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FILED: OSWEGO COUNTY CLERK 08/19/2021 02:34 PM INDEX NO. EFC-2021-0742
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/19/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF OSWEGO
KYLE R. MILK,
ATTORNEY
AFFIRMATION
Plaintiff,
-against-
Index No. EFC-2021-0742
DAVID MENARD, JANET O'MARA,
JOHN and JANE DOES # 1-10.
Defendants.
ERIN M. TYREMAN, ESQ., under penalty of perjury, affirms as follows:
1. I am an attorney admitted to practice before the Courts of the State of New York
and am associated with the firm of Melvin & Melvin, PLLC, attorneys for the Plaintiff Kyle
Milk ("Plaintiff").
2. This Affirmation is submitted in opposition to Defendant's Cross-Motion to Dismiss
pursuant to CPLR § 1001(a) and CPLR § 3211(a)(10).
3. I am fully familiar with all the facts and circumstances stated within this Affirmation.
Procedural History
4. The underlying action was commenced by the filing of a Summons and Complaint on
May 25, 2021. Defendant served its Answer with Counterclaims on or about July 12, 2021.
Plaintiff filed and served its Reply to Counterclaims on July 30, 2021.
5. On July 14, 2021, Defendants served the within Cross-Motion upon Plaintiff's
Defendants'
counsel. This affirmation is in opposition to Cross-Motion for dismissal.
6. Plaintiff's action was brought before this Court pursuant to Real Property Actions and
Proceedings Law Article 15 for a determination of his ownership interest in the Disputed Land
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(as defined below) pursuant to the language in his deed, or alternatively, pursuant to Real
Property Actions and Proceedings Law Article 5, adverse possession.
7. As set forth in Plaintiff's Complaint, the land at issue is a small parcel of undeveloped
property with a private drive (Wedgeworth Point) running through it, located on the shore of
Oneida Lake (the "Disputed Land"). The parcel is approximately 50 feet wide. Its eastern edge
abuts property owned by Plaintiff and the parcel's western edge abuts property owned by
Plaintiff's in-laws, the Guertins (non-parties). On its southern edge, the parcel abuts the shore of
Oneida Lake and on its northern edge, the parcel abuts land owned by Defendants Menard and
O'Mara.
Statement of Facts
8. The description of the land owned by Plaintiff is set forth in his deed as follows:
"ALL that tract or parcel of land, situate in the Town of West Monroe, County of
Oswego and State of New York, described as follows: Being Lots Nos. 12 and 13 of the
Harbor Farms Cottage Lots, said Lots being an extension of Lots Nos. 1 and 11 extending
easterly along the shore of Oneida Lake together with a Right of Way over the driveway
adjacent to said premises which leads to the highway. With any strips or gores related to
this premises. Being the same premises conveyed to James E. Tyrrell and Sharon L.
Tyrrell by Deed dated August 30, 1989 and recorded in the Oswego County Clerk's
Office on September 5, 1989 in Book 1095 of Deeds at Page 270, said James E. Tyrrell
24th
having died on the day of July, 2011 leaving said Sharon L. Tyrrell surviving tenant
by the entirety and sole owner of said premises. Subject to easements, covenants and
any."
restrictions of record, if See Exhibit A.
9. As set forth in the Complaint, Plaintiff is one of several landowners located at
Lake.1
Wedgeworth Point along the shore of Oneida
10. As can be seen from his own deed description, Plaintiff, like many other
homeowners in the Wedgeworth Point area hold a right-of-way over Wedgeworth Point, a
private drive, for access to the highway.
I
It is irnportant to note that the subject Disputed Land is located on Oneida Lake, and not Ontario Lake as
referenced in Defendant's Cross-Motion.
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11. Wedgeworth Point is not a public road and is not intended for public use.
12. Wedgeworth Point is not owned by the Town of West Monroe and the Town does
not maintain the road.
13. Wedgeworth Point is a private drive intended for use only by those residents
living at Wedgeworth Point for access to their property from the highway.
14. In 2014, the property owners at Wedgeworth Point made a Right-of-Way
agreement concerning the upkeep and maintenance of Wedgeworth Point.
15. This agreement was not entered into by all landowners with a right-of-way over
Wedgeworth Point; however, a mere desire not to enter into a maintenance agreement does not
landowners'
mean that the interest in the road is somehow diminished. The right-of-way over
Wedgeworth Point has been recorded in the deeds of landowners at Wedgeworth Point for the
past several decades since Wedgeworth Point is the only way for these landowners to access the
public highway.
