Preview
FILED: JEFFERSON COUNTY CLERK 02/24/2022 11:43 AM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 02/24/2022
EXHIBIT A
FILED: JEFFERSON COUNTY CLERK 02/24/2022 11:43 AM INDEX NO. EF2018-00001369
INDEX EF2018-00001369
NO.NYSCEF:
[FILED DOC.
NYSCEF : JEFFERSON
NO. 168 COUNTY CLERK 06/21/2021 01:$3 PM| RECEIVED 02/24/2022
NYSCEF DOC. NO. 151 RE %[V:ERONYSSF-tF1:8 -QfDh2J143021
NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 06 /21 /2021
Ri .GE i V E D
JE FERSON GOUNTY
CUPRE.MG COCT
At a Trial Term of the New York State
Supreme Court in and for the County of
Jefferson held at the Dulles State Office
10*
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
KFNNETH 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 Plaintiffs proffered testimony conceming the claimed grant of a
easement" "use"
"recreation or other permanent interest arising from deed language concerning
area" Defendants'
ofa certain "recreation on properties; and
2 of 4
FILED: JEFFERSON COUNTY CLERK 02/24/2022 11:43 AM INDEX NO. EF2018-00001369
INDEX EF2018-00001369
NO.NYSCEF:
(FILED: DOC. JEFFERSON
NYSCEF NO. 168 COUNTY CLERK 06/21/2021 01:33 PM) RECEIVED 02/24/2022
NYSCEF DOC. NO. 151 RESEjF;b/fIK 18-0 /tfo11M@21
NYSCEF DOC. No. 150 RECETVED NYSCEF: 06/21/2021
Defendants'
WHEREAS, motion in [[nline 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
Defendants'
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 behalfof Defendants Eric
Bevard and Gretchen Bevard by Roger W. Bradley, Esq.; and the Plaintiffs 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 Affim ation of Robert J. Slye, Esq., sworn to on May
Defendants'
24, 2021 and Memorandum of Law in support ofthe Motion dated May 24, 2021;
and having further reviewed the Plaintiffs Cross-Notice of Motion dated May 27, 2021, together
with the Affirmation of Thomas J. Givas, Esq., sworn to May 27, 2021, and Plaintiffs
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, 202l, and the Affirmation of
Roger W. Bradley, Esq. submitted in opposition to Plaintiff's Motion in limine; and
WHEREAS, the Court, found the language in the deed from Edith Roeschlaub to
having
Mervin Miller and Barbara Miller dated November 5, 1984. to be ambiguous as to whether the
conveyance was of an easement ora license; and the Court having further reviewed the New
York Court of Appeals in Willow Tex v. Dimacoppulos, 68 N.Y.2d 963 (1986) and, further, the
decision of the Appellate Division, Fourth Department in New York Land Develooment Corp
3 of 4
FILED: JEFFERSON COUNTY CLERK 02/24/2022 11:43 AM INDEX NO. EF2018-00001369
FILED DOC. INDEX NO.NYSCEF:
EF2018-00001369
NYSCEF : JEFFERSON
NO. 168 COUNTY CLERK 06/21/2021 01:33 PM RECEIVED 02/24/2022
NYSCEF REQF,@EINcJ9Y%©gg;gQ(py'
DOC. NO. 151 L1/32221
NYSCEF DOC. NO. l 50 RECEIVED NYSCEF: 06/2i /2021
(40'
Bennett, l60 A.D.3d 1366 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 judgrnent 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
Ilon. Ja P. McClus --, J.S.C.
3 of 3
4 of 4
Preview
FILED: JEFFERSON COUNTY CLERK 02/24/2022 11:43 AM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 168 RECEIVED NYSCEF: 02/24/2022 EXHIBIT A FILED: JEFFERSON COUNTY CLERK 02/24/2022 11:43 AM INDEX NO. EF2018-00001369 INDEX EF2018-00001369 NO.NYSCEF: [FILED DOC. NYSCEF : JEFFERSON NO. 168 COUNTY CLERK 06/21/2021 01:$3 PM| RECEIVED 02/24/2022 NYSCEF DOC. NO. 151 RE %[V:ERONYSSF-tF1:8 -QfDh2J143021 NYSCEF DOC. NO. 150 RECEIVED NYSCEF: 06 /21 /2021 Ri .GE i V E D JE FERSON GOUNTY CUPRE.MG COCT At a Trial Term of the New York State Supreme Court in and for the County of Jefferson held at the Dulles State Office 10* 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 KFNNETH 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 Plaintiffs proffered testimony conceming the claimed grant of a easement" "use" "recreation or other permanent interest arising from deed language concerning area" Defendants' ofa certain "recreation on properties; and 2 of 4 FILED: JEFFERSON COUNTY CLERK 02/24/2022 11:43 AM INDEX NO. EF2018-00001369 INDEX EF2018-00001369 NO.NYSCEF: (FILED: DOC. JEFFERSON NYSCEF NO. 168 COUNTY CLERK 06/21/2021 01:33 PM) RECEIVED 02/24/2022 NYSCEF DOC. NO. 151 RESEjF;b/fIK 18-0 /tfo11M@21 NYSCEF DOC. No. 150 RECETVED NYSCEF: 06/21/2021 Defendants' WHEREAS, motion in [[nline 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 Defendants' 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 behalfof Defendants Eric Bevard and Gretchen Bevard by Roger W. Bradley, Esq.; and the Plaintiffs 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 Affim ation of Robert J. Slye, Esq., sworn to on May Defendants' 24, 2021 and Memorandum of Law in support ofthe Motion dated May 24, 2021; and having further reviewed the Plaintiffs Cross-Notice of Motion dated May 27, 2021, together with the Affirmation of Thomas J. Givas, Esq., sworn to May 27, 2021, and Plaintiffs 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, 202l, and the Affirmation of Roger W. Bradley, Esq. submitted in opposition to Plaintiff's Motion in limine; and WHEREAS, the Court, found the language in the deed from Edith Roeschlaub to having Mervin Miller and Barbara Miller dated November 5, 1984. to be ambiguous as to whether the conveyance was of an easement ora license; and the Court having further reviewed the New York Court of Appeals in Willow Tex v. Dimacoppulos, 68 N.Y.2d 963 (1986) and, further, the decision of the Appellate Division, Fourth Department in New York Land Develooment Corp 3 of 4 FILED: JEFFERSON COUNTY CLERK 02/24/2022 11:43 AM INDEX NO. EF2018-00001369 FILED DOC. INDEX NO.NYSCEF: EF2018-00001369 NYSCEF : JEFFERSON NO. 168 COUNTY CLERK 06/21/2021 01:33 PM RECEIVED 02/24/2022 NYSCEF REQF,@EINcJ9Y%©gg;gQ(py' DOC. NO. 151 L1/32221 NYSCEF DOC. NO. l 50 RECEIVED NYSCEF: 06/2i /2021 (40' Bennett, l60 A.D.3d 1366 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 judgrnent 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 Ilon. Ja P. McClus --, J.S.C. 3 of 3 4 of 4