Preview
FILED: ESSEX COUNTY CLERK 04/28/2023 04:14 PM INDEX NO. CV20-0447
NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 04/28/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ESSEX
----------------------------------------------------------------------
MATT LAVALLEE, Index No. CV20-0447
RJI No. 15-1-2020-0185E
Plaintiff,
Attorney Affirmation In
-against- Support of Motion to
Strike Demand for Jury
TRISHA SHEEHAN, and MARCIA M. ERWIN, Trial
as Ancillary Executrix of the goods, chattels and
credits of Maynard Francis Erwin, a/k/a
M. Frank Erwin, deceased,
Defendants.
----------------------------------------------------------------------
STATE OF NEW YORK)
) SS.:
COUNTY OF ESSEX )
Matthew D. Norfolk, Esq., affirms under penalty of perjury as follows:
1. I am an attorney duly licensed to practice law in the Courts of the State of New
York. I am a member of the law firm of Norfolk Beier PLLC, attorneys for Defendant Trisha
Sheehan in the above-captioned matter (hereinafter referred to as “Defendant Sheehan”). I am
fully familiar with all the facts and proceedings had in this action and set forth in this affirmation.
2. I submit this affirmation in support of Defendant Sheehan’s motion requesting the
Court to strike Plaintiff’s demand for a jury trial and order a nonjury trial for Plaintiff’s causes of
action, which seek declaratory relief, Defendant Maria Erwin’s counterclaim and cross-claim and
Defendant Sheehan’s counterclaims, all of which are based on principles of equity.
3. Plaintiff commenced this action with the filing of the Summons and Complaint,
both dated November 6, 2020. Defendant Sheehan moved to dismiss the Complaint for Plaintiff’s
failure to join the estate of Maynard Francis Erwin (hereinafter referred to as the “Erwin Estate”),
as a necessary party to the action. The Court agreed with Defendant Sheehan and ordered Plaintiff
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to join the Erwin Estate. (See NYSCEF Doc.14.) Plaintiff named the Erwin Estate as a defendant
with the filing of the Amended Complaint (NYSCEF Docs. 22 and 23) on September 14, 2021.
A true and accurate copy of the Amended Complaint is attached hereto as Exhibit A. Service was
subsequently made upon the Erwin Estate and it appeared. A true and accurate copy of the Erwin
Estate’s Answer (NYSCEF Doc. 27) is attached hereto as Exhibit B. The Erwin Estate seeks a
judgment in equity declaring the appointment of an escrow agent, trustee, or receiver and ordering
it to convey the real property at issue to the court-appointed escrow agent, trustee, or receiver once
the estate has been paid in full. Defendant Sheehan timely responded to the Amended Complaint
with her Verified Answer to the Amended Complaint with Counterclaims (hereinafter referred to
as the “Verified Answer”) (NYSCEF Doc. 25) on October 4, 2021. A true and accurate copy of
the Verified Answer is attached hereto as Exhibit C.
4. In the Amended Complaint, Plaintiff asserts three causes of action, although two of
the causes of action should be viewed as one, as discussed below. All of Plaintiff’s causes of
action seek declaratory judgment, as follows: (1) “declaring that the fake, bogus and pretended
contract dated June 1, 2018 and marked herein as Exhibit C be declared void and of no force and
effect,” (2) “declaring that only plaintiff Matt LaVallee was and remains and still is the only lawful
contract vendee of the land contract dated June 8, 2015 marked herein exhibit (sic) A,” and (3)
“declaring that all payments made by defendant Trisha Sheehan be deemed voluntary and applied
towards the balance on the contract of June 8, 2015 to the credit of plaintiff.” Plaintiff does not
assert a cause of action for monetary relief.
