Preview
FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF JEFFERSON
WOOD FARMS, LLC,
Plaintiff, MEMORANDUM OF
LAW IN SUPPORT OF
SUMMARY JUDGMENT
v. Index No.: EF2021-00000994
DONNA BOURCY, Individually and as Executrix
of the Last Will & Testament of Wesley Bourcy,
TRACY L. AUBERTINE,
Defendants.
PRELIMINARY STATEMENT
The defendants move for summary judgment dismissing the complaint because the
purported right of first refusal violates the Statute of Frauds, the rule against remote vesting and
is an unreasonable alienation of property. Since the purported right of first refusal is void, the
complaint fails to state a cause of action and must be dismissed.
FACTS
The defense admitted the allegations as to parties and venue, paragraphs 1-5 of the
Complaint, and admitted:
On December 29, 2015 WOOD FARMS, LLC conveyed by Warranty Deed
certain real property in the Town of Cape Vincent to Wesley A. Bourcy, now
deceased. (¶l, Complaint);
Wesley Bourcy died on April 16, 2020 (¶8, Complaint);
SCHWERZMANN & WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700
1 of 8
FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022
By his Last Will & Testament, dated May 28, 2019, Wesley A. Bourcy gave and
devised all real estate owned by him at the time of his death to his wife,
DONNA BOURCY, for her lifetime. (110, Complaint);
The defense also admitted three documents were attached to the Complaint and
referred the documents to the Court for review, namely:
" The Warranty deed from WOOD FARMS, LLC to Wesley A.
Bourcy dated December 29, 2015, with a disputed provision.
(Exhibit A to the Complaint, Doc. No. 2)
" The Last Will & Testament of Wesley A. Bourcy dated May 28,
2019 (Exhibit B to the Complaint, Doc. No. 3);
" The Warranty deed from DONNA BOURCY to TRACY
AUBERTINE dated April 9, 2021. (Exhibit C to the Complaint,
Doc. No.4);
The alleged right of first refusal was contained in the deed dated December 29, 2015
(Doc. No. 2). The last paragraph, while not actually reserving anything, forecasts a future
receipt of a document:
"The grantor is receiving no financial consideration for the
premises conveyed herein but is receiving a right of first
refusal to purchase the premises conveyed herein for the
future balance that may be due Watertown Savings Bank at
transfer."
the time of the
Lyle Wood of WOOD FARMS, LLC testified there had been no purchase agreement
nor contract concerning the transfer to Wesley Bourcy (Page 29-30, Transcript at Caughlin
Affidavit, Exhibit 3) and no separate right of first refusal document was executed by Wesley
Bourcy and delivered to WOOD FARMS, LLC. (Page 41, Transcript at Caughlin Affidavit,
Exhibit 3, hereinafter "Transcript")
SCHWERZMANN & WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700
2 of 8
FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022
"Q. The words in the last paragraph of the schedule A says that the grantor,
Wood Farms, LLC, is receiving a right of first refusal. Is there another document
that is a Right of First Refusal that Wood Farms, LLC received after the deed
was signed?
(Mr. Slye: that is the question. Did you receive another document?)
knowledge."
A. No, not to my (Page 41, Transcript)
Lyle Wood testified Larry Hasseler of the Conboy Firm represented him, formed the
LLC (Page 17, Transcript), prepared the deed and clause in dispute for WOOD FARMS, LLC
(Page 39, Transcript) and represented Wesley Bourcy at the time of the transfer. (Page 42,
Transcript)
Lyle Wood testified the amount to be paid for the property, "the future balance that may
Bank," 37-
be due Watertown Savings would be a declining balance as the Note was paid (Page
38, Transcript) and, if the Note was paid off, WOOD FARMS, LLC would get the improved
parcel for free:
"Q. And you told me that your obligation, Wes, or his estate or an owner,
subject to the right of first refusal, would have to offer it to Wood Farms, and
you could buy it for the remaining balance of the Watertown Savings Bank
obligation?
