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FILED: FRANKLIN COUNTY CLERK 07/19/2023 04:28 PM INDEX NO. E2021-453
NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 07/19/2023
EXHIBIT 2
INDEX NO. E2021-453
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/28/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF FRANKLIN
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RINGOLD REALTY, INC.,
Plaintiff, ANSWER WITH
COUNTERCLAIMS
- against -
Index No. E2021-453
ROGER J. AMELL and
AMELL LOGGING, INC.,
Defendants.
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Defendants Roger J. Amell and Amel] Logging, Inc., by counsel, answering the allegations
in plaintiff's complaint, respectfully state and allege:
1 Answering the conclusory and improper multiple allegations in paragraph 1 of the
complaint, defendants admit that defendant Roger J. Amell (hereinafter “Amell”) did in the year
2020 lawfully and appropriately exercise his vested easement rights to use and widen the road he had
constructed in the years 1985-86 with the consent of the then owners of Lots 35 and 34 and his co-
owners of the 50' easement right of way because the then existing road had become overgrown by
the growth of foliage over the intervening years, his purpose being to provide road access to the Lot
39 property owned by defendant Roger J. Amell since May 11, 1983, all pursuant to and as
authorized by the rights in his deed recorded in the Franklin County Clerk’s Office at Book 511 at
Page 483, and prior instruments of record such as in Liber 330 at Page 341, all such documents
LAW OFFICE OF - JAMES M. BROOKS — 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946
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providing for the residential development of the “Barbour 4000 acre tract”, said access right-of-way
rights being appurtenances and also express easements and rights of defendant Amell, and Amell
also admits he did erect a security gate in accordance with his rights as one of the dominant owners
of the said appurtenances and easements rights on the said easement right-of-way off the Bartlett
Carry Road near Upper Saranac lake, and except as so admitted defendants deny each and all other
allegations and claims of absence of rights or wrongful acts of defendants and deny all claims of
alleged damages as claimed in paragraph 1 of the complaint.
2 Deny knowledge or information sufficient to form a belief as to the truth of the
allegations n paragraphs 2, 9, 10, 11, 14, 17 and 18 of the complaint, and therefore deny the same.
3. Admit each and every allegation in paragraphs 3, 4, 5, 6, 7, 8 and 21 of the complaint.
4 Answering the allegations in paragraph 12 of plaintiffs complaint, defendants
affirmatively deny that defendant Amell Logging, Inc. is an owner of Lot 39 as alleged, and admit
that Lot 39 is immediately adjacent to the easterly bounds of Lot 38 as depicted on Map No. 885
annexed to the plaintiffs complaint as Exhibit C, and except as so admitted, defendants deny
knowledge or information sufficient to form a belief as to the truth of all other allegations in
paragraph 12 of the complaint, and therefore dery the same.
5 Deny each and every allegation in paragraphs 13, 15, 16, 19, 20, 22, 23, 24, 25 and 28
of the complaint.
6. Answering the allegations in paragraph 26 of plaintiffs complaint, defendants admit that
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defendant Amell erected a gate to control non-owners or unauthorized persons accessing the remote
properties in the Pork Bay Subdivision by usage of the ingress and egress road he had improved,
particularly to Amell’s Lot 39, and except as herein admitted, defendants deny each and every other
allegation in paragraph 26 not hereinabove admitted.
7 Answering the allegations in paragraph 27, defendants admit that plaintiff and his
attorney made written demands on defendant Roger J. Amell, copies being the correspondence dated
February 3, 2021 and March 23, 2021 annexed to the complaint as Exhibit E, and except as so
admitted, defendants deny each and every other allegation in paragraph 27 not hereinabove admitted.
8 Answering the allegations in paragraph 29, defendants admit that the roadway and the
gate remain in place to date, and except as so admitted, defendants deny each and every other
allegation in paragraph 29, not hereinabove admitted.
9. Answering the allegations in paragraph 30 of the complaint, repeat and reallege each and
every admission and denial contained in paragraphs 1 through 8, inclusive, of this answer with the
same force and effect as though herein set forth enew.
10. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 31 of the complaint, and therefore deny the same.
11. Deny each and every allegation in paragraphs 32, 33, 35, 36, 37 and 38 of the complaint.
12. Answering the allegations in paragraph 34 of the complaint, admit that defendant Roger
J. Amell has and continues to claim his vested property rights on and over the roadway and claims
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his rights and interests therein across Lots 35 and 34 as are asserted in paragraph | and elsewhere
in this answer, and except as so admitted, defendants deny cach and every other allegation in
paragraph 34 not hereinabove admitted.
13. Answering the allegations in paragraph 39 of the complaint, repeat and reallege each
and every admission and denial contained in paragraphs 1 through 12, inclusive, of this answer with
the same force and effect as though herein set forth anew.
14. Answering the allegations in paragraph 40 of the complaint, defendants admit that by
constructing, using and occupying the roadway across Lots 35 and 34 and over the 50' easement way
defendant Amell claim an interest in that real property adverse to plaintiff, and except as so admitted,
defendants deny each and every other allegation in paragraph 40 of the complaint not hereinabove
admitted.
15. Deny each and every allegation in 2aragraphs 41 and 45 of the complaint.
16. Answering the allegations in paragraph 42 of the complaint, defendants admit Roger
J. Amell claims an easement by written documents and by other means of rights in, on and to
portions of the plaintiff's property in Lots 35 and 34 for the reasons stated elsewhere in this answer,
and, except as admitted, answering defendants deny knowledge or information sufficient to form a
belief as to the truth of all other allegations not so admitted, and therefore deny the same.
17. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraphs 43 and 44 of the complaint, and therefore deny the same.
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18. Answering the allegations in paragraph 46 of the complaint, repeat and reallege each
and every admission and denial contained in paragraphs 1 through 17, inclusive, of this answer with
the same force and effect as though herein set forth anew.