5. Plaintiff also seeks sanctions pursuant to 22 NYCRR §130 in the form of attorneys’
fees, expenses and disbursed. However, Part 130 and the provisions therein do not create a cause
of action. Section 130-1.1(d) states:
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An award of costs or the imposition of sanctions may be made either upon
motion in compliance with CPLR 2214 or 2215 or upon the court’s own
initiative, after a reasonable opportunity to be heard. The form of the hearing
shall depend upon the nature of the conduct and the circumstances of the case.
[Emphasis added.]
As stated in plain language above, sanctions may only be awarded upon a motion or by the Court
upon its own initiative. Accordingly, New York Courts do not recognize a separate cause of action
to impose sanctions in civil litigation. See, e.g., Schwartz v Sayah, 72 AD3d 790 (2d Dept. 2010);
Greco v Christoffersen, 70 AD3d 769, 771 (2d Dept. 2010); Katz v Katz, 31 Misc3d 1202(A) (Sup.
Ct. Kings Co. 2011); Ocean Side Institutional Indus., Inc. v Superior Laundry, 15 Misc3d 1123(A)
(Sup. Ct. Nassau Co. 2007); Aurora Loan Servs., LLC v Cambridge Home Capital, LLC, 12
Misc3d 1152(A) (Sup. Ct. Nassau Co. 2006).
6. In the Verified Answer, Defendant Sheehan asserts one counterclaim seeking
judgment declaring she is a party to the 2018 land contract at issue and that it is enforceable in
equity, one counterclaim for unjust enrichment, one counterclaim declaring she has an equity lien
against the real property at issue and one counterclaim for a constructive trust of the subject real
property at issue. All counterclaims asserted by Defendant Sheehan are equity claims.
7. CPLR §4101, titled “Issues triable by a jury revealed before trial,” states:
In the following actions, the issues of fact shall be tried by a jury unless
a jury trial is waived or a reference is directed under section 4317, except that
equitable defenses and equitable counterclaims shall be tried by the court:
1. an action in which a party demands and sets forth facts which
would permit a judgment for a sum of money only;
2. an action of ejectment; for dower; for waste; for abatement of
and damages for a nuisance; to recover a chattel; or for determination of a
claim to real property under article fifteen of the real property actions and
proceedings law; and
3. any other action in which a party is entitled by the
constitution or by express provision of law to a trial by jury.
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[Emphasis added.]
8. With respect to subsection 1, Plaintiff does not seek a judgment for a sum of money.
Defendant Sheehan, on the other hand, does have an unjust enrichment claim seeking a money
judgment as alternative relief if the Court declines to declare her to be a party to the land contract
at issue. However, the unjust enrichment counterclaim, like her other three counterclaims, is an
equitable counterclaim that is excepted from jury trial claims and must be tried by the Court
pursuant to CPLR §4101. This is so even if the Court found that Plaintiff’s causes of action are
to be tried by a jury.
9. Turning to subsection 2, there are no causes of action here of ejectment; for dower;
for waste; for abatement of and damages for a nuisance; or to recover a chattel; or for determination
of a claim to real property under article fifteen of the real property actions and proceedings law.
With respect to Plaintiff’s two causes of action seeking a declaration of the validity of the 2015
land contract and the 2018 land contract, they are in reality a combined single cause of action or
request for equity relief; to wit, requesting the Court declare the 2018 land contract void and, thus,
the 2015 land contract is unaffected by the (allegedly) defective 2018 contract. While the contracts
involve of real property and technically are seeking declaratory judgment, are in effect for recission
of a contract. Accordingly, they should not be considered causes of action of the type to be brought
under RPAPL Article 15 to determine interests in real property.
10. Finally, with respect to subsection 3, there are no causes of action for which the
Constitution or other express law entitles any party to a trial by jury, including RPAPL Article 15
for the reasons stated above.
