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022
- ---- . --- - -..--.. -- -..- - ------ - -, .-, -,.-- ..- . .,, -.,
1F!t1r89·: COUNTY CLERK 07 O 9/ 2 018 11: 43 AB REUSNE MSUEF¾úpsynpOi(p
NETEFPBRSON /
NYSCEF DOC. No. 12 RECEIVED NYSCEF: 07/09/201E
AS AND FOR A FIRST
AFFIRMATIVE DEFENSE
6, The purported rights Plaintiff alleges from a Deed dated 11/05/1984, recorded
July 29, 1987, Liber 1081 at page 246, for use of a purported recreational easement, were
subject to the sale of the same (property) by grantor (Edith Roeschlaub).
7. he sale has long
since occurred; those purported recreational rights have
long since lapsed and been extinguished/removed.
8. ht there is no recreational area in existence, and any claimed rights against
Defendant is a misapplication of any prior temporary right.
AS AND FOR A SECOND
AFFIRMATIVE DEFENSE
9. ht upon information and belief, Plaintiff's entirely failed to comply with the
requisite duties of compliance (as outlined in Deed Liber 1081 page 246) with rules,
regulations, special permission for use, obtaining special booking for use, and
acquiring
at no point contributed to the maintenance costs for the recreational area prior to, or
subsequent to,those rights lapsing and being extinguished.
WHEREFORE, defendant demands judgment as follows:
1. ht the Complaint be dismissed in itsentirety, and.
2. For such other and relief as the court may deem just.
Dated·
July , 2018
David A. Renzi, Esq.
Attorney for Defendant
BROWN, DIERDORF and RENZI
165 Mullin Street
Watertown, New York 13601
FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022
----. --- - ----., ----. - - --.-. - .. ..-,---- --.... -.,
FEIRED: EMÈRSON COUNTY CLERK 07 / 0 9)2018 11: 43 W RECERMDE ElEISCE F30E5/OQ94Td65
07/09/2011
NYSCEF DOC. NO. 12 RECEIVED NYSCEF:
INDIVIDUAL VERIFICATION
STATE OF NEW YORK )
) as:
COUNTY OF JEFFERSON )
CHARLES P. HUNKELE, JR., being duly sworn, deposes and says;
1. That deponent is the'defendant in the within action
2. That deponent has read the foregairg ANSWER and knows the content
thereof.
3. That the same is true to deponents own knowledge except as to the material
therein stated to be on information and belief, and as to those matters, depar-Ent believes
itto be true,
Date: July , 2018
Sworn to me on this 1
day of July, 2018
Notary Public
RENZI
DAVID A. New York
State of
Public, OEHEC.074110
Notary
ReoistraUon No.
dek:sun County
Oûetifiedin 516120
Commission Ex pires
Preview
FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022 EXHIBIT B FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022 . --.. - ----., -,,... - - ----. - -, - - , - -- - - - . .,. -.., NYSCEF DOC. NO . 1 40 RECEIVED NYSCEF: 0 6/ 02 / 2021 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON KENNETH MILLER, VERIFIED ANSWER Plaintiff, Index No. EF2018-00001369 v. CHARLES PETER HUNKELE, JR., and DAVID STROTHERS Defendants. Defendant David Strothers, for a Verified Answer to the Verified Complaint of the Plaintiff: 1. Admits the allegations contained at paragraphs 3, 4, 5, 25 and 26 of the Verified Complaint 2. Upon information and belief, admits the allegations contained at paragraphs 1, 2,7 and 8 of the Verified Complaint. 3. Admits so much of the allegations contained atparagraph 9 of the Verified Complaint which allege that the deeds granted an easement for "the use of, along with others,of a parcel land along Lake Ontario, said land to be used fordocking boats, fishing,swimming and area." as a picnic The original deed from Edith R. Abbey Roeschlaub continued, however "the grantor." use of said premises are subject to the saleof the same by the 4. Deny knowicdge and information sufficient to form a beliefas to thetruth or of the allegations contenad at paragraphs 6, 13, 14, 18 and 27 of the Verified falsity 15, 17, Complaint, and therefore deny the same. 5. Deny each and every remaining allegation of the Verified Complaint. FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022 - -- . --- - -..--.. -- -.. - - ---._. - -, --, - - - - - - . . - ...-, NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 06/02/2021 FOR A FIRST AFFIRMATIVE DEFENSE 6. The deed from Roeschlaub to Mervin and Barbara Miller which called for Millers' the "use of... a parcel of land along Lake Ontario, said land to be used for docking boats, area" fishing, swimming and as a picnic is separate from the grant "conveying the right t0 install a water pump and line from the lake to the above described 0.155 acre parcel, said water grantees." facilitiesto be maintained by the 7. The use, of docking boats, etc., was expressly made "subject to thesale of grantor." the same by the 8. That provision put Plaintiff and hispredecessors in titleon notice thatany sale by Edith J. Roeschlaub of the burdened property would serve to terminate the recreational use. 9. On September 20, 1996, Edith J. Roeschlaub, as trustee of her trust, conveyed the parcel now owned by this Defendant to Bernard L. Harvey and Michele A. Harvey. A copy of that deed is attached as exhibit A. 10. The Roeschlaub to Harvey deed contained a provision excepting and reserving to the Millers the right to "come upon the above described premises to métain, repair and/or replace the water pump and underground power and water lines running from said pump..." 11. Otherwise, the deed from Roeschlaub to Harvey, being a sale by the easement." grantor, extinguished, as of 1996, PlaintifTs complained-of "recreation FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022 . -- . --.. --- -- -..- - ----- ,.-, ..., - - - - - - . - - -.., NYSCEF DOC.. NO. 140 RECEIVED NYSCEF: 06/02/2021 FOR A SECOND AFFIRMATIVE DEFENSE 12. This Defendant's land was so overgrown with underbrush and undergrowth that Plaintiff could not possibly have utilized those lands for the claimed area." prescriptive use of "docking boats, fishing, swimming, or as a picnic 13. Subsequent to 1996, Plaintiff has not openly, notoriously, adverse'y, and continuously utilized thisDefendant's land in the manner described in the Roeschlaub deed to Plaintiffin 1984. 14. Any period of use of the property by Plaintiff or his predecessors intitle between 1984 and 1996 was not adverse, but was pursuant to deed, which use was extinguished in 1996, or was otherwise pennissive. FOR A FIRST COUNTERCLAIM AGAINST PLAINTIFF 15. Defendant repeats and realleges paragraphs 1 through 14 of this Verified Answer. 16. Defendant is entitledto an order and judgment of this Court, pursuant to CPLR 3001, declar;ag that to the extent of the Roeschlaub deed to Plaintiffs predecessors in cascinsat," interestgranted the claimed "rscreatica itwas extinguished by its own terms by the Roeschlaub deed to Harvey as attached as Exhibit A. WHEREFORE, Defendant David Strothers demands judgment dismissing the Complaint as against him, together with judgment on hiscounterclaim against Plaintifffora declaration that Plaintiffs rights, as claimed to exist pursuant to the 1984 deed to PlaintifPs predecessars in interest, was extinguished by the Roeschlaub sale to Harvey, together with judgment for the costs of this action, disbursements, and such other and further reliefas the Court deems just and proper. 3 FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022 - --- . --.. - -.-.. -- -.. . . ---- -- - -, - -, - - - - - . - - - --, NYSCEF DOC. NO. 140 RECEIVED NYSCEF: 06/02/2021 Dated: June 19, 2018 Robert J. Slye, E SLYE LAW OFFICES, P.C. Attomeys for Defendant David Strothers Office and P. 0. Address 104 Washington Street Watertown, New York 13601 Telephone: (315) 786-0266 TO: Thomas P. Givas, Esq. PAPPAS, COX, KIMPEL, DODD & LEVINE, P.C. Attomeys for Plaintiff 614 James Street Syracuse, New York 13203 Telephone: (315) 724-3164 Charles Peter Hunkele, Jr., 80 North Dell Ave, Suite 12 Kenvil, New Jersey 07847 STATE OF NEW YORK ) ) SS.: COUNTY OF JEFFERSON ) Robert J. Slye, being duly swom, deposes and says thathe isthe attorney forDefendant David Stmthers, that his office isnot in the same County as the Defendant, thathe has read the foregoing Verified Answer, and that the same is true to his own knowledge, except as tothose matters stated to be upon information and and belief, as tothose matters he believes itto be true; and that the basis for his knowledge is meetings, discussions, and correspondence with the Defendant S rn tobefore me this 6 day o June, 2018. * rt4 COt1EEN A. HANMN he W New Yd Notary Public No. 01HA6314781 Commission Expires 11/17/20 4 FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022 -- . - -- - _.