19. Answering the allegations in paragraph 47 of the complaint, admit that defendant Roger
J. Amell did his construction work in 1985-86 and in 2020 on the roadway as a matter ofclaimed
right, and except as so admitted, answering defendants deny each and every other allegation in
paragraph 47 of the complaint not hereinabove admitted.
20. Deny each and every allegation in paragraphs 48, 50 and 51 of the complaint.
21; Answering the allegations in paragraph 49 of the complaint, defendants admit that the
materials used in the construction work remain in place, and except as admitted, defendants deny
each and every other allegation in paragraph 49 of the complaint not hereinabove admitted.
22. Answering the allegations in paragraph 52 of the complaint, repeat and reallege cach
and every admission and denial contained in paragraphs 1 through 21, inclusive, of this answer with
the same force and effect as though herein set forth anew.
23, Deny each and every allegation in paragraphs 53, 54, 55, 56 and 57 of the complaint.
24. Answering the allegations in paragraph 58 of the complaint, repeat and reallege each
and every admission and denial contained in paragraphs | through 23, inclusive, of this answer with
the same force and effect as though herein set forth anew.
25. Deny each and every allegation in paragraphs 59, 61, 63, 65, 66 and 67 of the
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complaint.
26. Deny knowledge or information sufficient to form a belief of the truth of the
allegations in paragraphs 60, 62 and 64 of the complaint, and therefore deny the same.
2s Deny cach and every other allegation in said complaint not hereinabove specifically
admitted or otherwise denied.
FOR A FIRST AFFIRMATIVE DEFENSE:
28. The complaint fails to state any cause of action against defendant Amell Logging, Inc.
and the complaint against said defendant should be dismissed.
FOR A SECOND AFFIRMATIVE DEFENSE:
29. Upon information and belief, one or all of plaintiffs causes of action are barred by
documentary evidence and said causes of action should be dismissed.
FOR A THIRD AFFIRMATIVE DEFENSE:
30. As to all causes of action alleging damages within the scope and intendment of RPAP
§861(I) involving acts pertaining to the cutting of trees or timber and/or the damaging of lands
thereof, defendants herein affirmatively assert that they believed that at the time of such acts they
had vested property rights based on valid easement rights and rights of way on and across the lands
claimed injured and damaged by plaintiff in Lots 35 and 34 which rights of Amell permitted such
actions by defendants, including the right to reopen and improve and complete the right of way
access to the land of defendant Roger J. Amell known as Lot 39.
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FOR A FOURTH AFFIRMATIVE DEFENSE:
31. As to all causes of action alleging damages to the 50' right of way property and
involving defendants work on said easement way, defendants herein affirmatively assert that they
believed that at the time of such acts they had vested rights pursuant to the aforesaid easements to
cause and make such improvements to the road, and to improve the casement way for the benefit of
an access to the Lot 39 property of defendant Roger J. Amell.
FOR A FIFTH AFFIRMATIVE DEFENSE:
32. All claims or causes of action asserted by plaintiff in each of its causes of action that
contend that defendant Amell has no property rights or interests in the roadway sections of the
easements providing ingress and egress to Lot 39 on and over Lots 35 and 34 and the 50' easement
way are barred by the applicable statute of limitations made and provided by CPLR Article 2 and
should be dismissed.
FOR A SIXTH AFFIRMATIVE DEFENSE:
33. Plaintiffs second cause of action under and pursuant to RPAP Law Article 15 fails to
comply with the requirements of law and should be dismissed..
FOR A FIRST COUNTERCLAIM BY DEFENDANT
ROGER J. AMELL AGAINST PLAINTIFF:
34. Counterclaiming defendant Roger J. Amell repeats and realleges and incorporates
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herein by reference each of the allegations in paragraph 3, 5, 6, 7 and 8 and exhibits A and C in
plaintiff's complaint with the same force and effect as if all of said allegations and exhibits were set
forth and made a part hereat in detail.
35. Upon information and belief, plaintiff Ringold Realty, Inc. claims and may well be the
owner of properties and easements described in a deed recorded in the Office of the Franklin County
Clerk on January 19, 2000 at Liber 741 at page 268.
36. Upon information and belief, both the real property titles and the property rights of the
defendant Roger J. Amell and of plaintiff Ringold Realty, Inc. are derived from their common
grantors of the so-called Barbour Tract of 4000 Acres in Township No. 23 of Macomb’s Purchase,
Great Tract No. 1, and their said properties are beneficiaries of the rights and benefits vested in said
premises, including the Mutual Covenants and Easement Rights sct forth in the written document
made January 12, 1953 and recorded on May 25, 1953 in Liber 330 of Deeds at Page 541, same
being incorporated herein by reference and made a part hereof, and hereinafter referred to as the
“1953 Covenants”.
37. Upon information and belief, amongst other provisions and rights made and established
in and by the said 1953 Covenants, and vested and granted to all owners of parcels such as
defendant Roger J. Amell as owner of Lot 39, were the following rights:
“The grantor reserves unto himself, his heirs and assigns the right
to relocate said roadway or any portion thereof at his own proper
cost and expense provided that the grantees shall at all times be afforded
aright of way permitting equally suitable and convenient access as to
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width, condition and direction to their respective properties across the
lands of the grantor, and provided further that the said grantees shall have
the same rights, privileges and obligations in the use of said relocated
roadway as covenanted and agreed herein.
The grants, covenants and stipulations hereof shall extend to and be
binding upon the respective successors, heirs and assigns of all the
parties hereto.”