A. Yes.
Q. Which is decreasing over time?
A. Yes.
Q. But it had been paid off, it was zero.
A. We would have paid zero then.
Q. So you would just get the property?
A. Yes.
Q. Wood Farms, LLC would get the property?
A. Yes.
Q. He put the house on it, he has improved it, and you would get the benefit of
the improvements?
Yes."
A.
As alleged in the Complaint, Wesley Bourcy's testamentary disposition was that his
wife, DONNA BOURCY, have life use of the property and, on her death, to his daughter,
TRACY AUBERTINE. In essence, DONNA BOURCY and TRACY AUBERTINE put into
SCHWERZMANN & WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700
3 of 8
FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022
effect this testamentary disposition by their deed dated April 9, 2021 (Exhibit C to the
Complaint, Doc No. 4). Within a month of the transfer, the Summons and Complaint was filed
to cancel the transfer and direct DONNA BOURCY to comply with the so-called "reservation
Plaintiff."
of a right of first refusal in favor of (¶20, Complaint, Doc. No 1)
I. Standard on a CPLR 3212 Motion for Summary Judgment
The Court's function when considering a motion for summary judgment is issue
20th
finding, not issue determination. Sillman v. Century Fox Film Corp., (3 NY 2d 395[1957])
a motion for summary judgment should not be granted if there is any doubt as to the existence
of a triable issue of fact. Marine Midland Bank N.A. v. Kenney Plumbing. Inc., (125 AD 2d
[4th
969 Dept 1986]). The parties generally agree on the facts and pertinent documents, the
legal question for the Court is, can the Plaintiff enforce the last paragraph of the deed from the
Plaintiff to the late Wesley A. Bourcy where Bourcy did not sign the deed, nor did he sign a
separate written instrument? The answer is no, there is no preemptive right to enforce.
II. The purported right of first refusal violates the Statute of Frauds
charged"
The late Wesley Bourcy is the "party to be concerning the alleged preemptive
right of Wood Farms, LLC to insist on a transfer to it, however, Mr. Bourcy never signed any
writing creating or confirming the right. Without a signed writing from the late Mr. Bourcy,
the purported right of first refusal is void under the Statutes of Frauds (G.O.L. §5-703[2]).
1378[3rd
McCormick v. Bechtol, (68 AD 3d 1376, Dept 2009]), "A right of first refusal is
..."
subject to the statute of frauds
The Third Department affirmed the dismissal of an effort to enforce an option in
[3rd
Solartech Renewables, LLC v. Vitti, (156 AD 3d 995 Dept 2017]).
"Because an option to purchase an interest in real property is in
effect a conditional contract for a future conveyance of land, a
frauds"
contract that creates such an option is within the statute of
SCHWERZMANN & WISE, P.C . " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700
4 of 8
FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022
and must be in writing to be valid. Kaplan v. Lippman, (75 NY 2d
320, 325 [1990])
and observed:
"Defendant is the party to be charged, but she did not put pen to
document."
paper and physically sign any relevant 156 AD 3d at
998
The last paragraph of the Wood Farms, LLC-to-Bourcy deed contemplates a separate
writing or documented right of first refusal, signed by Mr. Bourcy, which the Grantor, Wood
"receiving"
Farms, LLC, would be from him. (Wood Farms, LLC deed, Doc. No. 2) The
"receiving" "reserving"
intentional use of word and not makes a crucial distinction. It is the
difference between getting something from another and keeping something for oneself.
Wood Farms, LLC never got a right from the late Mr. Bourcy, a writing signed by Mr.
Bourcy, to enforce against his property. (Transcript, Page 41) It only expressed the desire to be
refusal."
"receiving a right of first (Wood Farms, LLC deed, Doc. No. 2) While a deed can
contain a right of first refusal, in the form of a properly expressed reservation, it must be signed
by both the Grantor/Optionee and Grantee/Optionor to be effective under the Statute of Frauds.
