Preview
FILED: JEFFERSON COUNTY CLERK 03/12/2024 04:20 PM INDEX NO. EF2021-00001543
NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 03/12/2024
EXHIBIT “D”
FILED: JEFFERSON
OSWEGO COUNTY
COUNTY
CLERK
CLERK
08/04/2023
03/12/2024
11:51
04:20
AM PM INDEX
INDEX
NO.
NO.
EF2021-00001543
EFC-2021-0911
NYSCEF DOC. NO. 126
84 RECEIVED NYSCEF: 03/12/2024
08/04/2023
STATE OF NEW YORK
SUPREME COURT COUNTY OF OSWEGO
DAVID BARKER,
Plaintiff, Verified
v. COMPLAINT
ANTHONY V. GERVERA, Index No.:
AMANDA D. GERVERA, and EFC-2021-0911
FARM CREDIT EAST, ACA,
Defendants.
Plaintiff, David Barker, by and through his attorneys, Longstreet & Berry,
LLP, alleges:
1. I am a lifelong farmer and a resident of Oswego County, residing at 80
North Church Street in Lacona.
2. Defendants Anthony V. Gervera and Amanda D. Gervera are residents of
Jefferson County and are my daughter and son-in-law.
3. Defendant Farm Credit East, ACA is a multi-state lender, with offices in the
state of New York, is a current mortgagor and is a necessary party to this
action.
4. This action concerns my rights in my family farm, which is located in both
Oswego and Jefferson Counties. A legal description of the property is
found in the most recent deed, attached as Exhibit "A".
5. The deed to the property was transferred from me and my exwife to
1 of 9
FILED: JEFFERSON
OSWEGO COUNTY
COUNTY
CLERK
CLERK
08/04/2023
03/12/2024
11:51
04:20
AM PM INDEX
INDEX
NO.
NO.
EF2021-00001543
EFC-2021-0911
NYSCEF DOC. NO. 126
84 RECEIVED NYSCEF: 03/12/2024
08/04/2023
Anthony V. Gervera and Amanda D. Gervera on or about August 30, 2018.
6. Prior to the transfer, the property was owned by me and my then wife,
Darlene Barker.
7. Prior to the transfer, Darlene Barker and I were estranged and through
going
a divorce.
8. The transfer of the property took place as a result of negotiations between
me, Darlene Barker and Anthony V. Gervera and Amanda D. Gervera, the
substance of which was that me and my wife would receive$250,000.00 and
that I would have life use of the property.
9. The agreement between the parties was reduced to a handwritten note on a
written contract form containing the stipulation for my life use.
parties'
10. At the time the agreement was reduced to writing, I had a
relationship of trust with Anthony V. Gervera and Amanda D. Gervera, by
virtue of the familial relationship.
11. At the time the agreement was reduced to writing, I reasonably relied on the
superior knowledge of Anthony V. Gervera and Amanda D. Gervera, who
were being assisted by a realtor (his mother) and an attorney, Todd Doldo.
12. At the time the agreement was reduced to writing, I suffered from physical
disabilities, including hearing loss and physical illness and was vulnerable
to undue influence.
2 of 9
FILED: JEFFERSON
OSWEGO COUNTY
COUNTY
CLERK
CLERK
08/04/2023
03/12/2024
11:51
04:20
AM PM INDEX
INDEX
NO.
NO.
EF2021-00001543
EFC-2021-0911
NYSCEF DOC. NO. 126
84 RECEIVED NYSCEF: 03/12/2024
08/04/2023
13. After the execution of the agreement, the written contract was changed
by/or on behalf of Anthony V. Gervera and Amanda D. Gervera by
substituting one or more pages that omitted the handwritten note stipulating
my life use.
14. Thereafter, in relation to the closing, Darlene Barker and I were represented
by the same attorney, Richard Champney, Esq., I never met with Attorney
Champney and he did not carry out the transaction in accordance with my
wishes.
MUTUAL MISTAKE OR UNILATERAL MISTAKE WITH FRAUD.
15. I repeat and reiterate the forgoing.
16. At the time the transaction was being negotiated and completed, I enjoyed a
confidential relationship with Anthony V. Gervera and Amanda D.
Gervera.
17. Prior to the signing of the contract of sale and the execution of the deed, the
parties discussed the transaction and agreed that I would enjoy life use of
the farm.
18. Through mutual mistake, or unilateral mistake on the part of me and fraud
on the part of Anthony V. Gervera and Amanda D. Gervera, the written
sales agreement was changed and the deed finalized without me obtaining
the right to life use in the deed.
3 of 9
FILED: JEFFERSON
OSWEGO COUNTY
COUNTY
CLERK
CLERK
08/04/2023
03/12/2024
11:51
04:20
AM PM INDEX
INDEX
NO.
NO.
EF2021-00001543
EFC-2021-0911
NYSCEF DOC. NO. 126
84 RECEIVED NYSCEF: 03/12/2024
08/04/2023
19. The completion of the transaction without providing me with a life estate
did not reflect the true intention of the parties, or reflected the intention of
Anthony V. Gervera and Amanda D. Gervera but not my intention.
20. As a result, I seek an order reforming the deed to provide for a life estate in
favor of me.
21. In the alternative, I seek an order rescinding the transaction.
22. In the alternative, I seek damages from Anthony V. Gervera and Amanda D.
Gervera representing the monetary value of the life estate which I estimate
to be $391,837.50.
UNDUE INFLUENCE.
23. I repeat and reiterate the forgoing allegations.
24. As a result of the familial relationship between me and Anthony V. Gervera
and Amanda D. Gervera, I trusted them to follow through with our family's
wishes to keep the family farm in the family and to allow me to live there
for the remainder of my life.
