Preview
FILED: ESSEX COUNTY CLERK 05/25/2023 04:01 PM INDEX NO. CV20-0447
NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/25/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ESSEX
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MATT LAVALLEE,
Plaintiff, Index No.: CV20-0447
RJI No. 15-1-2020-0185E
against
TRISHA SHEEHAN, and MARCIA M. ERWIN,
as Ancillary Executrix of the goods, chattels and
credits of Maynard Francis Erwin, A/K/A
M. Frank Erwin, deceased,
Defendants.
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REPLY MEMORANDUM OF LAW IN SUPPORT OF
DEFENDANT TRISHA SHEEHAN’S MOTION TO
STRIKE DEMAND FOR JURY TRIAL
Matthew D. Norfolk, Esq.
Jena L. Boise, Esq.
Norfolk Beier, PLLC
1936 Saranac Avenue, Suite.106
Lake Placid, New York 12946
518.302-8080
mnorfolk@norfolkbeier.com
Attorney for Defendant Trisha Sheehan
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PRELIMINARY STATEMENT
This memorandum of law is submitted in reply to Plaintiff’s opposition to and in support
of Defendant Trisha Sheehan’s motion to strike Plaintiff’s demand for a jury trial.
LEGAL ARGUMENTS
A. Plaintiff’s Half-Hearted Challenges Fail to Overcome Defendant Sheehan’s
Argument that Her Counterclaims Must Be Decided by the Court.
Under “POINT ONE” of his memorandum of law Plaintiff only argues that he is entitled
to having a jury decide his “claims to real property.” (NYSCEF Doc. 101, p. 2.) He does not
challenge in this section of the memorandum Defendant Sheehan’s well-supported argument that
her counterclaims must be decided by the Court. (Id.)
Under “POINT TWO” of his memorandum of law, Plaintiff only challenges Defendant
Sheehan’s argument that her unjust enrichment counterclaim must be decided by the Court. (Id.)
Plaintiff does not address Defendant Sheehan’s other counterclaims, which are equitable in nature.
Although not expressly stated, it is apparent Plaintiff is arguing that, because the unjust enrichment
counterclaim would result in a monetary judgment, it is a legal claim and, thus, it should be tried
by a jury. This flies in the face of well-settled common law that an unjust enrichment claim is one
in equity. The Court of Appeals has consistently stated that “[t]he basis of a claim for unjust
enrichment is that the defendant has obtained a benefit which in equity and good conscience should
be paid to the plaintiff.” Corsello v. Verizon NY, Inc., 18 N.Y.3d 777, 790 (2012). “It is available
only in unusual situations when, though the defendant has not breached a contract nor committed
a recognized tort, circumstances create an equitable obligation running from the defendant to the
plaintiff.” Typical cases are those in which the defendant, though perhaps not guilty of any
wrongdoing, has received money to which he or she is not entitled. Id. Of course, in this case, it
is Plaintiff who has received the benefit of a great deal of money provided by Defendant Sheehan
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to which he was not entitled. The unjust enrichment counterclaim, as well as the counterclaims
for a lien in equity and constructive trust claim, remains applicable even if the Court were to find
the 2018 land contract to be null and void.
As set forth in CPLR §4101, “equitable defenses and equitable counterclaims shall be tried
by the court.” Defendant Sheehan’s counterclaims must be decided by the Court. It is as simple
as that.
B. Plaintiff Does Not Sufficiently Rebut Defendants Sheehan’s Argument that Plaintiff’s
Causes of Action in Equity Must Be Tried by the Court.
First, Plaintiff does not argue that all of his causes of action are of law and not equity. (Id.)
Rather, Plaintiff focuses on his cause of action to have the Court declare that the 2018 land contract
is null and void and that he is the only contract vendee under the 2015 land contract. He does so
to argue that it is a claim made under Real Property Actions and Proceedings Law (“RPAPL”)
Article 15 giving him the right to a jury trial. He does not acknowledge that he also seeks a judicial
declaration that Defendants must disclose payment particulars and the balance due under the 2015
land contract. Furthermore, Plaintiff does not acknowledge that he seeks a declaratory judgment
declaring Defendant Sheehan made voluntary payments and that those payments are to be credited
to the 2015 land contract. These two causes of action are equitable claims and they directly relate
to Defendant Sheehan's counterclaims under which she seeks to recoup her investment in the
improvement of the residence at issue. Plaintiff’s causes of action should be tried by the Court
along with Defendant Sheehan’s equitable counterclaims.
