Preview
FILED: HERKIMER COUNTY CLERK 08/10/2023 03:12 PM INDEX NO. EF2021-108166
NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 08/10/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF HERKIMER
CHRISTOPHER SMITH AND MICHAEL SMITH, AS
TRUSTEES OF THE JAY AND PATRICIA SMITH
IRREVOCABLE TRUST, AFFIRMATION OF
DANIEL J. PAUTZ
Plaintiffs,
Index No. EF2021-108166
v.
Hon. John H. Crandall,
ANNA J. SMITH, AS TRUSTEE OF THE THEODORE P. A.J.S.C.
SMITH INCOME ONLY IRREVOCABLE TRUST AND
ANNA J. SMITH, AS EXECUTOR OF THE ESTATE OF
THEODORE P. SMITH
Defendants.
Daniel J. Pautz, Esq. affirms the following under penalty of perjury:
l. I am an attorney duly admitted to practice before the Courts of the State of New
York and am a member of Bond, Schoeneck & King, PLLC, attorneys for Plaintiffs Christopher
Smith and Michael Smith as Trustees of the Jay and Patricia Smith Irrevocable Trust ("Plaintiffs")
in this action. Accordingly, I am fully familiar with the facts and proceedings in this action.
2. I submit this affirmation in support of Plaintiffs' motion to renew their opposition
to Defendants Anna J. Smith, as Trustee of the Theodore P. Smith Irrevocable Trust, and Anna
Jane Smith, as Executor of the Estate of Theodore P. Smith's ("Defendants") motion for a stay
pursuant to CPLR § 5519(a)(6) and, upon renewal, enjoining Defendants from conducting any
mining activities on the subject property or otherwise increasing the undertaking set pursuant to
CPLR § 5519(a)(6) to prevent waste of the subject property, along with such other and further
relief the Court deems just and proper.
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Procedural History
3. Plaintiffs initiated this action by filing their Summons and Complaint in the
Herkimer County Clerk's Office on April 27, 2021 (Doc 1).
4. At the same time, Plaintiffs moved by Order to Show Cause for a preliminary
injunction enjoining Defendants from conducting any mining activities on the property that is the
subject of this partition action (Doc 6).
5. The Court granted Plaintiffs requested preliminary injunction by Decision and
Order dated September 28, 2021 (Doc 68).
6. Defendants subsequently appealed the Court's preliminary injunction order (Doc
71).
7. During the pendency of Defendants' appeal, Plaintiffs were made aware that
Defendants had violated the Court's prior preliminary injunction order and moved by Order to
Show Cause for the Court to enter a revised preliminary injunction order and to sanction
Defendants for their violative conduct (Doc 157).
8. The Court granted Plaintiffs' motion to renew, revised the prior preliminary
;
injunction, and sanctioned Defendants for their violative conduct (Doc 198).
9. The Court also entered three Orders directing the sale of the subject property (Doc
199,200,201).
10. Defendants appealed the Court's Orders directing the sale of the subject property
(Doc 205,212,213).
11. Defendants then moved by order to show cause for an order pursuant to CPLR §
5519(a)(6) staying enforcement of the Court's Orders directing the sale of the subject property and
setting an undertaking pursuant to CPLR § 5519(a)(6).
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12. The Court granted Defendants' motion for a stay by Order dated June 30, 2023
(Doc 222).
13. On June 30, 2023, the Fourth Department entered its Decision and Order regarding
Defendants' appeal from the Court's preliminary injunction Order, reversing this Court's Order
and denying Plaintiffs' request for a preliminary injunction (Doc 232).
14. This motion follows.
Argument
15. The mandates of CPLR $ 5519a)6) are clear: a stay is permitted so long as "an
undertaking in a sum fixed by the court of original instance is given that the appellant or moving
party will not commit or suffer to be committed any waste and that ifthe judgment or order appealed
from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall
pay the value of the use and occupancy of such property" (emphasis added).
16. The Court's Order staying execution of the order on appeal resolves the latter
requirement of CPLR $ 5519a)6), namely the value of Defendants' use and occupancy of the
subject property pending appeal (Doc 222). Specifically, the Court determined the reasonable lost
rental value of the 3-bedroom rental unit on the subject property is $1,000 per month, that the
reasonable value of Defendants' presence on the subject property (without mining) is $1,750 per
month, and that property taxes accrue on the subject property at a rate of $408.47 per month (id.).
As a result, this Court directed Defendants to pay an undertaking in the amount of $28,426.23 and
to deposit an additional $3,158.47 per month should Defendants' appeal extend beyond January
of 2024 (id.).
17. Importantly, the Court did not consider whether Defendants would commit waste
to the subject property through mining or otherwise when it entered the stay order (see Doc 222).
