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 03/24/2022 03:58 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 03/24/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
KENNETH MILLER,
Plaintiff, AFFIRMATION IN
OPPOSITION TO
-against- PLAINTIFF'S REQUEST
FOR A PRELIMINARY
INJUNCTION
ERIC BEVARD, GRETCHEN BEVARD, and
DAVID STROTHERS, Index No EF2018-00001369
Defendants.
ROGER W. BRADLEY, being an attorney authorized to practice law in the State of New
York, hereby affirms under penalty of perjury that:
1. I am a member of the Firm of Melvin & Melvin, PLLC, attorneys for Defendants
Gretchen and Eric Bevard and familiar with all of the facts and circumstances herein.
I submit this Affirmation in Opposition on multiple legal and factual grounds to the
motion of Plaintiff for a preliminary injunction.
NO PENDING ACTION
2. Firstly, a preliminary injunction may only be granted as an incident of a pending
action. The action commenced by Plaintiff had already been dismissed by this Court.
3. Affiant submits that the Index number under which this motion is brought by Plaintiff
is the same index number as the action already dismissed by this Court. See NYSCEF
Documentl 50.
4. Additionally, "[i]njunctive relief is simply not available when the plaintiff does not
defendants."
have any . .. substantive cause of action against [the] Weinreb v. 37 Apts
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FILED: JEFFERSON COUNTY CLERK 03/24/2022 03:58 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 03/24/2022
Corp., 97 A.D.3d 54 (1st Dept. 2012). Being that the Complaint and Amended
Complaint were dismissed in their entirety on June 21, 2021, there are no pending
substantive causes of action against the Bevards for which injunctive relief can be
granted.
RES JUDICATA PRECLUDES PLAINTIFF'S MOTION
5. Secondly, the issues relevant to this motion are precluded by the doctrine of res
judicata which bars claims by Plaintiff which were litigated or could have been
litigated in the prior action. Your affiant hereby refers the Court to and incorporates
herein the relevant documents in this case including Plaintiff's Verified Complaint
and Amended Verified Complaint at NYSCEF Documents 1 and 86 respectively. The
Amended Verified Complaint alleges at paragraph 15 Plaintiff's claimed rights of
"ingress and egress across the parcel as mentioned in the deeds to Harvey and
Miller..."
Based upon the pleadings in the case, the documents submitted to the
Court, the issues raised and the Order and Judgment of this Court itis respectfully
submitted that Plaintiff's motion herein and his claim to be entitled to the rights
asserted herein is barred by the doctrine of Res Judicata.
NO IRREPARABLE HARM
6. Plaintiff has failed to establish irreparable hann by reason of the acts alleged, a
required element for establishing the necessity of injunctive relief.
7. This Court had all Plaintiffs claims before it, including the claimed right-of-way now
alleged by Plaintiff. Further, Plaintiff does not even purport to claim that he is unable
to use the right-of-way he claims for access to itsproperty. Plaintiffs Exhibit I does
not show anything to the contrary.
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FILED: JEFFERSON COUNTY CLERK 03/24/2022 03:58 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 03/24/2022
8. All that can be gleaned from Plaintiff s Affidavit is that he claims to assert a right he
does not have i.e. to require that the Bevard's mailbox be moved. Plaintiff does not
own the property but merely alleges a right-of-way which has been resolved against
him by reason of the prior litigation. Gretchen and Eric Bevard are the owners of the
real which is not subject to even a claimed access right-of - pursuant to
property way
"
the Order and Judgment of this Court. Indeed, even Plaintiff's use of the term
easement"
is itself contrary to the ruling of this Court which established that Plaintiff
never even had an easement. Plaintiff has no legal basis to seek injunctive relief
against the Bevards.
9. Affiant submits that Plaintiff s motion is without merit as a matter of law and fact and
should be dismissed by the Court.
10. That insofar as Plaintiff has attached a survey I refer the Court to a more recent
survey as filed by attorney Slye prior to trial (NSCEF Document 125). Insofar as
Plaintiff attaches a self- letter of counsel as an Exhibit to his I attach
serving motion,
as Exhibit 1 hereto my email of the preceding day which expressly advised regarding
access to the driveway "Any issue of property rights between the parties was
detennined in Court. The Bevards won. Miller lost. Miller's case Complaint was
over."
dismissed in itsentirety. It isall Plaintiff's motion now before the Court should
be denied.
WHEREFORE, Defendants Eric and Gretchen Bevard request an Order of this Court
denying Plaintiffs motion, and granting Defendants such other, further and different relief as the
Court deems just and proper.
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FILED: JEFFERSON COUNTY CLERK 03/24/2022 03:58 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 03/24/2022
Dated: March 24, 2022
Syracuse, New York
MELVIN & MELVIN, PLLC
By: W. radley, .
Attorney for Defendants
Eric and Gretchen Bevard
Office and P.O. Address
7th
217 S. Salina St.,
Syracuse, New York 13202
Tel: (315) 422-1311
rbradley@melvinlaw.com
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FILED: JEFFERSON COUNTY CLERK 03/24/2022 03:58 PM INDEX NO. EF2018-00001369
NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 03/24/2022
CERTIFICATION OF WORD COUNT PURSUANT TO RULE 202.8-B(C)
I,Roger W. Bradley, Esq., attorney for Defendant Eric and Gretchen Bevard herein,
certify that this Affirmation has a total word count, excluding the case caption and signature
block, of 710. I further certify to this Court that this Attorney Affirmation's word count is in
compliance with the word count limit of 7,000 as set forth in Rule 202.8-b(a)(i).