38. In the year 1985 counterclaiming plaintiff Amell as the then owner of Lot 39, and the
then owners of Lots 34, 35, 36, 37, 38 and 40, the prior owners of the Lots now claimed to be owned
by counterclaimed defendant Ringold Realty, Inc. agreed that for the mutual benefit and advantage
of all Lots 34-40, Amell was to construct, establish and relocate a portion of the designated but not
constructed 50! access easement right of way that was then not usable for access by vehicles to Lots
34-39 so as to provide future vehicle access for all Lot 34-39 owners; Amell agreed to do so by use
of portions of Lots 35 and 34 in consideration ofit providing vehicle access to his Lot 39, he being
an experienced and competent road builder as part of his past work experience; not only did Amell
so construct and operate the equipment in 1985-86 to establish the portions of the easement that
crosses over portions of Lots 35 and 34, but many of the then owncrs of those Lots 34, 35, 36, 37,
38 and 40 assisted Amell throughout the years 1985-86 in the performance of such work as it also
benefitted in the development of their property rights, and the fill that was used for constructing
said relocated section of the right of way access came from the soils on their Lot 40 as a further
benefit to those prior Lot owners, removal allowing for the improvement of Lot 40 by leveling the
surface thereof for its now vehicle parking area.
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39. In the year 2020 defendant Amell decided it was time for him to market and sell Lot
39; to make the property more marketable Amell decided to clear out the accumulated foliage that
had grown up in the section of the 1985-86 relocated access and egress easement area over Lots 35
and 34 and to further improve, clear and open up the remainder of the 50' wide designated but
unimproved easement right of way from his Lot 39 westerly boundary to the junction or the
connection of said road at the southerly borders of Lot 34/35 and did so in 2020 at his sole cost and
expense, he also erecting a gate near and across that same junction so as to impede access by
strangers or trespassers intent on entering onto his Lot 39, or damaging the then road he had just
improved, said gate not being a locked gate but only kept closed by a hook that was easily unhooked
so the other owners of adjoining benefitted lots could access and use the improved easement of way
by motor vehicles to their individual Lots.
40. Prior to the sole owner of plaintiffs corporation making its purported purchase of Lots
34, 35, 36, 37, 38 and 40 in 1999 he was personally made aware and had actual notice and
knowledge of the existence and location of the relocated and improved section of the ingress and
egress road on and over Lots 35 and 34, and had further notice and knowledge that the designated
50' easement of way to the west bounds of Lot 39 was not improved or even made passable by motor
vehicles, even though it was then the only paper drawn easement of way for access to the Lots east
of Lot 40.
41. The Easement of way as described above and as existing as of 1985-86 constituted
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Amell’s sole means of vehicle access to his Lot 49 but was unimproved from Lots 34 and 35 to Lot
39 so only by foot or by snowmobile was access possible..
42. The use of that partially improved casement of way by Amell has been continuous for
a period of time greater than 30 years from the date of commencement of this action by plaintiff
Ringold Realty, Inc.
43. Plaintiffs complaint proclaims that Amell has no legal interest in or right to access his
Lot 39 or to utilize the easement of way he opened and improved in 1985-86 and 2020.
44, Plaintiff has no valid and enforceable legal or equitable grounds to oppose or object to
the location and construction means of the improved easement of way or to Amell’s use of, interest
in, or rights to the easement of way as now exists as a result of and after his labors of 1985-86 and
in 2020..
45. Amell has demanded that plaintiffacknowledge the existence and legality of the existing
easement of way and that the easement and the gate placement and existence benefits the premises
and rights of all owners, including Amell as owner of Lot 39.
46. Despite Amell’s demands as stated in paragraph 45 above, Plaintiff has failed and
refused to acknowledge the existence and validity of Amell’s casement rights and the right and
benefits of Amell to erect and maintain the gate..
47. This counterclaim is commenced and being prosecuted pursuant to Article 15 of the
Real Property Actions and Proceedings Law to determine the parties claims to real property and real
1
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property rights.
48. Plaintiff claims or may claim to have, or it appears by the public record that it may
claim some estate or interest adverse to Amell’s real property easement rights and interests and
otherwise be adverse to that of Amell as owner of Lot 39 in that it claims Amell has no lawful
easement or right-of-way capable for vehicle access that benefits Amell’s Lot 39 premises, all as
herein alleged by counterclaiming plaintiff Amell in this first counterclaim.
49. All plaintiff's or defendants are known and are parties to this action, and none are
infants or mentally retarded or, upon information and belief, mentally ill or alcohol or drug abusers.
50. Any judgment granted herein will not affect any person or persons not in being or
ascertained at the commencement of this action, who by any contingency contained in a devise or
grant or otherwise, could afterward become entitled to a beneficial estate or interest in the aforesaid
premises.
SL. Every person in being who would have been entitled to such estate or interest, if such
event had happened immediately before the commencement of the action, is named as a party to this
action.
52. No personal claim is made against any plaintiff except such as may defend against this
counterclaim.
53. The easement rights of Amell in and over the portions of plaintiff's Lots 35 and 34 and
over the 50' wide easement area from the west boundary line of Lot 39 to its junction with the road
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section constructed by Amell in 1985-86 as above stated was and remains valid and enforecable and
a burden on those used parts of plaintiff's Lots 35 and 34 by application of Amell’s express rights
granted by the 1953 Covenants document, the 1983 deed into Amell (plaintiffexhibit A), the mutual
consents and exercise of such casement rights by Amell as above stated by Amell in 1985-86 and
2020 and by the real property laws of the State of New York in such cases as is made and provided.
54. Plaintiff took title to its Lots in 1999 with notice, record notice, inquiry notice and/or
constructive notice of the aforesaid casement rights and of the interests and claims of Amell as owner
of Lot 39.
55. In the light of the claims in the complaint of plaintiff, counterclaiming plaintiffis left
with no recourse other than to request the Court determine and declare the respective rights and
obligations of the parties with regard to the easement rights of Amell against, on and over those
portions of Lots 35 and 34 of counterclaimed defendant Ringold Realty, Inc. and on and over the
now improved 50' casement way to the west bounds of Lot 39.
