On April 27, 2021 a
Motion-Secondary
was filed
involving a dispute between
Christopher Smith,
Michael Smith As Trustees,
Of The Jay And Patricia Smith Irrevocable Trust,
and
Estate Of Theodore P Smith
By Executor,
Smith Jane Anna
As Executor,
Smith J Anna
As Trustee,
Theodore P. Smith Income Only Irrevocable Trust,
for Special Proceedings - Other (RPAPL Section 901 et al)
in the District Court of Herkimer County.
Preview
FILED: HERKIMER COUNTY CLERK 06/07/2021 03:50 PM INDEX NO. EF2021-108166
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 06/07/2021
STATE OF NEW YORK
SUPREME COURT COUNTY OF HERKIMER
X
CHRISTOPHER SMITH AND MICHAEL SMITH AS
TRUSTEES OF THE JAY AND PATRICIA SMITH
IRREVOCABLE TRUST, AFFIDAVIT
Plaintiffs, Index No. 2021-108166
v.
THEODORE P. SMITH INCOME ONLY
IRREVOCABLE TRUST,
Defendant.
X
STATE OF NEW YORK )
: ss.:
COUNTY OF HERKIMER )
ANNA J. SMITH, being duly sworn, states as follows:
1. I am the Trustee of the Theodore P. Smith Income Only Irrevocable Trust dated May 21,
2020 ("The Trust").
2. I reside at 780 Summit Rd., Newport, NY 13416.
3. The Ace of Diamonds Mine & Campground, LLC (hereinafter "The Business") is a single
member LLC, with the sole member being myself as trustee for The Trust. Prior to the
formation of the LLC, my father Theodore P. Smith operated the Business as a sole
proprietorship.
4. I am the bookkeeper for the Business, and as such, can attest to the fact that the issuance
of the TRO has had a catastrophic financial impact on the Business.
5. Despite the campground remaining open, many customers have canceled their camping
reservations due to the inability to mine. Since the issuance of the TRO, the Business has
refunded $1,778.00 in camping reservations. This volume of refunds in a 27 day time
period is unprecedented for the Business.
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FILED: HERKIMER COUNTY CLERK 06/07/2021 03:50 PM INDEX NO. EF2021-108166
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 06/07/2021
6. Although tourist mining represents only a portion of the revenue generated on the premises,
the camping and gift shop revenue is directly and closely intertwined. To illustrate, below
is a comparison of the Business' gross revenue from May 111i' through June 6th (the
timeframe that the TRO has been in effect) for 2021, 2019, and 2018:
MAY 11th - JUNE 6th
2018: Revenue from tourist mining admission ticket sales: $15,945.50
Other Revenue (Camping, gift shop sales, etc.): $24,325.62
Refunds: -$25.00
Total Gross Revenue (including collected sales tax): $40,246.12
2019: Revenue from tourist mining admission ticket sales: $18,590.07
Other Revenue (Camping, gift shop sales, etc.): $26,089.49
Refunds: -$10.00
Total Gross Revenue: (including collected sales tax): $44,669.56
2020: Data for 2020 has been excluded from the comparison because it is not a
representative indicator of typical revenue due to the COVID-19 shutdown that was in
effect during this timeframe.
2021: Revenue from tourist mining admission ticket sales: $0.00
Other Revenue (Camping, gift shop sales, etc.): $4,903.05
Refunds: -$1,778.00
Total Gross Revenue (including collected sales tax): $3,125.05
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FILED: HERKIMER COUNTY CLERK 06/07/2021 03:50 PM INDEX NO. EF2021-108166
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 06/07/2021
7. The peak of our season comes during the summer months when young children are not in
school. The financial losses of the Business will only be compounded as we approach what
should have been our busiest time of the year.
8. As a result of this drastic reduction in revenue, the Business is currently operating at a loss.
If the TRO continues to be extended or if a preliminary injunction is issued, the Business
will have no choice but to completely close down the gift shop and campground as it is not
feasible to continue operating at a loss for any extended period of time.
9. To avoid the shutdown of this enterprise, the Court could modify the TRO to allow for
baseline historical mining amounts and the use of tailings for customers, and Defendant is
agreeable to appropriately marking newly mined 2021 Herkimer Diamonds for sale with
an easily identifiable marking pending the final determination of this proceeding. Any
sales would be appropriately recorded and traceable.
10. Moreover, the expansiveness of the TRO is preventing the sale of minerals in the gift shop
that were acquired outside of the Property and should be modified to allow for those sales.
Conclusion
11. Accordingly, I respectfully request that this Court vacate the TRO and allow the action to
proceed in accordance with RPAPL §993. In the alternative, I would request that this
Court modify the TRO as noted above.