16. Notably, the Menard/O'Mara deed does not contain a deeded right-of-way over
Wedgeworth Point. See Exhibit B.
17. The fact that Defendants Menard and O'Mara do not have a deeded right-of-way
over Wedgeworth Point, is indicative evidence that Defendants Menard and O'Mara do not in
fact own nor have any legal claim to the Disputed Land, since Wedgeworth Point runs directly
through the Disputed Land.
18. Defendants Menard and O'Mara are not parties to the right-of-way agreement
because they do not have a deeded and recorded right-of-way over Wedgeworth Point.
19. Defendants Menard and O'Mara do not financially contribute to the upkeep and
maintenance of Wedgeworth Point.
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20. On repeated occasions in January, February, March, and April 2021 Defendants
Menard and O'Mara have been trespassing upon Wedgeworth Point to access the back side of
their property located at 18 Toad Harbor Road.
A_RGUMENT
Defendants'
I. Plaintiff did not fail to name a necessary or indispensable party and
Cross-motion to dismiss must therefore be denied.
21. CPLR § 1001(a) requires persons to be joined as a party "who might be
action."
inequitably affected by a judgment in the
22. In this matter, there are, upon information and belief, ten parcels to the east of the
Plaintiff's parcel that have a right-of-way over the private drive, Wedgeworth Point. Each of
their deeds is annexed hereto as Exhibit C.
23. It is asserted that none of the other landowners on Wedgeworth Point as right-of-
way holders are necessary and indispensable parties to this action.
24. As can be seen from their deed language, each of these landowners has a recorded
right-of-way over Wedgeworth Point. This right-of-way runs with the land and cannot be
altered or otherwise changed without written agreement of the right-of-
rescinded, terminated,
way holder. Furthermore, the right-of-way over Wedgeworth Point is not only a right-of-way by
recorded deed, but also one of necessity since this is the only way these landowners can access
the public highway.
25. The very purpose of establishing a legal right-of-way and recording it at the
County Clerk's office is to reserve a right which cannot and shall not be interfered with.
26. The determination of whether Kyle Milk, David Menard, Janet O'Mara or some
other person is the legal owner of the Disputed Land does not in any way rescind, terminate, alter
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or otherwise change the recorded right-of-way that each of the landowners holds over
Wedgeworth Point.
27. Therefore, bringing in an additional 24 parties would be a waste of judicial time
and resources because the issues in this litigation have no relation to these landowners or their
recorded right-of-way, and therefore the right-of-way holders will not be "inequitably affected
judgment"
by a in the within action. See CPLR § 1001(a) ((McKinney 2020); See Holst v
Liberatore, 115 AD3d 1216 (4th Dept. 2014); Flanagan v. Board of Education, 56 AD2d 574
(2nd Dept. 1977).
28. The Plaintiff s causes of action against Defendants are not to determine his nor
any other person's rights to the private drive, Wedgeworth Point. Plaintiff's right-of-way and
those of the other 24 landowners at Wedgeworth Point have had recorded rights-of-way to
Wedgeworth Point for decades now, and nothing in this action will alter or otherwise affect the
right-of-way in any fashion.
29. Instead, the Plaintiff's cause of action involving Wedgeworth Point is for
damages for trespass by Defendants and for a permanent injunction to prohibit Defendants from
using, accessing or otherwise traversing Wedgeworth Point because they do not have a legal
right-of-way over this private drive.
30. If Defendants are insistent that these additional right-of-way holders be brought
into this litigation, it will most likely be as party plaintiffs to join Plaintiff's cause of action for
trespass against Defendants for their illegal and improper use of the private drive, Wedgeworth
Point, and for permanent injunction preventing Defendants from using, traversing or otherwise
accessing Wedgeworth Point because the Defendants do not have a recorded right-of-way.
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in the additional landowners as plaintiffs will cause unnecessary delay in litigation and
Bringing
will ultimately be of more expense to the Defendants to defend against.
31. Plaintiff therefore requests that the Court deny Defendant's Cross-Motion to
dismiss on the basis that the other landowners of Wedgeworth Point, of which there are
approximately 24 in total, who hold a right-of-way over the private drive, are not necessary
parties to the Plaintiff's action against Defendants Menard and O'Mara.