56. Counterclaiming plaintiff Amell is entitled to and demands judgment declaring that the
easement rights he asserts in this counterclaim are lawful and valid easement and right-of-way
appurtenant rights to and for the benefit of the premises of Amell’s Lot 39 and burden plaintif? s
property Lots 35 and 34, and that Amell’s Lot 39 is benefitted from, and is the dominant owner of
such easements, and has the legal right to access and utilize the said improved and opened easements
of way to his Lot 39 by foot, motorized vehicles and non-motorized vehicles, together with an award
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for his costs and disbursements, and for such other and further relief as the Court deems just and
proper.
FOR A SECOND COUNTERCLAIM BY DEFENDANT
ROGER J. AMELL AGAINST PLAINTIFF:
57. Counterclaiming plaintiff Amell repeats and realleges each and all of the allegations
and exhibits set forth in paragraphs 34 through 56 above as if more fully set forth herein.
58. Counterclaiming plaintiff Amell does not have an adequate remedy at law.
595 Counterclaiming plaintiff Amell is entitled to seek and demand a judgment
preliminarily and permanently enjoining Plaintiff from obstructing, impeding, preventing or
impairing Amell’s free rights of ingress and egress to his Lot 39 and the use of the aforesaid
easements of way without interruption or disturbance, together with an award for his costs and
disbursements, and such other and further relief as to the Court seems just and proper.
FOR A THIRD COUNTERCLAIM BY DEFENDANT
ROGER J. AMELL AGAINST PLAINTIFF:
60. Counterclaiming plaintiff Amell repeats and realleges each and all of the allegations
and exhibits set forth in paragraphs 34 through 56 above as if more fully set forth herein.
61. Since on or about February 3%, 2021 and to the date hereof, and into the future until
Amell’s easement rights are restored, Ringold Realty, Inc. has wrongly, intentionally and without
just cause or right, installed, placed and maintains a lock and chain on the security gate described
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and identified in plaintiffs complaint and by this answer, completely barring and precluding Amell’s
motor vehicle access, use and enjoyment of access and to his use and enjoyment of his easement
rights and of his Lot 39 property.
62. In addition to the loss of use and enjoyment of the easement and property rights
suffered by Amell as aforesaid, Amell has been deprived of the opportunity and the right to
effectively market his Lot 39 by reason of the locked gate and his being barred access with
prospective purchasers that are not able to be conveniently shown the property and its betterments
and lakeshore assets by vehicle access, all to the injury and damage of Amell, particularly in the
prevailing superior sellers market now prevailing in Northern New York, and particularly for
properties located on the shore of Upper Saranac lake.
63. Amell’s damages and losses are of such amount that they are in excess of the
jurisdictional limits of all courts of this State, except for the limits of this court.
64. Amell’s own loss of use and his loss of the right to effectively and appropriately market
to convey by sale his Lot 39 to another are damages amounts to be determined at trial, but are not
less than the reasonable sum of $100,000.00.
WHEREFORE, defendants demand an Order and Judgment:
1 Dismissing plaintiffs complaint and awarding defendants their costs and disbursements;
and
2. Declaring and adjudging that defendant/counterclaiming plaintiff Roger J. Amell is
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vested with and has a permanent easement of way on and over the Lots 35 and 34 of Ringold Realty,
Inc. and the 50' easement of way to the west bounds of Lot 39 as prayed for in the first counterclaim
of this action, and that the gate erected and placed by counterclaiming plaintiff Amell is lawful and
proper and entitled to remain in place, but in an unlocked status with means being opened to allow
for access by key or code being provided to all Lot owners necding access to their Lots via said
easement of way; and
a
3 Judgment in money damages in a sum not less than $100,000.00 in favor of
counterclaiming plaintiff Roger J. Amell against Ringold Realty, Inc., together with Amell’s costs
and disbursements and interest as allowed by law ; and
4. Such other and further relief as is just, proper and equitable as determined by the Court.
Dated: July 28, 2021
Law Office of James M. Brooks
By.