11. It is acknowledged that a declaratory judgment action can be legal or equitable in
nature. “‘To determine whether a party is entitled to a jury trial, it is necessary to examine which
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of the traditional action would most likely have been used to present the claim had the declaratory
judgment action not been created.’” Anesthesia Assoc. of Mount Kisco LLP v N. Westchester Hosp,
Ctr., 59 AD3d 481, 482-83 (2d Dept. 2009) quoting State Farm Mut. Auto. Ins. Co. v Sparacio,
25 AD3d 777, 778-779 (2d Dept. 2006) quoting Independent Church of Realization of Word of
God v Board of Assessors of Nassau County, 72 AD2d 554, 555 (2d Dept. 1979). The traditional
action most likely to have been used to present Plaintiff’s instant claim(s) to declare the 2018
contract null and void, had the declaratory judgment action not been created, would have been a
claim for rescission.” See Anesthesia Assoc., supra; Independent Church, supra. “‘Rescission is
an equitable remedy through which one party seeks to disaffirm a written instrument and return to
the status that existed before the transaction was executed. The effect of rescission is
to declare a contract void from its inception and put or restore the parties to the status quo.’ (60A
N.Y. Jur. 2d Fraud and Deceit §221). Rescission is not available when there is an adequate remedy
available at law. Ellington v Sony/ATV Music Publ. LLC; 85 AD3d 438, 439, 925 N.Y.S.2d 20
(1st Dept 2011).’” MWW Group Holding Co., LLC v Marcum LLP, 2018 NY Slip Op 31921[U],
*17 (Sup. Ct. NY Co. 2018). Since an action for rescission sounds in equity, Plaintiff’s cause(s)
of action for declaratory relief to declare the 2018 contact null and void is/are equitable in nature.
See id.; see also Anesthesia Assoc., supra. Moreover, monetary damages would not provide the
relief sought by Plaintiff in his cause of action, nor for Defendant Sheehan’s declaratory judgement
cause of action for that matter. Id. (This is the very reason neither party seeks monetary damages
in connection with their respective declaratory judgment causes of action.) Based upon the
foregoing, Plaintiff is not entitled to a trial by jury.
Even if Plaintiff’s cause(s) of action seeking to declare the 2018 contract null and void may
be tried by a jury, Plaintiff is not entitled to a jury trial as he waived his right to a jury with the
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inclusion of a cause of action in equity seeking to have the monies Defendant Sheehan invested
into the real property and the construction of a luxurious home, the sum of which is over
$500,000.00, deemed to be a gift for the benefit of Plaintiff. It has been the practice to deny a
right to a jury trial to a plaintiff who pleads together equitable and legal remedies. See People v
Sys. Props., Inc., 293 NY 440 (1944) (the plaintiff joined legal and equitable causes and demanded
a jury, the denial of which was affirmed). One cannot reasonably argue that Plaintiff’s claim that
Defendant Sheehan as a matter of equity should not reap the benefits of her $500,000.00-plus
investment is incidental to Plaintiff’s request to have the 2018 contract rescinded. At the very
least, the causes of action are on par with each other.
Additionally, even if the Court finds that Plaintiff’s causes of action are to be tried by a
jury, as a matter of statutory law, Defendant Sheehan’s counterclaims, being in equity, must be
tried by the Court. “Under the plain terms of CPLR 4101, when a legal claim is met with an
equitable defense or counterclaim, ‘the issues of fact shall be tried by a jury … except that equitable
defenses and equitable counterclaims shall be tried by the court’ (see also, NY Const, art I, §2).).”
Mercantile & Gen. Reins. Co., plc. v Colonial Assur. Co., 82 NY2d 248, 252-53 (1993). Either a
separate bench trial should be had to determine Defendant Sheehan’s counterclaims or a
consolidated trial be had, but the Court would, of course, decide the counterclaims – not a jury.
Separate trials are preferable so as to not confuse the jury nor waste their time when much of the
case will be centered around claims in equity.