II. Even if there is a failure to join a necessary party, which is denied, the
appropriate remedy is not dismissal of the Complaint.
32. Case law in New York shows that rather than dismissing the Complaint, the
appropriate remedy on a motion pursuant to CPLR § 3211(a)(10) is to allow Plaintiff time to
amend the Complaint and add the alleged necessary parties. Dime Sav. Bank, FSB v. Johneas,
172 AD2d 1082 (4th Dept. 1991)(The proper remedy for nonjoinder was not to dismiss the
action, the lower court should have directed that the unnamed party be joined as a defendant);
Sorbello v. Birchez Assoc., LLC, 61 AD3d 1225 (3rd Dept. 2009).
33. If this Court determines that the other 24 landowners need to be added as
necessary parties to this action, Plaintiff respectfully requests an Order of this Court granting
Plaintiff sixty (60) days to amend the Complaint to add said parties.
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WHEREFORE, for the foregoing reasons, Plaintiff seeks an Order of this Court (a)
Defendants'
denying Cross-Motion to dismiss in its entirety; and (b) awarding costs and fees
associated with defending said motion; or, in the alternative, (c) allowing Plaintiff 60 days to
amend the Complaint to add any necessary parties as Ordered by this Court; and (c) for such
other, further, and different relief which as this Court deems just and proper.
Dated: August 19, 2021
Syracuse, NY
Enn M. Tyreman, Esq.
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Certification of Word Count Pursuant to Rule 202.8-b(c)
I, Erin M. Tyreman, Esq., attorney for the Plaintiff herein, certify that this Attomey
Affirmation has a total word count, excluding the case caption and signature block, of 1,780. I
further certify to this Court that this Attorney Affirmation's word count complies with the word
count limit of 7,000 as set forth in Rule 202.8-b(a)(i).
Erin M. Tyreman
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FILED: OSWEGO COUNTY CLERK 08/19/2021 02:34 PM INDEX NO. EFC-2021-0742 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/19/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF OSWEGO KYLE R. MILK, ATTORNEY AFFIRMATION Plaintiff, -against- Index No. EFC-2021-0742 DAVID MENARD, JANET O'MARA, JOHN and JANE DOES # 1-10. Defendants. ERIN M. TYREMAN, ESQ., under penalty of perjury, affirms as follows: 1. I am an attorney admitted to practice before the Courts of the State of New York and am associated with the firm of Melvin & Melvin, PLLC, attorneys for the Plaintiff Kyle Milk ("Plaintiff"). 2. This Affirmation is submitted in opposition to Defendant's Cross-Motion to Dismiss pursuant to CPLR § 1001(a) and CPLR § 3211(a)(10). 3. I am fully familiar with all the facts and circumstances stated within this Affirmation. Procedural History 4. The underlying action was commenced by the filing of a Summons and Complaint on May 25, 2021. Defendant served its Answer with Counterclaims on or about July 12, 2021. Plaintiff filed and served its Reply to Counterclaims on July 30, 2021. 5. On July 14, 2021, Defendants served the within Cross-Motion upon Plaintiff's Defendants' counsel. This affirmation is in opposition to Cross-Motion for dismissal. 6. Plaintiff's action was brought before this Court pursuant to Real Property Actions and Proceedings Law Article 15 for a determination of his ownership interest in the Disputed Land 1 of 8 FILED: OSWEGO COUNTY CLERK 08/19/2021 02:34 PM INDEX NO. EFC-2021-0742 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/19/2021 (as defined below) pursuant to the language in his deed, or alternatively, pursuant to Real Property Actions and Proceedings Law Article 5, adverse possession. 7. As set forth in Plaintiff's Complaint, the land at issue is a small parcel of undeveloped property with a private drive (Wedgeworth Point) running through it, located on the shore of Oneida Lake (the "Disputed Land"). The parcel is approximately 50 feet wide. Its eastern edge abuts property owned by Plaintiff and the parcel's western edge abuts property owned by Plaintiff's in-laws, the Guertins (non-parties). On its southern edge, the parcel abuts the shore of Oneida Lake and on its northern edge, the parcel abuts land owned by Defendants Menard and O'Mara. Statement of Facts 8. The description of the land owned by Plaintiff is set forth in his deed as follows: "ALL that tract or parcel of land, situate in the Town of West Monroe, County of Oswego and State of New York, described as follows: Being Lots Nos. 12 and 13 of the Harbor Farms Cottage Lots, said Lots being an extension of Lots Nos. 1 and 11 extending easterly along the shore of Oneida