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18. This was because, as Defendants themselves indicated, at the time Defendants filed
their motion, no undertaking was necessary to prevent waste as the Court's preliminary injunction
order provided adequate protection "to preserve the status quo and protect the interests of the
plaintiffs during the pendency of the appeal" (Doc 207, 12).
19. Indeed, in their motion for a stay, Defendants expressly recognized waste
constitutes "whatever does lasting damage to real property," i.e., mining the property (Doc 207, 1
13).
20. Defendants' recognition that CPLR § 55 l 9(a)(6) did not permit them to commit
any waste to the subject property and express representation that they would follow the Court's
preliminary injunction order made an undertaking to prevent waste superfluous.
21. Despite Defendants' express recognition that CPLR § 5519(a)(6) statutorily
precludes them from committing any waste to the subject property, once the Fourth Department
struck down this Court's preliminary injunction order, Defendants immediately took steps to
commit waste to the subject property through tourist and commercial mining activity (see Affidavit
of Jay Smith, dated August 10, 2023 [Smith A(T"], 7 5-13).
22. It is respectfully submitted that Defendants' conduct in ignoring the clear language
of CPLR § 5519(a)(6) permits the Court to lift the stay entered by the Court on June 30, 2023 and
allow for the sale of the subject property.
23. If the Court is unwilling to lift its previously ordered stay, the statutory language of
CPLR § 5519(a)(6) clearly requires Defendants to affirm they will not commit or suffer to be
committed any waste to the subject property. Such affirmation necessarily includes a prohibition
on mining the subject property.
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24. CPLR § 5519(a)(6) does not require Plaintiffs to establish a likelihood of success
on the merits, irreparable harm, or a balance of the equities for such a prohibition. The statutory
text is clear Defendants cannot commit waste to the property.
25. As a result, this Court should revise its prior stay order to include an order enjoining
Defendants from committing any waste to the subject property, whether through mining the subject
property or otherwise.
26. Alternatively, this Court should significantly increase the required undertaking to
protect against the waste Defendants are actively committing to the subject property.
27. Defendants have never allowed Plaintiffs to see their books and are in sole
possession of all information to permit the Court to determine the exact value of Defendants'
waste.
28. Accordingly, Plaintiffs respectfully request that the Court set a hearing to determine
the proper undertaking pursuant to CPLR § 5519(a)(6) should the Court be disinclined to bar
Defendants from mining the subject property.
29. Alternatively, the Court should direct Defendants to pay an additional undertaking
in the amount of no less than $300,000, which constitutes the estimated value of Defendants' waste
for the remainder of the current mining season, and $87,428.57 per month starting April 1, 2023,
constituting the anticipated value of Defendants' waste per month for the next mining season.
30. Evidence of the Fourth Department's decision and Defendants' conduct in response
to the Fourth Department's decision could not have been presented to the Court in opposition to
Defendants' original application for a stay because such evidence did not exist at that time. Such
evidence manifestly changes the analysis of the required undertaking for Defendants to stay
execution of the Court's Order directing the sale of the subject property.
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31. As a result, Plaintiffs have met their burden in establishing new facts necessarily
impact the Court's analysis of the required undertaking pursuant to CPLR § 5519(a)(6).
32. Based on the above, this Court should enter an Order granting Plaintiffs motion to
renew their opposition to Defendants' motion for a stay and, upon renewal, enjoining Defendants
from conducting any mining activities on the subject property or otherwise increasing the
undertaking set pursuant to CPLR § 5519(a)(6) to prevent waste of the subject property, along
with such other and further relief the Court deems just and proper.
Dated: August 1 O, 2023
Daniel J. Pautz, Esq.
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Certificate of Compliance
The undersigned on behalf of Plaintiffs Christopher Smith and Michael Smith, as Trustees
of the Jay and Patricia Smith Irrevocable Trust hereby certifies that this Affirmation complies with
the 7,000-word limit set forth in 22 NYCRR $ 202.8-b(a). The Affirmation contains 1,346 words,
excluding the parts of the Affirmation exempted by 22 NYCRR $ 202.8-b(b), according to the
Word Count function on Microsoft Word.
Dated: Syracuse, New York
August 1 O, 2023
Daniel J. Pautz, Esq.
