Preview
FILED: ESSEX COUNTY CLERK 05/18/2023 03:16 PM INDEX NO. CV20-0447
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF ESSEX
__________________________________________
MATT LAVALLEE,
Plaintiff, AFFIDAVIT
IN OPPOSITION
-against-
Index No. CV20-0447
RJI No. 15-1-2020-0185E
TRISHA SHEEHAN, and MARCIA M. ERWIN,
as Ancilliary Executor 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 )
James M. Brooks, being duly sworn, deposes and states:
1. I am an attorney duly licensed to practice my profession in all the Courts of
the State of New York. I am the attorney for plaintiff Matt LaVallee in this action. I am fully
familiar with the facts herein stated based upon my review and consideration of the
affidavits and pleadings upon which this motion by defendant Trisha Sheehan is based,
and by my personal awareness of the principles applicable to the claims and defenses
raised by the pleadings and this motion. This affidavit is submitted in opposition to
LAW OFFICE OF - JAMES M. BROOKS - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946
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NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023
defendant Trisha Sheehan's motion to strike the jury trial demand filed by deponent on
behalf of plaintiff on March 15, 2023 (NYSCEF Doc. No. 86). The affirmation of defendant
Sheehan's counsel seeking the relief requested on the motion should be stricken as it is
essentially a memorandum of law, in violation of the provisions of 22 NYCRR 202.8( c),
that regulation requiring that affirmation be only statements of the claimed relevant facts,
not legal arguments and citations of legal precedents.
2. Plaintiff's amended complaint (NYSCEF Docs. Nos. 22, 23) seeks judicial
relief pursuant to Real Property Actions and Proceedings Law Article 15 (NYSCEF Doc.
No. 22 at section 18) based on his claim that plaintiff is the only lawful contract vendee of
the Lot 4 real property identified at Schedule A of the land contract dated June 8, 2015 and
marked exhibit A in the amended complaint. Plaintiff asserts that because of the wrongful
acts of defendant Sheehan in creating and thereafter asserting the alleged legality and her
entitlement to ownership rights to the Lot 4 real property by the fake contract marked
exhibit C attached to the plaintiff's amended complaint, plaintiff has been hindered from
completing his purchase pursuant to the June 8, 2015 contract, thereby securing his
rightful sole ownership and exclusive possession of that real property from defendant Erwin
(exhibits E and F to the amended complaint). Both defendants in and by their answers
(NYSCEF Docs. Nos. 25 and 27) dispute plaintiff's right to his sole ownership and
exclusive possession of Lot 4 in the Town of Chesterfield, Essex County, New York based
on the June 8, 2015 Land Contract by reason of her fake Land Contract dated June 1,
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NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023
2018 attached as exhibit C to the complaint. As determined by the judicial precedents
cited and discussed in the Memorandum of Law submitted simultaneously herewith, the
plaintiff is entitled to a jury trial of the many disputed issues. Defendant Sheehan's motion
should be denied (CPLR §4101(2)).
3. At paragraph 11 of the Amended Affirmation of defendant Sheehan's attorney
in support of this motion an argument is made regarding relevancy of the law of Rescission.
Plaintiff's complaint does not seek the remedy of rescission because the June 1, 2018 Land
Contract (exhibit C) is clearly bogus and fraudulent, as is evidenced by the content of exhibit
D attached to plaintiff's complaint.
4. All of defendant Sheehan's counterclaims against plaintiff are also
affirmatively claimed to be based and relied on RPAP Law Article 15 (NYSCEF Doc. No.