WHEREFORE, it is respectfully requested that the Court issue an order striking Plaintiff’s
demand for a jury trial and directing all of the parties’ claims in this action be tried by the Court
or, in the alternative, directing Defendant Sheehan’s counterclaims to be tried by the Court at a
separate trial, and granting Defendant Sheehan such other and further relief as the Court may deem
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just and fair.
Dated: Lake Placid, New York
April 28, 2023
Norfolk Beier PLLC
By:_______________________________
Matthew D. Norfolk, Esq.
1936 Saranac Avenue, Suite 106
Lake Placid, New York 12946
518.302.8080
mnorfolk@norfolkbeier.com
Attorneys for Defendant Trisha Sheehan
To: James M. Brooks, Esq.
72 Olympic Drive
Lake Placid, New York 12946
518.523.1555
jamesmbrooks@jmbrooks.net
Attorney for Plaintiff
Joseph M. Walsh, Esq.
Walsh & Walsh, LLP
42 Long Alley
Saratoga Springs, New York 12866
518.583.0171
wwllp@spalaw2.com
Attorney for Defendant Marcia M. Erwin
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MOTION CERTIFICATION
PRINTING SPECIFICATIONS STATEMENT
FOR AFFIDAVITS, AFFIMATIONS, BRIEFS AND
MEMORANDA OF LAW
Pursuant to the Uniform Practice Rules for New York State Trial Courts (22
NYCRR §202.8-b, the foregoing affidavit, affirmation, brief and/or memorandum
of law was prepared using a computer. A proportionally spaced, serif typeface was
used, as follows:
Typeface: Times New Roman
Point size: 12
Line spacing (excluding headings and footnotes): Double
The total number of words in the attached document is 1998, exclusive of the
caption, table of contents, table of authorities and signature block, is less than 7,000
words and the undersigned certifies this document is in compliance with the word
count limit.
Dated: April 28, 2023
Lake Placid, New York
______________________________
Matthew D. Norfolk, Esq.
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Preview
FILED: ESSEX COUNTY CLERK 04/28/2023 04:14 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 04/28/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ESSEX ---------------------------------------------------------------------- MATT LAVALLEE, Index No. CV20-0447 RJI No. 15-1-2020-0185E Plaintiff, Attorney Affirmation In -against- Support of Motion to Strike Demand for Jury TRISHA SHEEHAN, and MARCIA M. ERWIN, Trial as Ancillary Executrix of the goods, chattels and credits of Maynard Francis Erwin, a/k/a M. Frank Erwin, deceased, Defendants. ---------------------------------------------------------------------- STATE OF NEW YORK) ) SS.: COUNTY OF ESSEX ) Matthew D. Norfolk, Esq., affirms under penalty of perjury as follows: 1. I am an attorney duly licensed to practice law in the Courts of the State of New York. I am a member of the law firm of Norfolk Beier PLLC, attorneys for Defendant Trisha Sheehan in the above-captioned matter (hereinafter referred to as “Defendant Sheehan”). I am fully familiar with all the facts and proceedings had in this action and set forth in this affirmation. 2. I submit this affirmation in support of Defendant Sheehan’s motion requesting the Court to strike Plaintiff’s demand for a jury trial and order a nonjury trial for Plaintiff’s causes of action, which seek declaratory relief, Defendant Maria Erwin’s counterclaim and cross-claim and Defendant Sheehan’s counterclaims, all of which are based on principles of equity. 3. Plaintiff commenced this action with the filing of the Summons and Complaint, both dated November 6, 2020. Defendant Sheehan moved to dismiss the Complaint for Plaintiff’s failure to join the estate of Maynard Francis Erwin (hereinafter referred to as the “Erwin Estate”), as a necessary party to the action. The Court agreed with Defendant Sheehan and ordered Plaintiff 1 of 8 FILED: ESSEX COUNTY CLERK 04/28/2023 04:14 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 04/28/2023 to join the Erwin Estate. (See NYSCEF Doc.14.) Plaintiff named the Erwin Estate as a defendant with the filing of the Amended Complaint (NYSCEF Docs. 22 and 23) on September 