Bond, Schoeneck & King, PLLC
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Preview
FILED: HERKIMER COUNTY CLERK 08/10/2023 03:12 PM INDEX NO. EF2021-108166 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 08/10/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF HERKIMER CHRISTOPHER SMITH AND MICHAEL SMITH, AS TRUSTEES OF THE JAY AND PATRICIA SMITH IRREVOCABLE TRUST, AFFIRMATION OF DANIEL J. PAUTZ Plaintiffs, Index No. EF2021-108166 v. Hon. John H. Crandall, ANNA J. SMITH, AS TRUSTEE OF THE THEODORE P. A.J.S.C. SMITH INCOME ONLY IRREVOCABLE TRUST AND ANNA J. SMITH, AS EXECUTOR OF THE ESTATE OF THEODORE P. SMITH Defendants. Daniel J. Pautz, Esq. affirms the following under penalty of perjury: l. I am an attorney duly admitted to practice before the Courts of the State of New York and am a member of Bond, Schoeneck & King, PLLC, attorneys for Plaintiffs Christopher Smith and Michael Smith as Trustees of the Jay and Patricia Smith Irrevocable Trust ("Plaintiffs") in this action. Accordingly, I am fully familiar with the facts and proceedings in this action. 2. I submit this affirmation in support of Plaintiffs' motion to renew their opposition to Defendants Anna J. Smith, as Trustee of the Theodore P. Smith Irrevocable Trust, and Anna Jane Smith, as Executor of the Estate of Theodore P. Smith's ("Defendants") motion for a stay pursuant to CPLR § 5519(a)(6) and, upon renewal, enjoining Defendants from conducting any mining activities on the subject property or otherwise increasing the undertaking set pursuant to CPLR § 5519(a)(6) to prevent waste of the subject property, along with such other and further relief the Court deems just and proper. 16180698.2 1 of 7 FILED: HERKIMER COUNTY CLERK 08/10/2023 03:12 PM INDEX NO. EF2021-108166 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 08/10/2023 Procedural History 3. Plaintiffs initiated this action by filing their Summons and Complaint in the Herkimer County Clerk's Office on April 27, 2021 (Doc 1). 4. At the same time, Plaintiffs moved by Order to Show Cause for a preliminary injunction enjoining Defendants from conducting any mining activities on the property that is the subject of this partition action (Doc 6). 5. The Court granted Plaintiffs requested preliminary injunction by Decision and Order dated September 28, 2021 (Doc 68). 6. Defendants subsequently appealed the Court's preliminary injunction order (Doc 71). 7. During the pendency of Defendants' appeal, Plaintiffs were made aware that Defendants had violated the Court's prior preliminary injunction order and moved by Order to Show Cause for the Court to enter a revised preliminary injunction order and to sanction Defendants for their violative conduct (Doc 157). 8. The Court granted Plaintiffs' motion to renew, revised the prior preliminary ; injunction, and sanctioned Defendants for their violative conduct (Doc 198). 9. The Court also entered three Orders directing the sale of the subject property (Doc 199,200,201). 10. Defendants appealed the Court's Orders directing the sale of the subject property (Doc 205,212,213). 11. Defendants then moved by order to show cause for an order pursuant to CPLR § 5519(a)(6) staying enforcement of the Court's Orders directing the sale of the subject property and setting an undertaking pursuant to CPLR § 5519(a)(6). 2 16180698.2 2 of 7 FILED: HERKIMER COUNTY CLERK 08/10/2023 03:12 PM INDEX NO. EF2021-108166 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 08/10/2023 12. The Court granted Defendants' motion for a stay by Order dated June 30, 2023 (Doc 222). 13. On June 30, 2023, the Fourth Department entered its Decision and Order regarding Defendants' appeal from the Court's preliminary injunction Order, reversing this Court's Order and denying Plaintiffs' request for a preliminary injunction (Doc 232). 14. This motion follows. Argument 15. The mandates of CPLR $ 5519a)6) are clear: a stay is permitted so long as "an undertaking in a sum fixed by the court of original instance is given that the appellant or moving party will not commit or suffer to be committed any waste and that ifthe judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the appellant or moving party shall pay the value of the use and occupancy of such property" (emphasis added). 16. The Court's Order staying execution of the order on appeal resolves the latter requirement of CPLR $ 5519a)6), namely the value of Defendants' use and occupancy of the subject property pending appeal (Doc 222). Specifically, the Court determined the reasonable lost rental value of the 3-bedroom rental unit on the subject property is $1,000 per month, that the reasonable value of Defendants' presence on the subject property (without mining) is $1,750 per month, and that property taxes accrue on the subject property at a rate of $408.47 per month (id.). As a result, this Court directed Defendants to pay an undertaking in the amount of $28,426.23 and to deposit an additional $3,158.47 per month should Defendants' appeal extend beyond January of 2024 (id.). 17. Importantly, the Court did not consider whether Defendants would commit waste to the subject property through mining or otherwise when it entered the stay order (see Doc 222). 