Rights of first refusal can be expressed in a purchase agreement, signed by both parties
and intended to survive the closing of title, however, Wood Farms, LLC has testified there was
no such signed purchase agreement. (Page 29, Transcript) Martin v. Seeley, (191 AD 3d 1335,
[4th
1337 Dept 2021])
HL The purported right of first refusal is void
under the rule against remote vesting
Even if there were a writing signed by the late Mr. Bourcy, which there is not, the terms
of the purported right of first refusal violate the rule against remote vesting and unreasonably
[4th
restrict the alienation of property. Martinsen v. Camperlino, (81 AD 3d 256, 258
2010])
SCHWERZMANN & WISE, P.C. " P.0, BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700
5 of 8
FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022
The purported right of first refusal may be exercisable, in the view of Wood Farms
LLC, for an infinite period of time. Had the widow, defendant Donna Bourcy, who resided in
the house, not conveyed the parcel to her daughter-in-law, defendant Tracy Aubertine, it could
have stayed in the name of the Estate for years. The will of Wesley Bourcy allows her to rent
the property, encumber it, and use it for her life, and then by operation of law, it passes to the
remainderman Tracy Aubertine (Will of Wesley Bourcy, Doc. No. 3). Either the purported
right, of first refusal, had it been in writing, is measured by the life of Wesley Bourcy, and
[4th
terminated with his death, Gilmore v. Jordan, (132 AD 3d 1379 Dept 2015]), or it violates
the rule against remote vesting. Either way it is not enforceable. Barnes v. Oceanus Nay. Corp.
[2nd
Ltd., (21 AD 3d 975, 955 Dept 20051).
IV. The terms of the purported right of first refusal are
an unreasonable restraint on the alienation of property
Finally, if it were in writing and properly created to vest within 21 years, the actual
terms of the purported right of first refusal are inequitable and unenforceable as an
unreasonable restriction on a property owner and prevents the owner from realizing the benefit
of the property. Mr. Bourcy and his Estate have been paying down the mortgage with
Watertown Savings Bank, decreasing the outstanding balance, while, over time, the value of
the 2 acres and residence is increasing.
If a sale were contemplated for $250,000 dollars with one remaining mortgage payment,
Wood Farms, LLC could snatch the property by paying the one last mortgage payment. The
declining balance payment formula is suspect and against public policy because the property
can be acquired for far below market value, or for no value. As Lyle Wood testified, if the
Watertown Savings Bank loan were paid off, Wood Farms, LLC could simply demand the
SCHWERZMANN & WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700
6 of 8
FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022
property. (Wood Deposition Transcript, Exhibit 3, page 54) ("We would have paid zero then,")
Symphony Space v. Pergola Props., (88 NY 2d 466, 479 [1996])
CONCLUSION
There are no factual issues to be resolved, on the legal question whether the last
paragraph of the Wood Farms, LLC to Bourcy deed can be enforced. For the reasons set forth
above, it can not and the action should be dismissed. .
Dated: April , 2022 _____
Ke th B. Caug lin
Schwerzmann & ise, P.C.
Attorneys for Defendants
220 Sterling Street
Watertown, NY 13601
Telephone: (315) 788-6700
TO: Robert J. Slye, Esq.
Slye Law Offices
Attorneys for Plaintiff
104 Washington Street
Watertown, NY 13601
SCHWERZMANN & WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700
7 of 8
FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994
NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022
Certificate of Compliance
I certify that the number of words in this document, Memorandum of Law in Support of
Summary Judgment contains 1,834 words from caption to signature block. I certify this
document complies with the Rule 202.8-b word count limit of 7,000 words for a moving brief or
affidavit and 4,200 for any reply brief or reply memo.