Preview
FILED: FRANKLIN COUNTY CLERK 07/19/2023 04:28 PM INDEX NO. E2021-453 NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 07/19/2023 EXHIBIT 2 INDEX NO. E2021-453 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/28/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF FRANKLIN wetter eee eee RINGOLD REALTY, INC., Plaintiff, ANSWER WITH COUNTERCLAIMS - against - Index No. E2021-453 ROGER J. AMELL and AMELL LOGGING, INC., Defendants. wanna nanan nnn nnn nnn eee eee eee, fat Defendants Roger J. Amell and Amel] Logging, Inc., by counsel, answering the allegations in plaintiff's complaint, respectfully state and allege: 1 Answering the conclusory and improper multiple allegations in paragraph 1 of the complaint, defendants admit that defendant Roger J. Amell (hereinafter “Amell”) did in the year 2020 lawfully and appropriately exercise his vested easement rights to use and widen the road he had constructed in the years 1985-86 with the consent of the then owners of Lots 35 and 34 and his co- owners of the 50' easement right of way because the then existing road had become overgrown by the growth of foliage over the intervening years, his purpose being to provide road access to the Lot 39 property owned by defendant Roger J. Amell since May 11, 1983, all pursuant to and as authorized by the rights in his deed recorded in the Franklin County Clerk’s Office at Book 511 at Page 483, and prior instruments of record such as in Liber 330 at Page 341, all such documents LAW OFFICE OF - JAMES M. BROOKS — 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946 1 of 17 INDEX NO. 2021-453 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: @7/28/2023 providing for the residential development of the “Barbour 4000 acre tract”, said access right-of-way rights being appurtenances and also express easements and rights of defendant Amell, and Amell also admits he did erect a security gate in accordance with his rights as one of the dominant owners of the said appurtenances and easements rights on the said easement right-of-way off the Bartlett Carry Road near Upper Saranac lake, and except as so admitted defendants deny each and all other allegations and claims of absence of rights or wrongful acts of defendants and deny all claims of alleged damages as claimed in paragraph 1 of the complaint. 2 Deny knowledge or information sufficient to form a belief as to the truth of the allegations n paragraphs 2, 9, 10, 11, 14, 17 and 18 of the complaint, and therefore deny the same. 3. Admit each and every allegation in paragraphs 3, 4, 5, 6, 7, 8 and 21 of the complaint. 4 Answering the allegations in paragraph 12 of plaintiffs complaint, defendants affirmatively deny that defendant Amell Logging, Inc. is an owner of Lot 39 as alleged, and admit that Lot 39 is immediately adjacent to the easterly bounds of Lot 38 as depicted on Map No. 885 annexed to the plaintiffs complaint as Exhibit C, and except as so admitted, defendants deny knowledge or information sufficient to form a belief as to the truth of all other allegations in paragraph 12 of the complaint, and therefore dery the same. 5 Deny each and every allegation in paragraphs 13, 15, 16, 19, 20, 22, 23, 24, 25 and 28 of the complaint. 6. Answering the allegations in paragraph 26 of plaintiffs complaint, defendants admit that LAW OFFICE OF - JAMES M. BROOKS -~ 72 OLYMPIC DRIVE ~ LAKE PLACID, NEW YORK 12946 2 of 17 INDEX NO. E2021-453 = NYSCEF DGC. NO. 20 RECEIVED NYSCEF: @7/28/2023 defendant Amell erected a gate to control non-owners or unauthorized persons accessing the remote properties in the Pork Bay Subdivision by usage of the ingress and egress road he had improved, particularly to Amell’s Lot 39, and except as herein admitted, defendants deny each and every other allegation in paragraph 26 not hereinabove admitted. 7 Answering the allegations in paragraph 27, defendants admit that plaintiff and his attorney made written demands on defendant Roger J. Amell, copies being the correspondence dated February 3, 2021 and March 23, 2021 annexed to the complaint as Exhibit E, and except as so admitted, defendants deny each and every other allegation in paragraph 27 not hereinabove admitted. 8 Answering the allegations in paragraph 29, defendants admit that the roadway and the gate remain in place to date, and except as so admitted, defendants deny each and every other allegation in paragraph 29, not hereinabove admitted. 9. Answering the allegations in paragraph 30 of the complaint, repeat and reallege each and every admission and denial contained in paragraphs 1 through 8, inclusive, of this answer with the same force and effect as though herein set forth enew. 10. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 31 of the complaint, and therefore deny the same. 11. Deny each and every allegation in paragraphs 32, 33, 35, 36, 37 and 38 of the complaint. 12. Answering the allegations in paragraph 34 of the complaint, admit that defendant Roger J. Amell has and continues to claim his vested property rights on and over the roadway and claims LAW OFFICE OF - JAMES M. BROOKS -~ 72 OLYMPIC DRIVE ~ LAKE PLACID, NEW YORK 12946 3 of 17 INDEX NO. E2021-453 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/28/2023 his rights and interests therein across Lots 35 and 34 as are asserted in paragraph | and elsewhere in this answer, and except as so admitted, defendants deny cach and every other allegation in paragraph 34 not hereinabove admitted. 13. Answering the allegations in paragraph 39 of the complaint, repeat and reallege each and every admission and denial contained in paragraphs 1 through 12, inclusive, of this answer with the same force and effect as though herein set forth anew. 14. Answering the allegations in paragraph 40 of the complaint, defendants admit that by constructing, using and occupying the roadway across Lots 35 and 34 and over the 50' easement way defendant Amell claim an interest in that real property adverse to plaintiff, and except as so admitted, defendants deny each and every other allegation in paragraph 40 of the complaint not hereinabove admitted. 15. Deny each and every allegation in 2aragraphs 41 and 45 of the complaint. 