14, 2021. A true and accurate copy of the Amended Complaint is attached hereto as Exhibit A. Service was subsequently made upon the Erwin Estate and it appeared. A true and accurate copy of the Erwin Estate’s Answer (NYSCEF Doc. 27) is attached hereto as Exhibit B. The Erwin Estate seeks a judgment in equity declaring the appointment of an escrow agent, trustee, or receiver and ordering it to convey the real property at issue to the court-appointed escrow agent, trustee, or receiver once the estate has been paid in full. Defendant Sheehan timely responded to the Amended Complaint with her Verified Answer to the Amended Complaint with Counterclaims (hereinafter referred to as the “Verified Answer”) (NYSCEF Doc. 25) on October 4, 2021. A true and accurate copy of the Verified Answer is attached hereto as Exhibit C. 4. In the Amended Complaint, Plaintiff asserts three causes of action, although two of the causes of action should be viewed as one, as discussed below. All of Plaintiff’s causes of action seek declaratory judgment, as follows: (1) “declaring that the fake, bogus and pretended contract dated June 1, 2018 and marked herein as Exhibit C be declared void and of no force and effect,” (2) “declaring that only plaintiff Matt LaVallee was and remains and still is the only lawful contract vendee of the land contract dated June 8, 2015 marked herein exhibit (sic) A,” and (3) “declaring that all payments made by defendant Trisha Sheehan be deemed voluntary and applied towards the balance on the contract of June 8, 2015 to the credit of plaintiff.” Plaintiff does not assert a cause of action for monetary relief. 5. Plaintiff also seeks sanctions pursuant to 22 NYCRR §130 in the form of attorneys’ fees, expenses and disbursed. However, Part 130 and the provisions therein do not create a cause of action. Section 130-1.1(d) states: 2 2 of 8 FILED: ESSEX COUNTY CLERK 04/28/2023 04:14 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 04/28/2023 An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court’s own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case. [Emphasis added.] As stated in plain language above, sanctions may only be awarded upon a motion or by the Court upon its own initiative. Accordingly, New York Courts do not recognize a separate cause of action to impose sanctions in civil litigation. See, e.g., Schwartz v Sayah, 72 AD3d 790 (2d Dept. 2010); Greco v Christoffersen, 70 AD3d 769, 771 (2d Dept. 2010); Katz v Katz, 31 Misc3d 1202(A) (Sup. Ct. Kings Co. 2011); Ocean Side Institutional Indus., Inc. v Superior Laundry, 15 Misc3d 1123(A) (Sup. Ct. Nassau Co. 2007); Aurora Loan Servs., LLC v Cambridge Home Capital, LLC, 12 Misc3d 1152(A) (Sup. Ct. Nassau Co. 2006). 6. In the Verified Answer, Defendant Sheehan asserts one counterclaim seeking judgment declaring she is a party to the 2018 land contract at issue and that it is enforceable in equity, one counterclaim for unjust enrichment, one counterclaim declaring she has an equity lien against the real property at issue and one counterclaim for a constructive trust of the subject real property at issue. All counterclaims asserted by Defendant Sheehan are equity claims. 7. CPLR §4101, titled “Issues triable by a jury revealed before trial,” states: In the following actions, the issues of fact shall be tried by a jury unless a jury trial is waived or a reference is directed under section 4317, except that equitable defenses and equitable counterclaims shall be tried by the court: 1. an action in which a party demands and sets forth facts which would permit a judgment for a sum of money only; 2. an action of ejectment; for dower; for waste; for abatement of and damages for a nuisance; to recover a chattel; or for determination of a claim to real property under article fifteen of the real property actions and proceedings law; and 3. any other action in which a party is entitled by the constitution or by express provision of law to a trial by jury. 3 3 of 8 FILED: ESSEX COUNTY CLERK 04/28/2023 04:14 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 04/28/2023 [Emphasis added.] 