Keith B. Cau lin
SCHWERZMANN a WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 1360 1 " (3 15) 788-6700
8 of 8
Preview
FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF JEFFERSON WOOD FARMS, LLC, Plaintiff, MEMORANDUM OF LAW IN SUPPORT OF SUMMARY JUDGMENT v. Index No.: EF2021-00000994 DONNA BOURCY, Individually and as Executrix of the Last Will & Testament of Wesley Bourcy, TRACY L. AUBERTINE, Defendants. PRELIMINARY STATEMENT The defendants move for summary judgment dismissing the complaint because the purported right of first refusal violates the Statute of Frauds, the rule against remote vesting and is an unreasonable alienation of property. Since the purported right of first refusal is void, the complaint fails to state a cause of action and must be dismissed. FACTS The defense admitted the allegations as to parties and venue, paragraphs 1-5 of the Complaint, and admitted: On December 29, 2015 WOOD FARMS, LLC conveyed by Warranty Deed certain real property in the Town of Cape Vincent to Wesley A. Bourcy, now deceased. (¶l, Complaint); Wesley Bourcy died on April 16, 2020 (¶8, Complaint); SCHWERZMANN & WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700 1 of 8 FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022 By his Last Will & Testament, dated May 28, 2019, Wesley A. Bourcy gave and devised all real estate owned by him at the time of his death to his wife, DONNA BOURCY, for her lifetime. (110, Complaint); The defense also admitted three documents were attached to the Complaint and referred the documents to the Court for review, namely: " The Warranty deed from WOOD FARMS, LLC to Wesley A. Bourcy dated December 29, 2015, with a disputed provision. (Exhibit A to the Complaint, Doc. No. 2) " The Last Will & Testament of Wesley A. Bourcy dated May 28, 2019 (Exhibit B to the Complaint, Doc. No. 3); " The Warranty deed from DONNA BOURCY to TRACY AUBERTINE dated April 9, 2021. (Exhibit C to the Complaint, Doc. No.4); The alleged right of first refusal was contained in the deed dated December 29, 2015 (Doc. No. 2). The last paragraph, while not actually reserving anything, forecasts a future receipt of a document: "The grantor is receiving no financial consideration for the premises conveyed herein but is receiving a right of first refusal to purchase the premises conveyed herein for the future balance that may be due Watertown Savings Bank at transfer." the time of the Lyle Wood of WOOD FARMS, LLC testified there had been no purchase agreement nor contract concerning the transfer to Wesley Bourcy (Page 29-30, Transcript at Caughlin Affidavit, Exhibit 3) and no separate right of first refusal document was executed by Wesley Bourcy and delivered to WOOD FARMS, LLC. (Page 41, Transcript at Caughlin Affidavit, Exhibit 3, hereinafter "Transcript") SCHWERZMANN & WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700 2 of 8 FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022 "Q. The words in the last paragraph of the schedule A says that the grantor, Wood Farms, LLC, is receiving a right of first refusal. Is there another document that is a Right of First Refusal that Wood Farms, LLC received after the deed was signed? (Mr. Slye: that is the question. Did you receive another document?) knowledge." A. No, not to my (Page 41, Transcript) Lyle Wood testified Larry Hasseler of the Conboy Firm represented him, formed the LLC (Page 17, Transcript), prepared the deed and clause in dispute for WOOD FARMS, LLC (Page 39, Transcript) and represented Wesley Bourcy at the time of the transfer. (Page 42, Transcript) Lyle Wood testified the amount to be paid for the property, "the future balance that may Bank," 37- be due Watertown Savings would be a declining balance as the Note was paid (Page 38, Transcript) and, if the Note was paid off, WOOD FARMS, LLC would get the improved parcel for free: "Q. And you told me that your obligation, Wes, or his estate or an owner, subject to the right of first refusal, would have to offer it to Wood Farms, and you could buy it for the remaining balance of the Watertown Savings Bank obligation? A. Yes. Q. Which