16. Answering the allegations in paragraph 42 of the complaint, defendants admit Roger J. Amell claims an easement by written documents and by other means of rights in, on and to portions of the plaintiff's property in Lots 35 and 34 for the reasons stated elsewhere in this answer, and, except as admitted, answering defendants deny knowledge or information sufficient to form a belief as to the truth of all other allegations not so admitted, and therefore deny the same. 17. Deny knowledge or information sufficient to form a belief as to the truth of the allegations in paragraphs 43 and 44 of the complaint, and therefore deny the same. LAW OFFICE OF ~ JAMES M. BROOKS ~ 72 OLYMPIC DRIVE ~ LAKE PLACID, NEW YORK 12946 4 of 17 INDEX NO. 2021-453 =I NYSCEF DOC. NO. 2 RECEIVED NYSCEF: @7/28/2023 18. Answering the allegations in paragraph 46 of the complaint, repeat and reallege each and every admission and denial contained in paragraphs 1 through 17, inclusive, of this answer with the same force and effect as though herein set forth anew. 19. Answering the allegations in paragraph 47 of the complaint, admit that defendant Roger J. Amell did his construction work in 1985-86 and in 2020 on the roadway as a matter ofclaimed right, and except as so admitted, answering defendants deny each and every other allegation in paragraph 47 of the complaint not hereinabove admitted. 20. Deny each and every allegation in paragraphs 48, 50 and 51 of the complaint. 21; Answering the allegations in paragraph 49 of the complaint, defendants admit that the materials used in the construction work remain in place, and except as admitted, defendants deny each and every other allegation in paragraph 49 of the complaint not hereinabove admitted. 22. Answering the allegations in paragraph 52 of the complaint, repeat and reallege cach and every admission and denial contained in paragraphs 1 through 21, inclusive, of this answer with the same force and effect as though herein set forth anew. 23, Deny each and every allegation in paragraphs 53, 54, 55, 56 and 57 of the complaint. 24. Answering the allegations in paragraph 58 of the complaint, repeat and reallege each and every admission and denial contained in paragraphs | through 23, inclusive, of this answer with the same force and effect as though herein set forth anew. 25. Deny each and every allegation in paragraphs 59, 61, 63, 65, 66 and 67 of the LAW OFFICE OF ~ JAMES M. BROOKS -~ 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946 5 of 17 INDEX NO. ,E2021-453 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 97/28/2023 complaint. 26. Deny knowledge or information sufficient to form a belief of the truth of the allegations in paragraphs 60, 62 and 64 of the complaint, and therefore deny the same. 2s Deny cach and every other allegation in said complaint not hereinabove specifically admitted or otherwise denied. FOR A FIRST AFFIRMATIVE DEFENSE: 28. The complaint fails to state any cause of action against defendant Amell Logging, Inc. and the complaint against said defendant should be dismissed. FOR A SECOND AFFIRMATIVE DEFENSE: 29. Upon information and belief, one or all of plaintiffs causes of action are barred by documentary evidence and said causes of action should be dismissed. FOR A THIRD AFFIRMATIVE DEFENSE: 30. As to all causes of action alleging damages within the scope and intendment of RPAP §861(I) involving acts pertaining to the cutting of trees or timber and/or the damaging of lands thereof, defendants herein affirmatively assert that they believed that at the time of such acts they had vested property rights based on valid easement rights and rights of way on and across the lands claimed injured and damaged by plaintiff in Lots 35 and 34 which rights of Amell permitted such actions by defendants, including the right to reopen and improve and complete the right of way access to the land of defendant Roger J. Amell known as Lot 39. 6 LAW OFFICE OF ~ JAMES M. BROOKS ~ 72 OLYMPIC DRIVE ~ LAKE PLACID, NEW YORK 12946 6 of 17 INDEX NO E2021-453 NYSCEF DQC. NO. 10 RECEIVED NYSCEF: 7/28/2023 FOR A FOURTH AFFIRMATIVE DEFENSE: 31. As to all causes of action alleging damages to the 50' right of way property and involving defendants work on said easement way, defendants herein affirmatively assert that they believed that at the time of such acts they had vested rights pursuant to the aforesaid easements to cause and make such improvements to the road, and to improve the casement way for the benefit of an access to the Lot 39 property of defendant Roger J. Amell. FOR A FIFTH AFFIRMATIVE DEFENSE: 32. All claims or causes of action asserted by plaintiff in each of its causes of action that contend that defendant Amell has no property rights or interests in the roadway sections of the easements providing ingress and egress to Lot 39 on and over Lots 35 and 34 and the 50' easement way are barred by the applicable statute of limitations made and provided by CPLR Article 2 and should be dismissed. FOR A SIXTH AFFIRMATIVE DEFENSE: 33. Plaintiffs second cause of action under and pursuant to RPAP Law Article 15 fails to comply with the requirements of law and should be dismissed.. FOR A FIRST COUNTERCLAIM BY DEFENDANT ROGER J. AMELL AGAINST PLAINTIFF: 34. Counterclaiming defendant Roger J. Amell repeats and realleges and incorporates LAW OFFICE OF ~ JAMES M. BROOKS - 72 OLYMPIC DRIVE — LAKE PLACID, NEW YORK 12946 7 of 17 INDEX NO. ,E2021-453 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 97/28/2023 herein by reference each of the allegations in paragraph 3, 5, 6, 7 and 8 and exhibits A and C in plaintiff's complaint with the same force and effect as if all of said allegations and exhibits were set forth and made a part hereat in detail. 35. Upon information and belief, plaintiff Ringold Realty, Inc. claims and may well be the owner of properties and easements described in a deed recorded in the Office of the Franklin County Clerk on January 19, 2000 at Liber 741 at page 268. 36. Upon information and belief, both the real property titles and the property rights of the defendant Roger J. Amell and of plaintiff Ringold Realty, Inc. are derived from their common grantors of the so-called Barbour Tract of 4000 Acres in Township No. 23 of Macomb’s Purchase, Great Tract No. 1, and their said properties are beneficiaries of the rights and benefits vested in said premises, including the Mutual Covenants and Easement Rights sct forth in the written document made January 12, 1953 and recorded on May 25, 1953 in Liber 330 of Deeds at Page 541, same being incorporated herein by reference and made a part hereof, and hereinafter referred to as the “1953 Covenants”. 