25 at paragraph 34). Her first counterclaim seeks a judgment from this Court awarding her
an ownership and possessory interest in the Lot 4 property based on the fake exhibit C
contract. Plaintiff is the only bona fide contract vendee. Her second counterclaim seeks
recovery of alleged money damages based on claims of implied contract in the nature of
unjust enrichment, while the third and fourth counterclaims seek recovery of alleged money
damages based on her entitlement to a lien or trust interest in the real property of Lot 4
pursuant to her first counterclaim. Even if this Court or a jury were to decide that defendant
Sheehan has a real property interest in Lot 4, which plaintiff disputes, the amount of any
money damages, if any, defendant Sheehan would be entitled to under her second, third
LAW OFFICE OF - JAMES M. BROOKS - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946
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FILED: ESSEX COUNTY CLERK 05/18/2023 03:16 PM INDEX NO. CV20-0447
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023
and fourth counterclaims are based on claims involving factual disputes and requiring jury
determinations. Plaintiff is entitled to a jury trial on those claims based on the denials and
defenses he has asserted against said counterclaims, including application of the voluntary
payment doctrine (NYSCEF Docs. Nos. 29 and 30) to defendanes claims.
5. The unrelated contentions asserted in paragraphs 5 of counsel's amended
affirmation (NYSCEF Doc. No. 95) regarding that portion of the prayer for relief requests by
plaintiff in his amended complaint that the Court in its determination of plaintiff's claims for
relief should grant plaintiff relief allowed by 22 NYCRR §130 should be stricken. That
request is not a separately pled cause of action as appears to be implied by the assertions
made in paragraph 5. The request for the Court to consider granting such relief placed
defendant on notice that in the light of the asserted wrongful acts of defendant regarding
her creation of the fake June 1, 2018 Land Contract document, placed defendant on notice
of her exposure to such potential relief by the Court as part of its discretionary jurisdiction.
6. For all the reasons above stated, defendant Sheehan's motion shall be denied
in all respects, the key relevant factor being whether the action when viewed in its entirety
is legal or equitable. In this case plaintiff's action is basically and essentially legal and
plaintiff's demand for a jury trial is proper. A jury determination of the numerous disputed
facts is warranted. Upon this Courfs denial of the motion, plaintiff should be awarded his
4
LAW OFFICE OF - JAMES M. BROOK5 - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946
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costs and disbursements.
James M. Brooks
18"'
Sworn to before me this day
of May, 2023.
Notary Public
KATHRYN A. MCKILUP
Notary Public, State Of New York
No. 4917580
Qualified In Essex
County
Comrnission Expires January 25,
5
LAW OFFICE OF - JAMES M. BROOKS - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946
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FILED: ESSEX COUNTY CLERK 05/18/2023 03:16 PM INDEX NO. CV20-0447
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF ESSEX
_________________________________________________________________
MATT LAVALLEE,
Plaintiff,
Certification of Word Count
-against-
Index No. CV20-0447
IUI No. 15-1-2020-0185E
TRISHA SHEEHAN, and MARCIA M. ERWIN,
as Ancilliary Executor of the goods, chattels
and credits of Maynard Francis Erwin , A/K/A
M. Frank Erwin, deceased,
Defendants.
_________________________________________________________________
In accordance with the Uniform Rules, 22 NYCRR §202.8-b, the undersigned
certifies that the word count in the Affidavit in Opposition of James M. Brooks, Esq.
dated May 18, 2023 is 981 as established using the word count on the word-processing
system used to prepare the Affidavit in Opposition.
Dated: May 18, 2023
Lake Placid, New York
LAW OFFICE OF JAMES M. BROOKS
By:
Jame . Brooks, Esq.
&tt iney for Plaintiff
Camp Bearberry LLC
72 Olympic Drive
Lake Placid, New York 12946
(518) 523-1555
LAW OFFICE OF - JAMES M. BROOKS - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946
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NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023
TO: NORFOLK BEIER PLLC
Attn: Matthew D. Norfolk, Esq.
Attorney for Defendant
Trisha Sheehan
1936 Saranac Avenue, #106
Lake Placid, NY 12946
(518)308-8080
Email: matthew@norfolk-law.com
WALSH & WALSH, LLP
Attn: Joseph M. Walsh, Esq.