Anna . Smith
Sworn to before me this 7th day of
June, 2021.
°tux
Notary Public in th • State of New Yo
Appointed in Herkimer County
Reg. No. 01MA6145985
Aug. 18, 3
My Commission Expires
3 of 3
Document Filed Date
June 07, 2021
Case Filing Date
April 27, 2021
Category
Special Proceedings - Other (RPAPL Section 901 et al)
Status
Disposed-Court Date/Application Pending
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FILED: HERKIMER COUNTY CLERK 06/07/2021 03:50 PM INDEX NO. EF2021-108166 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 06/07/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF HERKIMER X CHRISTOPHER SMITH AND MICHAEL SMITH AS TRUSTEES OF THE JAY AND PATRICIA SMITH IRREVOCABLE TRUST, AFFIDAVIT Plaintiffs, Index No. 2021-108166 v. THEODORE P. SMITH INCOME ONLY IRREVOCABLE TRUST, Defendant. X STATE OF NEW YORK ) : ss.: COUNTY OF HERKIMER ) ANNA J. SMITH, being duly sworn, states as follows: 1. I am the Trustee of the Theodore P. Smith Income Only Irrevocable Trust dated May 21, 2020 ("The Trust"). 2. I reside at 780 Summit Rd., Newport, NY 13416. 3. The Ace of Diamonds Mine & Campground, LLC (hereinafter "The Business") is a single member LLC, with the sole member being myself as trustee for The Trust. Prior to the formation of the LLC, my father Theodore P. Smith operated the Business as a sole proprietorship. 4. I am the bookkeeper for the Business, and as such, can attest to the fact that the issuance of the TRO has had a catastrophic financial impact on the Business. 5. Despite the campground remaining open, many customers have canceled their camping reservations due to the inability to mine. Since the issuance of the TRO, the Business has refunded $1,778.00 in camping reservations. This volume of refunds in a 27 day time period is unprecedented for the Business. 1 1 of 3 FILED: HERKIMER COUNTY CLERK 06/07/2021 03:50 PM INDEX NO. EF2021-108166 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 06/07/2021 6. Although tourist mining represents only a portion of the revenue generated on the premises, the camping and gift shop revenue is directly and closely intertwined. To illustrate, below is a comparison of the Business' gross revenue from May 111i' through June 6th (the timeframe that the TRO has been in effect) for 2021, 2019, and 2018: MAY 11th - JUNE 6th 2018: Revenue from tourist mining admission ticket sales: $15,945.50 Other Revenue (Camping, gift shop sales, etc.): $24,325.62 Refunds: -$25.00 Total Gross Revenue (including collected sales tax): $40,246.12 2019: Revenue from tourist mining admission ticket sales: $18,590.07 Other Revenue (Camping, gift shop sales, etc.): $26,089.49 Refunds: -$10.00 Total Gross Revenue: (including collected sales tax): $44,669.56 2020: Data for 2020 has been excluded from the comparison because it is not a representative indicator of typical revenue due to the COVID-19 shutdown that was in effect during this timeframe. 2021: Revenue from tourist mining admission ticket sales: $0.00 Other Revenue (Camping, gift shop sales, etc.): $4,903.05 Refunds: -$1,778.00 Total Gross Revenue (including collected sales tax): $3,125.05 2 2 of 3 FILED: HERKIMER COUNTY CLERK 06/07/2021 03:50 PM INDEX NO. EF2021-108166 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 06/07/2021 7. The peak of our season comes during the summer months when young children are not in school. The financial losses of the Business will only be compounded as we approach what should have been our busiest time of the year. 8. As a result of this drastic reduction in revenue, the Business is currently operating at a loss. If the TRO continues to be extended or if a preliminary injunction is issued, the Business will have no choice but to completely close down the gift shop and campground as it is not feasible to continue operating at a loss for any extended period of time. 9. To avoid the shutdown of this enterprise, the Court could modify the TRO to allow for baseline historical mining amounts and the use of tailings for customers, and Defendant is agreeable to appropriately marking newly mined 2021 Herkimer Diamonds for sale with an easily identifiable marking pending the final determination of this proceeding. Any sales would be appropriately recorded and traceable. 10. Moreover, the expansiveness of the TRO is preventing the sale of minerals in the gift shop that were acquired outside of the Property and should be modified to allow for those sales. Conclusion 11. Accordingly, I respectfully request that this Court vacate the TRO and allow the action to proceed in accordance with RPAPL §993. In the alternative, I would request that this Court modify the TRO as noted above. Anna . Smith Sworn to before me this 7th day of June, 2021. °tux Notary Public in th • State of New Yo Appointed in Herkimer County Reg. No. 01MA6145985 Aug. 18, 3 My Commission Expires 3 of 3