37. Upon information and belief, amongst other provisions and rights made and established in and by the said 1953 Covenants, and vested and granted to all owners of parcels such as defendant Roger J. Amell as owner of Lot 39, were the following rights: “The grantor reserves unto himself, his heirs and assigns the right to relocate said roadway or any portion thereof at his own proper cost and expense provided that the grantees shall at all times be afforded aright of way permitting equally suitable and convenient access as to LAW OFFICE OF ~ JAMES M. BROOKS ~ 72 OLYMPIC DRIVE ~ LAKE PLACID, NEW YORK 12946 8 of 17 INDEX NO. ,E2021-453 =I NYSCEF DOC. NO. 720 RECEIVED NYSCEF: @7/28/2023 width, condition and direction to their respective properties across the lands of the grantor, and provided further that the said grantees shall have the same rights, privileges and obligations in the use of said relocated roadway as covenanted and agreed herein. The grants, covenants and stipulations hereof shall extend to and be binding upon the respective successors, heirs and assigns of all the parties hereto.” 38. In the year 1985 counterclaiming plaintiff Amell as the then owner of Lot 39, and the then owners of Lots 34, 35, 36, 37, 38 and 40, the prior owners of the Lots now claimed to be owned by counterclaimed defendant Ringold Realty, Inc. agreed that for the mutual benefit and advantage of all Lots 34-40, Amell was to construct, establish and relocate a portion of the designated but not constructed 50! access easement right of way that was then not usable for access by vehicles to Lots 34-39 so as to provide future vehicle access for all Lot 34-39 owners; Amell agreed to do so by use of portions of Lots 35 and 34 in consideration ofit providing vehicle access to his Lot 39, he being an experienced and competent road builder as part of his past work experience; not only did Amell so construct and operate the equipment in 1985-86 to establish the portions of the easement that crosses over portions of Lots 35 and 34, but many of the then owncrs of those Lots 34, 35, 36, 37, 38 and 40 assisted Amell throughout the years 1985-86 in the performance of such work as it also benefitted in the development of their property rights, and the fill that was used for constructing said relocated section of the right of way access came from the soils on their Lot 40 as a further benefit to those prior Lot owners, removal allowing for the improvement of Lot 40 by leveling the surface thereof for its now vehicle parking area. LAW OFFICE OF - JAMES M. BROOKS ~ 72 OLYMPIC DRIVE ~ LAKE PLACID, NEW YORK 12946 9 of 17 INDEX NO. E2021-453 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 07/28/2023 39. In the year 2020 defendant Amell decided it was time for him to market and sell Lot 39; to make the property more marketable Amell decided to clear out the accumulated foliage that had grown up in the section of the 1985-86 relocated access and egress easement area over Lots 35 and 34 and to further improve, clear and open up the remainder of the 50' wide designated but unimproved easement right of way from his Lot 39 westerly boundary to the junction or the connection of said road at the southerly borders of Lot 34/35 and did so in 2020 at his sole cost and expense, he also erecting a gate near and across that same junction so as to impede access by strangers or trespassers intent on entering onto his Lot 39, or damaging the then road he had just improved, said gate not being a locked gate but only kept closed by a hook that was easily unhooked so the other owners of adjoining benefitted lots could access and use the improved easement of way by motor vehicles to their individual Lots. 40. Prior to the sole owner of plaintiffs corporation making its purported purchase of Lots 34, 35, 36, 37, 38 and 40 in 1999 he was personally made aware and had actual notice and knowledge of the existence and location of the relocated and improved section of the ingress and egress road on and over Lots 35 and 34, and had further notice and knowledge that the designated 50' easement of way to the west bounds of Lot 39 was not improved or even made passable by motor vehicles, even though it was then the only paper drawn easement of way for access to the Lots east of Lot 40. 41. The Easement of way as described above and as existing as of 1985-86 constituted 10 LAW OFFICE OF ~ JAMES M. BROOKS ~ 72 OLYMPIC DRIVE — LAKE PLACID, NEW YORK 12946 10 of 17 INDEX NO. ,E2021-453 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 97/28/2023 Amell’s sole means of vehicle access to his Lot 49 but was unimproved from Lots 34 and 35 to Lot 39 so only by foot or by snowmobile was access possible.. 42. The use of that partially improved casement of way by Amell has been continuous for a period of time greater than 30 years from the date of commencement of this action by plaintiff Ringold Realty, Inc. 43. Plaintiffs complaint proclaims that Amell has no legal interest in or right to access his Lot 39 or to utilize the easement of way he opened and improved in 1985-86 and 2020. 44, Plaintiff has no valid and enforceable legal or equitable grounds to oppose or object to the location and construction means of the improved easement of way or to Amell’s use of, interest in, or rights to the easement of way as now exists as a result of and after his labors of 1985-86 and in 2020.. 45. Amell has demanded that plaintiffacknowledge the existence and legality of the existing easement of way and that the easement and the gate placement and existence benefits the premises and rights of all owners, including Amell as owner of Lot 39. 46. Despite Amell’s demands as stated in paragraph 45 above, Plaintiff has failed and refused to acknowledge the existence and validity of Amell’s casement rights and the right and benefits of Amell to erect and maintain the gate.. 47. This counterclaim is commenced and being prosecuted pursuant to Article 15 of the Real Property Actions and Proceedings Law to determine the parties claims to real property and real 1 LAW OFFICE OF ~ JAMES M. BROOKS ~ 72 OLYMPIC DRIVE - LAKE PLACID, NEW YORK 12946 11 of 17 INDEX NO. ,E2021-453 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 7/28/2023 property rights. 48. Plaintiff claims or may claim to have, or it appears by the public record that it may claim some estate or interest adverse to Amell’s real property easement rights and interests and otherwise be adverse to that of Amell as owner of Lot 39 in that it claims Amell has no lawful easement or right-of-way capable for vehicle access that benefits Amell’s Lot 39 premises, all as herein alleged by counterclaiming plaintiff Amell in this first counterclaim. 49. All plaintiff's or defendants are known and are parties to this action, and none are infants or mentally retarded or, upon information and belief, mentally ill or alcohol or drug abusers. 50. Any judgment granted herein will not affect any person or persons not in being or ascertained at the commencement of this action, who by any contingency contained in a devise or grant or otherwise, could afterward become entitled to a beneficial estate or interest in the aforesaid premises. SL. Every person in being who would have been entitled to such estate or interest, if such event had happened immediately before the commencement of the action, is named as a party to this action. 