Lake together with a Right of Way over the driveway adjacent to said premises which leads to the highway. With any strips or gores related to this premises. Being the same premises conveyed to James E. Tyrrell and Sharon L. Tyrrell by Deed dated August 30, 1989 and recorded in the Oswego County Clerk's Office on September 5, 1989 in Book 1095 of Deeds at Page 270, said James E. Tyrrell 24th having died on the day of July, 2011 leaving said Sharon L. Tyrrell surviving tenant by the entirety and sole owner of said premises. Subject to easements, covenants and any." restrictions of record, if See Exhibit A. 9. As set forth in the Complaint, Plaintiff is one of several landowners located at Lake.1 Wedgeworth Point along the shore of Oneida 10. As can be seen from his own deed description, Plaintiff, like many other homeowners in the Wedgeworth Point area hold a right-of-way over Wedgeworth Point, a private drive, for access to the highway. I It is irnportant to note that the subject Disputed Land is located on Oneida Lake, and not Ontario Lake as referenced in Defendant's Cross-Motion. 2 2 of 8 FILED: OSWEGO COUNTY CLERK 08/19/2021 02:34 PM INDEX NO. EFC-2021-0742 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/19/2021 11. Wedgeworth Point is not a public road and is not intended for public use. 12. Wedgeworth Point is not owned by the Town of West Monroe and the Town does not maintain the road. 13. Wedgeworth Point is a private drive intended for use only by those residents living at Wedgeworth Point for access to their property from the highway. 14. In 2014, the property owners at Wedgeworth Point made a Right-of-Way agreement concerning the upkeep and maintenance of Wedgeworth Point. 15. This agreement was not entered into by all landowners with a right-of-way over Wedgeworth Point; however, a mere desire not to enter into a maintenance agreement does not landowners' mean that the interest in the road is somehow diminished. The right-of-way over Wedgeworth Point has been recorded in the deeds of landowners at Wedgeworth Point for the past several decades since Wedgeworth Point is the only way for these landowners to access the public highway. 16. Notably, the Menard/O'Mara deed does not contain a deeded right-of-way over Wedgeworth Point. See Exhibit B. 17. The fact that Defendants Menard and O'Mara do not have a deeded right-of-way over Wedgeworth Point, is indicative evidence that Defendants Menard and O'Mara do not in fact own nor have any legal claim to the Disputed Land, since Wedgeworth Point runs directly through the Disputed Land. 18. Defendants Menard and O'Mara are not parties to the right-of-way agreement because they do not have a deeded and recorded right-of-way over Wedgeworth Point. 19. Defendants Menard and O'Mara do not financially contribute to the upkeep and maintenance of Wedgeworth Point. 3 3 of 8 FILED: OSWEGO COUNTY CLERK 08/19/2021 02:34 PM INDEX NO. EFC-2021-0742 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/19/2021 20. On repeated occasions in January, February, March, and April 2021 Defendants Menard and O'Mara have been trespassing upon Wedgeworth Point to access the back side of their property located at 18 Toad Harbor Road. A_RGUMENT Defendants' I. Plaintiff did not fail to name a necessary or indispensable party and Cross-motion to dismiss must therefore be denied. 21. CPLR § 1001(a) requires persons to be joined as a party "who might be action." inequitably affected by a judgment in the 22. In this matter, there are, upon information and belief, ten parcels to the east of the Plaintiff's parcel that have a right-of-way over the private drive, Wedgeworth Point. Each of their deeds is annexed hereto as Exhibit C. 23. It is asserted that none of the other landowners on Wedgeworth Point as right-of- way holders are necessary and indispensable parties to this action. 24. As can be seen from their deed language, each of these landowners has a recorded right-of-way over Wedgeworth Point. This right-of-way runs with the land and cannot be altered or otherwise changed without written agreement of the right-of- rescinded, terminated, way holder. Furthermore, the right-of-way over Wedgeworth Point is not only a right-of-way by recorded deed, but also one of necessity since this is the only way these landowners can access the public highway. 25. The very purpose of establishing a legal right-of-way and recording it at the County Clerk's office is to reserve a right which cannot and shall not be interfered with. 26. The determination of whether Kyle Milk, David Menard, Janet O'Mara or some other person is the legal owner of the Disputed Land does not in any way rescind, terminate, alter 4 4 of 8 FILED: OSWEGO COUNTY CLERK 08/19/2021 02:34 PM INDEX NO. EFC-2021-0742 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/19/2021 or otherwise change the recorded right-of-way that each of the landowners holds over Wedgeworth Point. 