Attorney for Ancilliary Executrix
Marcia M. Erwin
42 Long Alley
Saratoga Springs, NY 12866
Email: wwilp@spalaw2.com
2
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Preview
FILED: ESSEX COUNTY CLERK 05/18/2023 03:16 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF ESSEX __________________________________________ MATT LAVALLEE, Plaintiff, AFFIDAVIT IN OPPOSITION -against- Index No. CV20-0447 RJI No. 15-1-2020-0185E TRISHA SHEEHAN, and MARCIA M. ERWIN, as Ancilliary Executor 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 ) James M. Brooks, being duly sworn, deposes and states: 1. I am an attorney duly licensed to practice my profession in all the Courts of the State of New York. I am the attorney for plaintiff Matt LaVallee in this action. I am fully familiar with the facts herein stated based upon my review and consideration of the affidavits and pleadings upon which this motion by defendant Trisha Sheehan is based, and by my personal awareness of the principles applicable to the claims and defenses raised by the pleadings and this motion. This affidavit is submitted in opposition to LAW OFFICE OF - JAMES M. BROOKS - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946 1 of 7 FILED: ESSEX COUNTY CLERK 05/18/2023 03:16 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023 defendant Trisha Sheehan's motion to strike the jury trial demand filed by deponent on behalf of plaintiff on March 15, 2023 (NYSCEF Doc. No. 86). The affirmation of defendant Sheehan's counsel seeking the relief requested on the motion should be stricken as it is essentially a memorandum of law, in violation of the provisions of 22 NYCRR 202.8( c), that regulation requiring that affirmation be only statements of the claimed relevant facts, not legal arguments and citations of legal precedents. 2. Plaintiff's amended complaint (NYSCEF Docs. Nos. 22, 23) seeks judicial relief pursuant to Real Property Actions and Proceedings Law Article 15 (NYSCEF Doc. No. 22 at section 18) based on his claim that plaintiff is the only lawful contract vendee of the Lot 4 real property identified at Schedule A of the land contract dated June 8, 2015 and marked exhibit A in the amended complaint. Plaintiff asserts that because of the wrongful acts of defendant Sheehan in creating and thereafter asserting the alleged legality and her entitlement to ownership rights to the Lot 4 real property by the fake contract marked exhibit C attached to the plaintiff's amended complaint, plaintiff has been hindered from completing his purchase pursuant to the June 8, 2015 contract, thereby securing his rightful sole ownership and exclusive possession of that real property from defendant Erwin (exhibits E and F to the amended complaint). Both defendants in and by their answers (NYSCEF Docs. Nos. 25 and 27) dispute plaintiff's right to his sole ownership and exclusive possession of Lot 4 in the Town of Chesterfield, Essex County, New York based on the June 8, 2015 Land Contract by reason of her fake Land Contract dated June 1, 2 2 of 7 FILED: ESSEX COUNTY CLERK 05/18/2023 03:16 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023 2018 attached as exhibit C to the complaint. As determined by the judicial precedents cited and discussed in the Memorandum of Law submitted simultaneously herewith, the plaintiff is entitled to a jury trial of the many disputed issues. Defendant Sheehan's motion should be denied (CPLR §4101(2)). 3. At paragraph 11 of the Amended Affirmation of defendant Sheehan's attorney in support of this motion an argument is made regarding relevancy of the law of Rescission. Plaintiff's complaint does not seek the remedy of rescission because the June 1, 2018 Land Contract (exhibit C) is clearly bogus and fraudulent, as is evidenced by the content of exhibit D attached to plaintiff's complaint. 