52. No personal claim is made against any plaintiff except such as may defend against this counterclaim. 53. The easement rights of Amell in and over the portions of plaintiff's Lots 35 and 34 and over the 50' wide easement area from the west boundary line of Lot 39 to its junction with the road 122 LAW OFFICE OF ~ JAMES M. BROOKS ~ 72 OLYMPIC DRIVE ~ LAKE PLACID, NEW YORK 12946 12 of 17 INDEX NO. ,E2021-453 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 7/28/2023 section constructed by Amell in 1985-86 as above stated was and remains valid and enforecable and a burden on those used parts of plaintiff's Lots 35 and 34 by application of Amell’s express rights granted by the 1953 Covenants document, the 1983 deed into Amell (plaintiffexhibit A), the mutual consents and exercise of such casement rights by Amell as above stated by Amell in 1985-86 and 2020 and by the real property laws of the State of New York in such cases as is made and provided. 54. Plaintiff took title to its Lots in 1999 with notice, record notice, inquiry notice and/or constructive notice of the aforesaid casement rights and of the interests and claims of Amell as owner of Lot 39. 55. In the light of the claims in the complaint of plaintiff, counterclaiming plaintiffis left with no recourse other than to request the Court determine and declare the respective rights and obligations of the parties with regard to the easement rights of Amell against, on and over those portions of Lots 35 and 34 of counterclaimed defendant Ringold Realty, Inc. and on and over the now improved 50' casement way to the west bounds of Lot 39. 56. Counterclaiming plaintiff Amell is entitled to and demands judgment declaring that the easement rights he asserts in this counterclaim are lawful and valid easement and right-of-way appurtenant rights to and for the benefit of the premises of Amell’s Lot 39 and burden plaintif? s property Lots 35 and 34, and that Amell’s Lot 39 is benefitted from, and is the dominant owner of such easements, and has the legal right to access and utilize the said improved and opened easements of way to his Lot 39 by foot, motorized vehicles and non-motorized vehicles, together with an award 13 LAW OFFICE OF ~ JAMES M. BROOKS ~ 72 OLYMPIC DRIVE ~ LAKE PLACID, NEW YORK 12946 13 of 17 INDEX NO. E2021-453 =I NYSCEF DOC. NO. 20 RECEIVED NYSCEF: @7/28/2023 for his costs and disbursements, and for such other and further relief as the Court deems just and proper. FOR A SECOND COUNTERCLAIM BY DEFENDANT ROGER J. AMELL AGAINST PLAINTIFF: 57. Counterclaiming plaintiff Amell repeats and realleges each and all of the allegations and exhibits set forth in paragraphs 34 through 56 above as if more fully set forth herein. 58. Counterclaiming plaintiff Amell does not have an adequate remedy at law. 595 Counterclaiming plaintiff Amell is entitled to seek and demand a judgment preliminarily and permanently enjoining Plaintiff from obstructing, impeding, preventing or impairing Amell’s free rights of ingress and egress to his Lot 39 and the use of the aforesaid easements of way without interruption or disturbance, together with an award for his costs and disbursements, and such other and further relief as to the Court seems just and proper. FOR A THIRD COUNTERCLAIM BY DEFENDANT ROGER J. AMELL AGAINST PLAINTIFF: 60. Counterclaiming plaintiff Amell repeats and realleges each and all of the allegations and exhibits set forth in paragraphs 34 through 56 above as if more fully set forth herein. 61. Since on or about February 3%, 2021 and to the date hereof, and into the future until Amell’s easement rights are restored, Ringold Realty, Inc. has wrongly, intentionally and without just cause or right, installed, placed and maintains a lock and chain on the security gate described 14 LAW OFFICE OF ~ JAMES M. BROOKS ~ 72 OLYMPIC DRIVE ~ LAKE PLACID, NEW YORK 12946 14 of 17 INDEX NO. E2021-453 =I NYSCEF og NO. 70 RECEIVED NYSCEF: @7/28/2023 and identified in plaintiffs complaint and by this answer, completely barring and precluding Amell’s motor vehicle access, use and enjoyment of access and to his use and enjoyment of his easement rights and of his Lot 39 property. 62. In addition to the loss of use and enjoyment of the easement and property rights suffered by Amell as aforesaid, Amell has been deprived of the opportunity and the right to effectively market his Lot 39 by reason of the locked gate and his being barred access with prospective purchasers that are not able to be conveniently shown the property and its betterments and lakeshore assets by vehicle access, all to the injury and damage of Amell, particularly in the prevailing superior sellers market now prevailing in Northern New York, and particularly for properties located on the shore of Upper Saranac lake. 63. Amell’s damages and losses are of such amount that they are in excess of the jurisdictional limits of all courts of this State, except for the limits of this court. 64. Amell’s own loss of use and his loss of the right to effectively and appropriately market to convey by sale his Lot 39 to another are damages amounts to be determined at trial, but are not less than the reasonable sum of $100,000.00. WHEREFORE, defendants demand an Order and Judgment: 1 Dismissing plaintiffs complaint and awarding defendants their costs and disbursements; and 2. Declaring and adjudging that defendant/counterclaiming plaintiff Roger J. Amell is 15 LAW OFFICE OF - JAMES M. BROOKS - 72 OLYMPIC DRIVE ~ LAKE PLACID, NEW YORK 12946 15 of 17 INDEX NO. ,E2021-453 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 7/28/2023 vested with and has a permanent easement of way on and over the Lots 35 and 34 of Ringold Realty, Inc. and the 50' easement of way to the west bounds of Lot 39 as prayed for in the first counterclaim of this action, and that the gate erected and placed by counterclaiming plaintiff Amell is lawful and proper and entitled to remain in place, but in an unlocked status with means being opened to allow for access by key or code being provided to all Lot owners necding access to their Lots via said easement of way; and a 3 Judgment in money damages in a sum not less than $100,000.00 in favor of counterclaiming plaintiff Roger J. Amell against Ringold Realty, Inc., together with Amell’s costs and disbursements and interest as allowed by law ; and 4. Such other and further relief as is just, proper and equitable as determined by the Court. Dated: July 28, 2021 Law Office of James M. Brooks By.