It should also be noted that Plaintiff asserts four equitable defenses against Defendant
Sheehan’s equitable counterclaims, to wit: Second Affirmative Defense (“fraud, disloyalty, breach
of trust and honesty in the relationship of the parties”); Third Affirmative Defense (voluntary
payment doctrine bars equitable counterclaims), Fourth Affirmative Defense, (defense that 2018
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land contract is bogus (recission of contract)); and Fifth Affirmative Defense (unclean hands
doctrine). (See NYSCEF Doc. 29 (Reply to Counterclaims); see also NYSCEF Doc. 30 (Plaintiff’s
reply to Defendant Erwin’s counterclaims (equitable defenses asserted).) These must be tried by
the Court pursuant to CPLR §4101. As quoted above, CPLR §4101 states that “equitable defenses
and equitable counterclaims shall be tried by the court.” (Emphasis added.) The fact that
Plaintiff’s defenses in equity must be tried by the Court only bolsters the argument that there must
be a bench trial.
In the event the Court does not agree that Plaintiff’s request to have the 2018 land contract
declared null and void is a cause of action for a rescission of a contract to be tried by the Court, at
the very least, Plaintiff’s two equitable causes of action discussed above should be tried by the
Court together with Plaintiff’s equitable defenses and Defendant Sheehan’s counterclaims and
Defendant Erwin’s counterclaims. The determination of the parties’ interests in the subject real
property may be tried by a jury under RPAPL Article 15.
C. The Attorney Affirmation of Matthew D. Norfolk Should Not Be Stricken as
Violating 22 NYCRR §202.8(c).
Any alleged violation of 22 NYCRR §202.8(c) does not merit striking Attorney Norfolk’s
affirmation. Courts have recognized that including legal arguments in an attorney affirmation is a
common practice. See, e.g., Love-Evans v. Goodman Mgt. Co., Inc., 2014 N.Y. Slip Op 31113[U],
*1 (Sup. Ct. NY Co. 2014) (The “argument that [a] motion is defective because [a party’s] attorney
engages in legal argument in his affirmation rather than in a memorandum of law, is unavailing...
such practice is common place.”) In fact, Attorney Brooks’ affirmation is riddled with legal
arguments.
Attorney Norfolk’s affirmation including legal arguments was done in the interest of
judicial economy. An additional memorandum of law was not necessary. If anything, it would be
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an inconvenience for the Court. Should the Court find that it does violate 22 NYCRR §202.8(c),
Defendant Sheehan would urge the Court to find any such violation as harmless error. To strike
the affirmation would be an unfair and harsh action.
CONCLUSION
Defendant Sheehan respectfully requests that this Court grant her motion in its entirety and
enter 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, together with such other and further relief that this Court deems
just and proper, including but not limited to, costs and disbursements allowable for making the
instant motion. In the alternative, Defendant Sheehan requests that this Court grant her motion
and enter an order directing Defendant Sheehan’s counterclaims to be tried by the Court, and
granting Defendant Trisha Sheehan such other and further relief as the Court may deem just and
proper.
Dated: Lake Placid, New York
May 25, 2023
Norfolk Beier, PLLC
By:___________________________
Matthew D. Norfolk, Esq.
1936 Saranac Avenue, Ste. 106
Lake Placid, New York 12946
518.302.8080
mnorfolk@norfolkbeier.com
Attorneys for Defendant Trisha Sheehan
To: James M. Brooks, Esq.
Law Office of James M. Brooks
72 Olympic Drive
Lake Placid, New York 12946
518.523.1555
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Attorney for Plaintiff
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MOTION CERTIFICATION
PRINTING SPECIFICATIONS STATEMENT
FOR REPLY 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, exclusive of the caption, table of
contents, table of authorities and signature block, is less than 4,200 words and this document is in
compliance with the word count limit.
Dated: Lake Placid, New York
May 25, 2023
______________________________
Matthew D. Norfolk, Esq.