Roge . Brad y
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Document Filed Date
March 24, 2022
Case Filing Date
June 07, 2018
Category
Real Property - Other (Declaratory Judgment/Ease)
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FILED: JEFFERSON COUNTY CLERK 03/24/2022 03:58 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 03/24/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON KENNETH MILLER, Plaintiff, AFFIRMATION IN OPPOSITION TO -against- PLAINTIFF'S REQUEST FOR A PRELIMINARY INJUNCTION ERIC BEVARD, GRETCHEN BEVARD, and DAVID STROTHERS, Index No EF2018-00001369 Defendants. ROGER W. BRADLEY, being an attorney authorized to practice law in the State of New York, hereby affirms under penalty of perjury that: 1. I am a member of the Firm of Melvin & Melvin, PLLC, attorneys for Defendants Gretchen and Eric Bevard and familiar with all of the facts and circumstances herein. I submit this Affirmation in Opposition on multiple legal and factual grounds to the motion of Plaintiff for a preliminary injunction. NO PENDING ACTION 2. Firstly, a preliminary injunction may only be granted as an incident of a pending action. The action commenced by Plaintiff had already been dismissed by this Court. 3. Affiant submits that the Index number under which this motion is brought by Plaintiff is the same index number as the action already dismissed by this Court. See NYSCEF Documentl 50. 4. Additionally, "[i]njunctive relief is simply not available when the plaintiff does not defendants." have any . .. substantive cause of action against [the] Weinreb v. 37 Apts 1 of 5 FILED: JEFFERSON COUNTY CLERK 03/24/2022 03:58 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 03/24/2022 Corp., 97 A.D.3d 54 (1st Dept. 2012). Being that the Complaint and Amended Complaint were dismissed in their entirety on June 21, 2021, there are no pending substantive causes of action against the Bevards for which injunctive relief can be granted. RES JUDICATA PRECLUDES PLAINTIFF'S MOTION 5. Secondly, the issues relevant to this motion are precluded by the doctrine of res judicata which bars claims by Plaintiff which were litigated or could have been litigated in the prior action. Your affiant hereby refers the Court to and incorporates herein the relevant documents in this case including Plaintiff's Verified Complaint and Amended Verified Complaint at NYSCEF Documents 1 and 86 respectively. The Amended Verified Complaint alleges at paragraph 15 Plaintiff's claimed rights of "ingress and egress across the parcel as mentioned in the deeds to Harvey and Miller..." Based upon the pleadings in the case, the documents submitted to the Court, the issues raised and the Order and Judgment of this Court itis respectfully submitted that Plaintiff's motion herein and his claim to be entitled to the rights asserted herein is barred by the doctrine of Res Judicata. NO IRREPARABLE HARM 6. Plaintiff has failed to establish irreparable hann by reason of the acts alleged, a required element for establishing the necessity of injunctive relief. 7. This Court had all Plaintiffs claims before it, including the claimed right-of-way now alleged by Plaintiff. Further, Plaintiff does not even purport to claim that he is unable to use the right-of-way he claims for access to itsproperty. Plaintiffs Exhibit I does not show anything to the contrary. 2 of 5 FILED: JEFFERSON COUNTY CLERK 03/24/2022 03:58 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 03/24/2022 8. All that can be gleaned from Plaintiff s Affidavit is that he claims to assert a right he does not have i.e. to require that the Bevard's mailbox be moved. Plaintiff does not own the property but merely alleges a right-of-way which has been resolved against him by reason of the prior litigation. Gretchen and Eric Bevard are the owners of the real which is not subject to even a claimed access right-of - pursuant to property way " the Order and Judgment of this Court. Indeed, even Plaintiff's use of the term easement" is itself contrary to the ruling of this Court which established that Plaintiff never even had an easement. Plaintiff has no legal basis to seek injunctive relief against the Bevards. 9. Affiant submits that Plaintiff s motion is without merit as a matter of law and fact and should be dismissed by the Court. 10. That insofar as Plaintiff has attached a survey I refer the Court to a more recent survey as filed by attorney Slye prior to trial (NSCEF Document 125). Insofar as Plaintiff attaches a self- letter of counsel as an Exhibit to his I attach serving motion, as Exhibit 1 hereto my email of the preceding day which expressly advised regarding access to the driveway "Any issue of property rights between the parties was detennined in Court. The Bevards won. Miller lost. Miller's case Complaint was over." dismissed in itsentirety. It isall Plaintiff's motion now before the Court should be denied. WHEREFORE, Defendants Eric and Gretchen Bevard request an Order of this Court denying Plaintiffs motion, and granting Defendants such other, further and different relief as the Court deems just and proper. 3 of 5 FILED: JEFFERSON COUNTY CLERK 03/24/2022 03:58 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 03/24/2022 Dated: March 24, 2022 Syracuse, New York MELVIN & MELVIN, PLLC By: W. radley, . Attorney for Defendants Eric and Gretchen Bevard Office and P.O. Address 7th 217 S. Salina St., Syracuse, New York 13202 Tel: (315) 422-1311 rbradley@melvinlaw.com 4 of 5 FILED: JEFFERSON COUNTY CLERK 03/24/2022 03:58 PM INDEX NO. EF2018-00001369 NYSCEF DOC. NO. 172 RECEIVED NYSCEF: 03/24/2022 CERTIFICATION OF WORD COUNT PURSUANT TO RULE 202.8-B(C) I,Roger W. Bradley, Esq., attorney for Defendant Eric and Gretchen Bevard herein, certify that this Affirmation has a total word count, excluding the case caption and signature block, of 710. I further certify to this Court that this Attorney Affirmation's word count is in compliance with the word count limit of 7,000 as set forth in Rule 202.8-b(a)(i). Roge . Brad y 5 of 5