3 16180698.2 3 of 7 FILED: HERKIMER COUNTY CLERK 08/10/2023 03:12 PM INDEX NO. EF2021-108166 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 08/10/2023 18. This was because, as Defendants themselves indicated, at the time Defendants filed their motion, no undertaking was necessary to prevent waste as the Court's preliminary injunction order provided adequate protection "to preserve the status quo and protect the interests of the plaintiffs during the pendency of the appeal" (Doc 207, 12). 19. Indeed, in their motion for a stay, Defendants expressly recognized waste constitutes "whatever does lasting damage to real property," i.e., mining the property (Doc 207, 1 13). 20. Defendants' recognition that CPLR § 55 l 9(a)(6) did not permit them to commit any waste to the subject property and express representation that they would follow the Court's preliminary injunction order made an undertaking to prevent waste superfluous. 21. Despite Defendants' express recognition that CPLR § 5519(a)(6) statutorily precludes them from committing any waste to the subject property, once the Fourth Department struck down this Court's preliminary injunction order, Defendants immediately took steps to commit waste to the subject property through tourist and commercial mining activity (see Affidavit of Jay Smith, dated August 10, 2023 [Smith A(T"], 7 5-13). 22. It is respectfully submitted that Defendants' conduct in ignoring the clear language of CPLR § 5519(a)(6) permits the Court to lift the stay entered by the Court on June 30, 2023 and allow for the sale of the subject property. 23. If the Court is unwilling to lift its previously ordered stay, the statutory language of CPLR § 5519(a)(6) clearly requires Defendants to affirm they will not commit or suffer to be committed any waste to the subject property. Such affirmation necessarily includes a prohibition on mining the subject property. 4 16180698.2 4 of 7 FILED: HERKIMER COUNTY CLERK 08/10/2023 03:12 PM INDEX NO. EF2021-108166 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 08/10/2023 24. CPLR § 5519(a)(6) does not require Plaintiffs to establish a likelihood of success on the merits, irreparable harm, or a balance of the equities for such a prohibition. The statutory text is clear Defendants cannot commit waste to the property. 25. As a result, this Court should revise its prior stay order to include an order enjoining Defendants from committing any waste to the subject property, whether through mining the subject property or otherwise. 26. Alternatively, this Court should significantly increase the required undertaking to protect against the waste Defendants are actively committing to the subject property. 27. Defendants have never allowed Plaintiffs to see their books and are in sole possession of all information to permit the Court to determine the exact value of Defendants' waste. 28. Accordingly, Plaintiffs respectfully request that the Court set a hearing to determine the proper undertaking pursuant to CPLR § 5519(a)(6) should the Court be disinclined to bar Defendants from mining the subject property. 29. Alternatively, the Court should direct Defendants to pay an additional undertaking in the amount of no less than $300,000, which constitutes the estimated value of Defendants' waste for the remainder of the current mining season, and $87,428.57 per month starting April 1, 2023, constituting the anticipated value of Defendants' waste per month for the next mining season. 30. Evidence of the Fourth Department's decision and Defendants' conduct in response to the Fourth Department's decision could not have been presented to the Court in opposition to Defendants' original application for a stay because such evidence did not exist at that time. Such evidence manifestly changes the analysis of the required undertaking for Defendants to stay execution of the Court's Order directing the sale of the subject property. 5 16180698.2 5 of 7 FILED: HERKIMER COUNTY CLERK 08/10/2023 03:12 PM INDEX NO. EF2021-108166 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 08/10/2023 31. As a result, Plaintiffs have met their burden in establishing new facts necessarily impact the Court's analysis of the required undertaking pursuant to CPLR § 5519(a)(6). 32. Based on the above, this Court should enter an Order granting Plaintiffs motion to renew their opposition to Defendants' motion for a stay and, upon renewal, enjoining Defendants from conducting any mining activities on the subject property or otherwise increasing the undertaking set pursuant to CPLR § 5519(a)(6) to prevent waste of the subject property, along with such other and further relief the Court deems just and proper. Dated: August 1 O, 2023 Daniel J. Pautz, Esq. 6 16180698.2 6 of 7 FILED: HERKIMER COUNTY CLERK 08/10/2023 03:12 PM INDEX NO. EF2021-108166 NYSCEF DOC. NO. 244 RECEIVED NYSCEF: 08/10/2023 Certificate of Compliance The undersigned on behalf of Plaintiffs Christopher Smith and Michael Smith, as Trustees of the Jay and Patricia Smith Irrevocable Trust hereby certifies that this Affirmation complies with the 7,000-word limit set forth in 22 NYCRR $ 202.8-b(a). The Affirmation contains 1,346 words, excluding the parts of the Affirmation exempted by 22 NYCRR $ 202.8-b(b), according to the Word Count function on Microsoft Word. Dated: Syracuse, New York August 1 O, 2023 Daniel J. Pautz, Esq. Bond, Schoeneck & King, PLLC 7 16180698.2 7 of 7