is decreasing over time? A. Yes. Q. But it had been paid off, it was zero. A. We would have paid zero then. Q. So you would just get the property? A. Yes. Q. Wood Farms, LLC would get the property? A. Yes. Q. He put the house on it, he has improved it, and you would get the benefit of the improvements? Yes." A. As alleged in the Complaint, Wesley Bourcy's testamentary disposition was that his wife, DONNA BOURCY, have life use of the property and, on her death, to his daughter, TRACY AUBERTINE. In essence, DONNA BOURCY and TRACY AUBERTINE put into SCHWERZMANN & WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700 3 of 8 FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022 effect this testamentary disposition by their deed dated April 9, 2021 (Exhibit C to the Complaint, Doc No. 4). Within a month of the transfer, the Summons and Complaint was filed to cancel the transfer and direct DONNA BOURCY to comply with the so-called "reservation Plaintiff." of a right of first refusal in favor of (¶20, Complaint, Doc. No 1) I. Standard on a CPLR 3212 Motion for Summary Judgment The Court's function when considering a motion for summary judgment is issue 20th finding, not issue determination. Sillman v. Century Fox Film Corp., (3 NY 2d 395[1957]) a motion for summary judgment should not be granted if there is any doubt as to the existence of a triable issue of fact. Marine Midland Bank N.A. v. Kenney Plumbing. Inc., (125 AD 2d [4th 969 Dept 1986]). The parties generally agree on the facts and pertinent documents, the legal question for the Court is, can the Plaintiff enforce the last paragraph of the deed from the Plaintiff to the late Wesley A. Bourcy where Bourcy did not sign the deed, nor did he sign a separate written instrument? The answer is no, there is no preemptive right to enforce. II. The purported right of first refusal violates the Statute of Frauds charged" The late Wesley Bourcy is the "party to be concerning the alleged preemptive right of Wood Farms, LLC to insist on a transfer to it, however, Mr. Bourcy never signed any writing creating or confirming the right. Without a signed writing from the late Mr. Bourcy, the purported right of first refusal is void under the Statutes of Frauds (G.O.L. §5-703[2]). 1378[3rd McCormick v. Bechtol, (68 AD 3d 1376, Dept 2009]), "A right of first refusal is ..." subject to the statute of frauds The Third Department affirmed the dismissal of an effort to enforce an option in [3rd Solartech Renewables, LLC v. Vitti, (156 AD 3d 995 Dept 2017]). "Because an option to purchase an interest in real property is in effect a conditional contract for a future conveyance of land, a frauds" contract that creates such an option is within the statute of SCHWERZMANN & WISE, P.C . " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700 4 of 8 FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022 and must be in writing to be valid. Kaplan v. Lippman, (75 NY 2d 320, 325 [1990]) and observed: "Defendant is the party to be charged, but she did not put pen to document." paper and physically sign any relevant 156 AD 3d at 998 The last paragraph of the Wood Farms, LLC-to-Bourcy deed contemplates a separate writing or documented right of first refusal, signed by Mr. Bourcy, which the Grantor, Wood "receiving" Farms, LLC, would be from him. (Wood Farms, LLC deed, Doc. No. 2) The "receiving" "reserving" intentional use of word and not makes a crucial distinction. It is the difference between getting something from another and keeping something for oneself. Wood Farms, LLC never got a right from the late Mr. Bourcy, a writing signed by Mr. Bourcy, to enforce against his property. (Transcript, Page 41) It only expressed the desire to be refusal." "receiving a right of first (Wood Farms, LLC deed, Doc. No. 2) While a deed can contain a right of first refusal, in the form of a properly expressed reservation, it must be signed by both the Grantor/Optionee and Grantee/Optionor to be effective under the Statute of Frauds. Rights of first refusal can be expressed in a purchase agreement, signed by both parties and intended to