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Preview
FILED: ESSEX COUNTY CLERK 05/25/2023 04:01 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/25/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ESSEX -------------------------------------------------------------------------- MATT LAVALLEE, Plaintiff, Index No.: CV20-0447 RJI No. 15-1-2020-0185E against TRISHA SHEEHAN, and MARCIA M. ERWIN, as Ancillary Executrix of the goods, chattels and credits of Maynard Francis Erwin, A/K/A M. Frank Erwin, deceased, Defendants. -------------------------------------------------------------------------- REPLY MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT TRISHA SHEEHAN’S MOTION TO STRIKE DEMAND FOR JURY TRIAL Matthew D. Norfolk, Esq. Jena L. Boise, Esq. Norfolk Beier, PLLC 1936 Saranac Avenue, Suite.106 Lake Placid, New York 12946 518.302-8080 mnorfolk@norfolkbeier.com Attorney for Defendant Trisha Sheehan 1 of 7 FILED: ESSEX COUNTY CLERK 05/25/2023 04:01 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/25/2023 PRELIMINARY STATEMENT This memorandum of law is submitted in reply to Plaintiff’s opposition to and in support of Defendant Trisha Sheehan’s motion to strike Plaintiff’s demand for a jury trial. LEGAL ARGUMENTS A. Plaintiff’s Half-Hearted Challenges Fail to Overcome Defendant Sheehan’s Argument that Her Counterclaims Must Be Decided by the Court. Under “POINT ONE” of his memorandum of law Plaintiff only argues that he is entitled to having a jury decide his “claims to real property.” (NYSCEF Doc. 101, p. 2.) He does not challenge in this section of the memorandum Defendant Sheehan’s well-supported argument that her counterclaims must be decided by the Court. (Id.) Under “POINT TWO” of his memorandum of law, Plaintiff only challenges Defendant Sheehan’s argument that her unjust enrichment counterclaim must be decided by the Court. (Id.) Plaintiff does not address Defendant Sheehan’s other counterclaims, which are equitable in nature. Although not expressly stated, it is apparent Plaintiff is arguing that, because the unjust enrichment counterclaim would result in a monetary judgment, it is a legal claim and, thus, it should be tried by a jury. This flies in the face of well-settled common law that an unjust enrichment claim is one in equity. The Court of Appeals has consistently stated that “[t]he basis of a claim for unjust enrichment is that the defendant has obtained a benefit which in equity and good conscience should be paid to the plaintiff.” Corsello v. Verizon NY, Inc., 18 N.Y.3d 777, 790 (2012). “It is available only in unusual situations when, though the defendant has not breached a contract nor committed a recognized tort, circumstances create an equitable obligation running from the defendant to the plaintiff.” Typical cases are those in which the defendant, though perhaps not guilty of any wrongdoing, has received money to which he or she is not entitled. Id. Of course, in this case, it is Plaintiff who has received the benefit of a great deal of money provided by Defendant Sheehan 2 2 of 7 FILED: ESSEX COUNTY CLERK 05/25/2023 04:01 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/25/2023 to which he was not entitled. The unjust enrichment counterclaim, as well as the counterclaims for a lien in equity and constructive trust claim, remains applicable even if the Court were to find the 2018 land contract to be null and void. As set forth in CPLR §4101, “equitable defenses and equitable counterclaims shall be tried by the court.” Defendant Sheehan’s counterclaims must be decided by the Court. It is as simple as that. B. Plaintiff Does Not Sufficiently Rebut Defendants Sheehan’s Argument that Plaintiff’s Causes of Action in Equity Must Be Tried by the Court. First, Plaintiff does not argue that all of his causes of action are of law and not equity. (Id.) Rather, Plaintiff focuses on his cause of action to have the Court declare that the 2018 land contract is null and void and that he is the only contract vendee under the 2015 land contract. He does so to argue that it is a claim made under Real Property Actions and Proceedings Law (“RPAPL”) Article 15 giving him the right to a jury trial. He does not acknowledge that he also seeks a judicial declaration that Defendants must disclose payment particulars and the balance due under the 2015 land contract. Furthermore, Plaintiff does not acknowledge that he seeks a declaratory judgment declaring Defendant Sheehan made voluntary payments and that those payments are to be credited to the 2015 land contract. These two causes of action are equitable claims and they directly relate to Defendant Sheehan's counterclaims under