8. With respect to subsection 1, Plaintiff does not seek a judgment for a sum of money. Defendant Sheehan, on the other hand, does have an unjust enrichment claim seeking a money judgment as alternative relief if the Court declines to declare her to be a party to the land contract at issue. However, the unjust enrichment counterclaim, like her other three counterclaims, is an equitable counterclaim that is excepted from jury trial claims and must be tried by the Court pursuant to CPLR §4101. This is so even if the Court found that Plaintiff’s causes of action are to be tried by a jury. 9. Turning to subsection 2, there are no causes of action here of ejectment; for dower; for waste; for abatement of and damages for a nuisance; or to recover a chattel; or for determination of a claim to real property under article fifteen of the real property actions and proceedings law. With respect to Plaintiff’s two causes of action seeking a declaration of the validity of the 2015 land contract and the 2018 land contract, they are in reality a combined single cause of action or request for equity relief; to wit, requesting the Court declare the 2018 land contract void and, thus, the 2015 land contract is unaffected by the (allegedly) defective 2018 contract. While the contracts involve of real property and technically are seeking declaratory judgment, are in effect for recission of a contract. Accordingly, they should not be considered causes of action of the type to be brought under RPAPL Article 15 to determine interests in real property. 10. Finally, with respect to subsection 3, there are no causes of action for which the Constitution or other express law entitles any party to a trial by jury, including RPAPL Article 15 for the reasons stated above. 11. It is acknowledged that a declaratory judgment action can be legal or equitable in nature. “‘To determine whether a party is entitled to a jury trial, it is necessary to examine which 4 4 of 8 FILED: ESSEX COUNTY CLERK 04/28/2023 04:14 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 04/28/2023 of the traditional action would most likely have been used to present the claim had the declaratory judgment action not been created.’” Anesthesia Assoc. of Mount Kisco LLP v N. Westchester Hosp, Ctr., 59 AD3d 481, 482-83 (2d Dept. 2009) quoting State Farm Mut. Auto. Ins. Co. v Sparacio, 25 AD3d 777, 778-779 (2d Dept. 2006) quoting Independent Church of Realization of Word of God v Board of Assessors of Nassau County, 72 AD2d 554, 555 (2d Dept. 1979). The traditional action most likely to have been used to present Plaintiff’s instant claim(s) to declare the 2018 contract null and void, had the declaratory judgment action not been created, would have been a claim for rescission.” See Anesthesia Assoc., supra; Independent Church, supra. “‘Rescission is an equitable remedy through which one party seeks to disaffirm a written instrument and return to the status that existed before the transaction was executed. The effect of rescission is to declare a contract void from its inception and put or restore the parties to the status quo.’ (60A N.Y. Jur. 2d Fraud and Deceit §221). Rescission is not available when there is an adequate remedy available at law. Ellington v Sony/ATV Music Publ. LLC; 85 AD3d 438, 439, 925 N.Y.S.2d 20 (1st Dept 2011).’” MWW Group Holding Co., LLC v Marcum LLP, 2018 NY Slip Op 31921[U], *17 (Sup. Ct. NY Co. 2018). Since an action for rescission sounds in equity, Plaintiff’s cause(s) of action for declaratory relief to declare the 2018 contact null and void is/are equitable in nature. See id.; see also Anesthesia Assoc., supra. Moreover, monetary damages would not provide the relief sought by Plaintiff in his cause of action, nor for Defendant Sheehan’s declaratory judgement cause of action for that matter. Id. (This is the very reason neither party seeks monetary damages in connection with their respective declaratory judgment causes of action.) Based upon the foregoing, Plaintiff is not entitled to a trial by jury. Even if