---. -- -.. - - --.--. - - , -- ,- -- - .. -. . - -.., NYSt RECIDUl5DEl@S CEF308 6/0000F05 ][ .: E ERSON COUNTY CLERK 0 7 0 9 2 018 11: 4 3 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/09/201 STATE OF NEW YORK COUNTY OF JEFFERSON SUPREME COURT .. KENNETH MILLER Plaintiff, -against- ANSWER CHARLES PETER HUNKELE, JR. DAVID STROTHERS Defendants, INDEX No.2018-1369 RJI No: David A. Renzi, as Attorney for Defendant, in response to Plaintiffs COMPLAINT, responds as follows; 1. Admits to the allegations complained of in paragraphs 4. 2. Lacks knowledge sufficient to form a belief to the allegations complained Of in paragraphs 1, 3,6, 13, 18, 25 and 33. 3. Denies the allegations complained of in paragraphs 2, 9, 11, 12, 15, 19,20, 21, 22, 23, 24, 28, 29, 30, 31, 32, and 36. 4. Denies the allegations complained of in paragraphs 5, 7,8, 10, 14, 16,17, 26, 27, 34, and 35 and of the Complaint on the grounds that such allegations incorporate concinaians of law, and that in fact are not allegations at all,but demands. they 5. Denies each and every other allegation not herein specifically admitted, denied, or otherwise controverted. FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022 - ---- . --- - -..--.. -- -..- - ------ - -, .-, -,.-- ..- . .,, -., 1F!t1r89·: COUNTY CLERK 07 O 9/ 2 018 11: 43 AB REUSNE MSUEF¾úpsynpOi(p NETEFPBRSON / NYSCEF DOC. No. 12 RECEIVED NYSCEF: 07/09/201E AS AND FOR A FIRST AFFIRMATIVE DEFENSE 6, The purported rights Plaintiff alleges from a Deed dated 11/05/1984, recorded July 29, 1987, Liber 1081 at page 246, for use of a purported recreational easement, were subject to the sale of the same (property) by grantor (Edith Roeschlaub). 7. he sale has long since occurred; those purported recreational rights have long since lapsed and been extinguished/removed. 8. ht there is no recreational area in existence, and any claimed rights against Defendant is a misapplication of any prior temporary right. AS AND FOR A SECOND AFFIRMATIVE DEFENSE 9. ht upon information and belief, Plaintiff's entirely failed to comply with the requisite duties of compliance (as outlined in Deed Liber 1081 page 246) with rules, regulations, special permission for use, obtaining special booking for use, and acquiring at no point contributed to the maintenance costs for the recreational area prior to, or subsequent to,those rights lapsing and being extinguished. WHEREFORE, defendant demands judgment as follows: 1. ht the Complaint be dismissed in itsentirety, and. 2. For such other and relief as the court may deem just. Dated· July , 2018 David A. Renzi, Esq. Attorney for Defendant BROWN, DIERDORF and RENZI 165 Mullin Street Watertown, New York 13601 FILED: JEFFERSON COUNTY CLERK 02/22/2022 11:18 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 158 RECEIVED NYSCEF: 02/22/2022 ----. --- - ----., ----. - - --.-. - .. ..-,---- --.... -., FEIRED: EMÈRSON COUNTY CLERK 07 / 0 9)2018 11: 43 W RECERMDE ElEISCE F30E5/OQ94Td65 07/09/2011 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: INDIVIDUAL VERIFICATION STATE OF NEW YORK ) ) as: COUNTY OF JEFFERSON ) CHARLES P. HUNKELE, JR., being duly sworn, deposes and says; 1. That deponent is the'defendant in the within action 2. That deponent has read the foregairg ANSWER and knows the content thereof. 3. That the same is true to deponents own knowledge except as to the material therein stated to be on information and belief, and as to those matters, depar-Ent believes itto be true, Date: July , 2018 Sworn to me on this 1 day of July, 2018 Notary Public RENZI DAVID A. New York State of Public, OEHEC.074110 Notary ReoistraUon No. dek:sun County Oûetifiedin 516120 Commission Ex pires