4. All of defendant Sheehan's counterclaims against plaintiff are also affirmatively claimed to be based and relied on RPAP Law Article 15 (NYSCEF Doc. No. 25 at paragraph 34). Her first counterclaim seeks a judgment from this Court awarding her an ownership and possessory interest in the Lot 4 property based on the fake exhibit C contract. Plaintiff is the only bona fide contract vendee. Her second counterclaim seeks recovery of alleged money damages based on claims of implied contract in the nature of unjust enrichment, while the third and fourth counterclaims seek recovery of alleged money damages based on her entitlement to a lien or trust interest in the real property of Lot 4 pursuant to her first counterclaim. Even if this Court or a jury were to decide that defendant Sheehan has a real property interest in Lot 4, which plaintiff disputes, the amount of any money damages, if any, defendant Sheehan would be entitled to under her second, third LAW OFFICE OF - JAMES M. BROOKS - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946 3 of 7 FILED: ESSEX COUNTY CLERK 05/18/2023 03:16 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023 and fourth counterclaims are based on claims involving factual disputes and requiring jury determinations. Plaintiff is entitled to a jury trial on those claims based on the denials and defenses he has asserted against said counterclaims, including application of the voluntary payment doctrine (NYSCEF Docs. Nos. 29 and 30) to defendanes claims. 5. The unrelated contentions asserted in paragraphs 5 of counsel's amended affirmation (NYSCEF Doc. No. 95) regarding that portion of the prayer for relief requests by plaintiff in his amended complaint that the Court in its determination of plaintiff's claims for relief should grant plaintiff relief allowed by 22 NYCRR §130 should be stricken. That request is not a separately pled cause of action as appears to be implied by the assertions made in paragraph 5. The request for the Court to consider granting such relief placed defendant on notice that in the light of the asserted wrongful acts of defendant regarding her creation of the fake June 1, 2018 Land Contract document, placed defendant on notice of her exposure to such potential relief by the Court as part of its discretionary jurisdiction. 6. For all the reasons above stated, defendant Sheehan's motion shall be denied in all respects, the key relevant factor being whether the action when viewed in its entirety is legal or equitable. In this case plaintiff's action is basically and essentially legal and plaintiff's demand for a jury trial is proper. A jury determination of the numerous disputed facts is warranted. Upon this Courfs denial of the motion, plaintiff should be awarded his 4 LAW OFFICE OF - JAMES M. BROOK5 - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946 4 of 7 FILED: ESSEX COUNTY CLERK 05/18/2023 03:16 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023 costs and disbursements. James M. Brooks 18"' Sworn to before me this day of May, 2023. Notary Public KATHRYN A. MCKILUP Notary Public, State Of New York No. 4917580 Qualified In Essex County Comrnission Expires January 25, 5 LAW OFFICE OF - JAMES M. BROOKS - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946 . 5 of 7 FILED: ESSEX COUNTY CLERK 05/18/2023 03:16 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF ESSEX _________________________________________________________________ MATT LAVALLEE, Plaintiff, Certification of Word Count -against- Index No. CV20-0447 IUI No. 15-1-2020-0185E TRISHA SHEEHAN, and MARCIA M. ERWIN, as Ancilliary Executor of the goods, chattels and credits of Maynard Francis Erwin , A/K/A M. Frank Erwin, deceased, Defendants. _________________________________________________________________ In accordance with the Uniform Rules, 22 NYCRR §202.8-b, the undersigned certifies that the word count in the Affidavit in Opposition of James M. Brooks, Esq. dated May 18, 2023 is 981 as established using the word count on the word-processing system used to prepare the Affidavit in Opposition. Dated: May 18, 2023 Lake Placid, New York LAW OFFICE OF JAMES M. BROOKS By: Jame . Brooks, Esq. &tt iney for Plaintiff Camp Bearberry LLC 72 Olympic Drive Lake Placid, New York 12946 (518) 523-1555 LAW OFFICE OF - JAMES M. BROOKS - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946 .. 6 of 7 FILED: ESSEX COUNTY CLERK 05/18/2023 03:16 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 05/18/2023 TO: NORFOLK BEIER PLLC Attn: Matthew D. Norfolk, Esq. Attorney for Defendant Trisha Sheehan 1936 Saranac Avenue, #106 Lake Placid, NY 12946 (518)308-8080 Email: matthew@norfolk-law.com WALSH & WALSH, LLP Attn: Joseph M. Walsh, Esq. Attorney for Ancilliary Executrix Marcia M. Erwin 42 Long Alley Saratoga Springs, NY 12866 Email: wwilp@spalaw2.com 2 LAW OFFICE OF - JAMES M. BROOKS - 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946 7 of 7