Plaintiff’s cause(s) of action seeking to declare the 2018 contract null and void may be tried by a jury, Plaintiff is not entitled to a jury trial as he waived his right to a jury with the 5 5 of 8 FILED: ESSEX COUNTY CLERK 04/28/2023 04:14 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 04/28/2023 inclusion of a cause of action in equity seeking to have the monies Defendant Sheehan invested into the real property and the construction of a luxurious home, the sum of which is over $500,000.00, deemed to be a gift for the benefit of Plaintiff. It has been the practice to deny a right to a jury trial to a plaintiff who pleads together equitable and legal remedies. See People v Sys. Props., Inc., 293 NY 440 (1944) (the plaintiff joined legal and equitable causes and demanded a jury, the denial of which was affirmed). One cannot reasonably argue that Plaintiff’s claim that Defendant Sheehan as a matter of equity should not reap the benefits of her $500,000.00-plus investment is incidental to Plaintiff’s request to have the 2018 contract rescinded. At the very least, the causes of action are on par with each other. Additionally, even if the Court finds that Plaintiff’s causes of action are to be tried by a jury, as a matter of statutory law, Defendant Sheehan’s counterclaims, being in equity, must be tried by the Court. “Under the plain terms of CPLR 4101, when a legal claim is met with an equitable defense or counterclaim, ‘the issues of fact shall be tried by a jury … except that equitable defenses and equitable counterclaims shall be tried by the court’ (see also, NY Const, art I, §2).).” Mercantile & Gen. Reins. Co., plc. v Colonial Assur. Co., 82 NY2d 248, 252-53 (1993). Either a separate bench trial should be had to determine Defendant Sheehan’s counterclaims or a consolidated trial be had, but the Court would, of course, decide the counterclaims – not a jury. Separate trials are preferable so as to not confuse the jury nor waste their time when much of the case will be centered around claims in equity. WHEREFORE, it is respectfully requested that the Court issue an order striking Plaintiff’s demand for a jury trial and directing all of the parties’ claims in this action be tried by the Court or, in the alternative, directing Defendant Sheehan’s counterclaims to be tried by the Court at a separate trial, and granting Defendant Sheehan such other and further relief as the Court may deem 6 6 of 8 FILED: ESSEX COUNTY CLERK 04/28/2023 04:14 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 04/28/2023 just and fair. Dated: Lake Placid, New York April 28, 2023 Norfolk Beier PLLC By:_______________________________ Matthew D. Norfolk, Esq. 1936 Saranac Avenue, Suite 106 Lake Placid, New York 12946 518.302.8080 mnorfolk@norfolkbeier.com Attorneys for Defendant Trisha Sheehan To: James M. Brooks, Esq. 72 Olympic Drive Lake Placid, New York 12946 518.523.1555 jamesmbrooks@jmbrooks.net Attorney for Plaintiff Joseph M. Walsh, Esq. Walsh & Walsh, LLP 42 Long Alley Saratoga Springs, New York 12866 518.583.0171 wwllp@spalaw2.com Attorney for Defendant Marcia M. Erwin 7 7 of 8 FILED: ESSEX COUNTY CLERK 04/28/2023 04:14 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 90 RECEIVED NYSCEF: 04/28/2023 MOTION CERTIFICATION PRINTING SPECIFICATIONS STATEMENT FOR AFFIDAVITS, AFFIMATIONS, BRIEFS AND MEMORANDA OF LAW Pursuant to the Uniform Practice Rules for New York State Trial Courts (22 NYCRR §202.8-b, the foregoing affidavit, affirmation, brief and/or memorandum of law was prepared using a computer. A proportionally spaced, serif typeface was used, as follows: Typeface: Times New Roman Point size: 12 Line spacing (excluding headings and footnotes): Double The total number of words in the attached document is 1998, exclusive of the caption, table of contents, table of authorities and signature block, is less than 7,000 words and the undersigned certifies this document is in compliance with the word count limit. Dated: April 28, 2023 Lake Placid, New York ______________________________ Matthew D. Norfolk, Esq. 8 8 of 8