which she seeks to recoup her investment in the improvement of the residence at issue. Plaintiff’s causes of action should be tried by the Court along with Defendant Sheehan’s equitable counterclaims. It should also be noted that Plaintiff asserts four equitable defenses against Defendant Sheehan’s equitable counterclaims, to wit: Second Affirmative Defense (“fraud, disloyalty, breach of trust and honesty in the relationship of the parties”); Third Affirmative Defense (voluntary payment doctrine bars equitable counterclaims), Fourth Affirmative Defense, (defense that 2018 3 3 of 7 FILED: ESSEX COUNTY CLERK 05/25/2023 04:01 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/25/2023 land contract is bogus (recission of contract)); and Fifth Affirmative Defense (unclean hands doctrine). (See NYSCEF Doc. 29 (Reply to Counterclaims); see also NYSCEF Doc. 30 (Plaintiff’s reply to Defendant Erwin’s counterclaims (equitable defenses asserted).) These must be tried by the Court pursuant to CPLR §4101. As quoted above, CPLR §4101 states that “equitable defenses and equitable counterclaims shall be tried by the court.” (Emphasis added.) The fact that Plaintiff’s defenses in equity must be tried by the Court only bolsters the argument that there must be a bench trial. In the event the Court does not agree that Plaintiff’s request to have the 2018 land contract declared null and void is a cause of action for a rescission of a contract to be tried by the Court, at the very least, Plaintiff’s two equitable causes of action discussed above should be tried by the Court together with Plaintiff’s equitable defenses and Defendant Sheehan’s counterclaims and Defendant Erwin’s counterclaims. The determination of the parties’ interests in the subject real property may be tried by a jury under RPAPL Article 15. C. The Attorney Affirmation of Matthew D. Norfolk Should Not Be Stricken as Violating 22 NYCRR §202.8(c). Any alleged violation of 22 NYCRR §202.8(c) does not merit striking Attorney Norfolk’s affirmation. Courts have recognized that including legal arguments in an attorney affirmation is a common practice. See, e.g., Love-Evans v. Goodman Mgt. Co., Inc., 2014 N.Y. Slip Op 31113[U], *1 (Sup. Ct. NY Co. 2014) (The “argument that [a] motion is defective because [a party’s] attorney engages in legal argument in his affirmation rather than in a memorandum of law, is unavailing... such practice is common place.”) In fact, Attorney Brooks’ affirmation is riddled with legal arguments. Attorney Norfolk’s affirmation including legal arguments was done in the interest of judicial economy. An additional memorandum of law was not necessary. If anything, it would be 4 4 of 7 FILED: ESSEX COUNTY CLERK 05/25/2023 04:01 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/25/2023 an inconvenience for the Court. Should the Court find that it does violate 22 NYCRR §202.8(c), Defendant Sheehan would urge the Court to find any such violation as harmless error. To strike the affirmation would be an unfair and harsh action. CONCLUSION Defendant Sheehan respectfully requests that this Court grant her motion in its entirety and enter 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, together with such other and further relief that this Court deems just and proper, including but not limited to, costs and disbursements allowable for making the instant motion. In the alternative, Defendant Sheehan requests that this Court grant her motion and enter an order directing Defendant Sheehan’s counterclaims to be tried by the Court, and granting Defendant Trisha Sheehan such other and further relief as the Court may deem just and proper. Dated: Lake Placid, New York May 25, 2023 Norfolk Beier, PLLC By:___________________________ Matthew D. Norfolk, Esq. 1936 Saranac Avenue, Ste. 106 Lake Placid, New York 12946 518.302.8080 mnorfolk@norfolkbeier.com Attorneys for Defendant Trisha Sheehan To: James M. Brooks, Esq. Law Office of James M. Brooks 72 Olympic Drive Lake Placid, New York 12946 518.523.1555 5 5 of 7 FILED: ESSEX COUNTY CLERK 05/25/2023 04:01 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/25/2023 Attorney for Plaintiff 6 6 of 7 FILED: ESSEX COUNTY CLERK 05/25/2023 04:01 PM INDEX NO. CV20-0447 NYSCEF DOC. NO. 105 RECEIVED NYSCEF: 05/25/2023 MOTION CERTIFICATION PRINTING SPECIFICATIONS STATEMENT FOR REPLY 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, exclusive of the caption, table of contents, table of authorities and signature block, is less than 4,200 words and this document is in compliance with the word count limit. Dated: Lake Placid, New York May 25, 2023 ______________________________ Matthew D. Norfolk, Esq. 7 7 of 7