27. Therefore, bringing in an additional 24 parties would be a waste of judicial time and resources because the issues in this litigation have no relation to these landowners or their recorded right-of-way, and therefore the right-of-way holders will not be "inequitably affected judgment" by a in the within action. See CPLR § 1001(a) ((McKinney 2020); See Holst v Liberatore, 115 AD3d 1216 (4th Dept. 2014); Flanagan v. Board of Education, 56 AD2d 574 (2nd Dept. 1977). 28. The Plaintiff s causes of action against Defendants are not to determine his nor any other person's rights to the private drive, Wedgeworth Point. Plaintiff's right-of-way and those of the other 24 landowners at Wedgeworth Point have had recorded rights-of-way to Wedgeworth Point for decades now, and nothing in this action will alter or otherwise affect the right-of-way in any fashion. 29. Instead, the Plaintiff's cause of action involving Wedgeworth Point is for damages for trespass by Defendants and for a permanent injunction to prohibit Defendants from using, accessing or otherwise traversing Wedgeworth Point because they do not have a legal right-of-way over this private drive. 30. If Defendants are insistent that these additional right-of-way holders be brought into this litigation, it will most likely be as party plaintiffs to join Plaintiff's cause of action for trespass against Defendants for their illegal and improper use of the private drive, Wedgeworth Point, and for permanent injunction preventing Defendants from using, traversing or otherwise accessing Wedgeworth Point because the Defendants do not have a recorded right-of-way. 5 5 of 8 FILED: OSWEGO COUNTY CLERK 08/19/2021 02:34 PM INDEX NO. EFC-2021-0742 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/19/2021 in the additional landowners as plaintiffs will cause unnecessary delay in litigation and Bringing will ultimately be of more expense to the Defendants to defend against. 31. Plaintiff therefore requests that the Court deny Defendant's Cross-Motion to dismiss on the basis that the other landowners of Wedgeworth Point, of which there are approximately 24 in total, who hold a right-of-way over the private drive, are not necessary parties to the Plaintiff's action against Defendants Menard and O'Mara. II. Even if there is a failure to join a necessary party, which is denied, the appropriate remedy is not dismissal of the Complaint. 32. Case law in New York shows that rather than dismissing the Complaint, the appropriate remedy on a motion pursuant to CPLR § 3211(a)(10) is to allow Plaintiff time to amend the Complaint and add the alleged necessary parties. Dime Sav. Bank, FSB v. Johneas, 172 AD2d 1082 (4th Dept. 1991)(The proper remedy for nonjoinder was not to dismiss the action, the lower court should have directed that the unnamed party be joined as a defendant); Sorbello v. Birchez Assoc., LLC, 61 AD3d 1225 (3rd Dept. 2009). 33. If this Court determines that the other 24 landowners need to be added as necessary parties to this action, Plaintiff respectfully requests an Order of this Court granting Plaintiff sixty (60) days to amend the Complaint to add said parties. 6 6 of 8 FILED: OSWEGO COUNTY CLERK 08/19/2021 02:34 PM INDEX NO. EFC-2021-0742 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/19/2021 WHEREFORE, for the foregoing reasons, Plaintiff seeks an Order of this Court (a) Defendants' denying Cross-Motion to dismiss in its entirety; and (b) awarding costs and fees associated with defending said motion; or, in the alternative, (c) allowing Plaintiff 60 days to amend the Complaint to add any necessary parties as Ordered by this Court; and (c) for such other, further, and different relief which as this Court deems just and proper. Dated: August 19, 2021 Syracuse, NY Enn M. Tyreman, Esq. 7 7 of 8 FILED: OSWEGO COUNTY CLERK 08/19/2021 02:34 PM INDEX NO. EFC-2021-0742 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 08/19/2021 Certification of Word Count Pursuant to Rule 202.8-b(c) I, Erin M. Tyreman, Esq., attorney for the Plaintiff herein, certify that this Attomey Affirmation has a total word count, excluding the case caption and signature block, of 1,780. I further certify to this Court that this Attorney Affirmation's word count complies with the word count limit of 7,000 as set forth in Rule 202.8-b(a)(i). Erin M. Tyreman 8 8 of 8