survive the closing of title, however, Wood Farms, LLC has testified there was no such signed purchase agreement. (Page 29, Transcript) Martin v. Seeley, (191 AD 3d 1335, [4th 1337 Dept 2021]) HL The purported right of first refusal is void under the rule against remote vesting Even if there were a writing signed by the late Mr. Bourcy, which there is not, the terms of the purported right of first refusal violate the rule against remote vesting and unreasonably [4th restrict the alienation of property. Martinsen v. Camperlino, (81 AD 3d 256, 258 2010]) SCHWERZMANN & WISE, P.C. " P.0, BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700 5 of 8 FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022 The purported right of first refusal may be exercisable, in the view of Wood Farms LLC, for an infinite period of time. Had the widow, defendant Donna Bourcy, who resided in the house, not conveyed the parcel to her daughter-in-law, defendant Tracy Aubertine, it could have stayed in the name of the Estate for years. The will of Wesley Bourcy allows her to rent the property, encumber it, and use it for her life, and then by operation of law, it passes to the remainderman Tracy Aubertine (Will of Wesley Bourcy, Doc. No. 3). Either the purported right, of first refusal, had it been in writing, is measured by the life of Wesley Bourcy, and [4th terminated with his death, Gilmore v. Jordan, (132 AD 3d 1379 Dept 2015]), or it violates the rule against remote vesting. Either way it is not enforceable. Barnes v. Oceanus Nay. Corp. [2nd Ltd., (21 AD 3d 975, 955 Dept 20051). IV. The terms of the purported right of first refusal are an unreasonable restraint on the alienation of property Finally, if it were in writing and properly created to vest within 21 years, the actual terms of the purported right of first refusal are inequitable and unenforceable as an unreasonable restriction on a property owner and prevents the owner from realizing the benefit of the property. Mr. Bourcy and his Estate have been paying down the mortgage with Watertown Savings Bank, decreasing the outstanding balance, while, over time, the value of the 2 acres and residence is increasing. If a sale were contemplated for $250,000 dollars with one remaining mortgage payment, Wood Farms, LLC could snatch the property by paying the one last mortgage payment. The declining balance payment formula is suspect and against public policy because the property can be acquired for far below market value, or for no value. As Lyle Wood testified, if the Watertown Savings Bank loan were paid off, Wood Farms, LLC could simply demand the SCHWERZMANN & WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700 6 of 8 FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022 property. (Wood Deposition Transcript, Exhibit 3, page 54) ("We would have paid zero then,") Symphony Space v. Pergola Props., (88 NY 2d 466, 479 [1996]) CONCLUSION There are no factual issues to be resolved, on the legal question whether the last paragraph of the Wood Farms, LLC to Bourcy deed can be enforced. For the reasons set forth above, it can not and the action should be dismissed. . Dated: April , 2022 _____ Ke th B. Caug lin Schwerzmann & ise, P.C. Attorneys for Defendants 220 Sterling Street Watertown, NY 13601 Telephone: (315) 788-6700 TO: Robert J. Slye, Esq. Slye Law Offices Attorneys for Plaintiff 104 Washington Street Watertown, NY 13601 SCHWERZMANN & WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 13601 " (315) 788-6700 7 of 8 FILED: JEFFERSON COUNTY CLERK 04/20/2022 09:30 AM INDEX NO. EF2021-00000994 NYSCEF DOC. NO. 16 RECEIVED NYSCEF: 04/20/2022 Certificate of Compliance I certify that the number of words in this document, Memorandum of Law in Support of Summary Judgment contains 1,834 words from caption to signature block. I certify this document complies with the Rule 202.8-b word count limit of 7,000 words for a moving brief or affidavit and 4,200 for any reply brief or reply memo. Keith B. Cau lin SCHWERZMANN a WISE, P.C. " P.O. BOX 704 " 220 STERLING STREET " WATERTOWN, NEW YORK 1360 1 " (3 15) 788-6700 8 of 8