25. At the time the transactions were completed, Anthony V. Gervera and
Amanda D. Gervera had the motive to mislead me into thinking that I would
be able to remain at the property for the remainder of my life.
26. The property was transferred to Anthony V. Gervera and Amanda D.
Gervera for consideration that was less than a third the fair market value of
4 of 9
FILED: JEFFERSON
OSWEGO COUNTY
COUNTY
CLERK
CLERK
08/04/2023
03/12/2024
11:51
04:20
AM PM INDEX
INDEX
NO.
NO.
EF2021-00001543
EFC-2021-0911
NYSCEF DOC. NO. 126
84 RECEIVED NYSCEF: 03/12/2024
08/04/2023
the property.
27. At the time the transactions were completed, Anthony V. Gervera and
Amanda D. Gervera had the opportunity to mislead me into believing that
by signing the deed over to them that I would be able to remain at the
property for the remainder of my life.
28. At the time the transactions were completed, Anthony V. Gervera and
Amanda D. Gervera exercised undue influence over me by tricking me into
signing a deed that did not provide for life use of the property.
29. After the completion of the real estate transaction, I continued to live at the
property believing that I had a right to be there for life, but thereafter
discovered that Anthony V. Gervera and Amanda D. Gervera were planning
to sell much of the property.
30. As a result, I seek an order reforming the deed to provide for a life estate in
my favor
31. In the alternative, I seek an order rescinding the transaction.
32. In the alternative, I seek damages from Anthony V. Gervera and Amanda D.
Gervera representing the monetary value of the life estate which I estimate
to be $391,837.50.
5 of 9
FILED: JEFFERSON
OSWEGO COUNTY
COUNTY
CLERK
CLERK
08/04/2023
03/12/2024
11:51
04:20
AM PM INDEX
INDEX
NO.
NO.
EF2021-00001543
EFC-2021-0911
NYSCEF DOC. NO. 126
84 RECEIVED NYSCEF: 03/12/2024
08/04/2023
UNJUST ENRICHMENT/CONSTRUCTIVE TRUST.
33. I repeat and reiterate the forgoing allegations.
34. In connection with the real property transaction, Anthony V. Gervera and
Amanda D. Gervera promised, orally and in writing, that I would be entitled
to enjoy use of the family farm for the rest of my life.
35. In reliance on the representations of Anthony V. Gervera and Amanda D.
Gervera, I transferred the property to them.
36. Anthony V. Gervera and Amanda D. Gervera were enriched by obtaining
the family farm for a fraction of the market value of the property.
37. The enrichment of Anthony V. Gervera and Amanda D. Gervera was at my
expense.
38. It would be against equity and good conscience to permit Anthony V.
Gervera and Amanda D. Gervera to retain the family farm without
providing a life estate in favor of me.
39. As a result, I seek an order reforming the deed to provide for a life estate in
favor of me.
40. In the alternative, I seek an order rescinding the transaction.
41. In the alternative, I seek damages from Anthony V. Gervera and Amanda D.
Gervera representing the monetary value of the life estate which I estimate
to be $391,837.50.
6 of 9
FILED: JEFFERSON
OSWEGO COUNTY
COUNTY
CLERK
CLERK
08/04/2023
03/12/2024
11:51
04:20
AM PM INDEX
INDEX
NO.
NO.
EF2021-00001543
EFC-2021-0911
NYSCEF DOC. NO. 126
84 RECEIVED NYSCEF: 03/12/2024
08/04/2023
CONVERSION.
42. I repeat and reiterate the forgoing allegations.
43. After the completion of the real estate transaction, Anthony V. Gervera and
Amanda D. Gervera sold two farm tractors, hay and a modular home
belonging to me.
44. I estimate the fair value of them to be $3,000 for tractors, $7,500 for hay,
$16,500 for the modular home.
45. As a result, I demand judgment against Anthony V. Gervera and Amanda D.
Gervera in the amount of $28,000.00.
WHEREFORE I demand judgment as follows:
A. An order reforming the deeds to provide for a life estate in favor of
David Barker; or
B. In the alternative, an order rescinding the transaction; or
C. A judgment for damages against Anthony V. Gervera and Amanda D.
Gervera in the amount of $391,837.50.; and
D. A judgment against Anthony V. Gervera and Amanda D. Gervera in
the amount of $28,000.00; and
E. Such other and further relief as the Court deems just proper and
equitable.
7 of 9
FILED: JEFFERSON
OSWEGO COUNTY
COUNTY
CLERK
CLERK
08/04/2023
03/12/2024
11:51
04:20
AM PM INDEX
INDEX
NO.
NO.
EF2021-00001543
EFC-2021-0911
NYSCEF DOC. NO. 126
84 RECEIVED NYSCEF: 03/12/2024
08/04/2023
Dated: January 27, 2022
LONGSTREET & BERRY, LLP
By:
Michael Lo gstreet, Esq.
Attorneys for int ff
Office & P.O. Address
415 Elm St.
Fayetteville, New York 13066
Telephone: (315) 422-9295
8 of 9
FILED: JEFFERSON
OSWEGO COUNTY
COUNTY
CLERK
CLERK
08/04/2023
03/12/2024
11:51
04:20
AM PM INDEX
INDEX
NO.
NO.
EF2021-00001543
EFC-2021-0911
NYSCEF DOC. NO. 126
84 RECEIVED NYSCEF: 03/12/2024
08/04/2023
INDIVIDUAL VERIFICATION
STATE OF NEW YORK )
)ss.:
COUNTY OF ONONDAGA )
David Barker, being duly sworn, deposes and says that deponent is the
Plaintiff in the within action; that deponent has read the foregoing Complaint and
knows the contents thereof; that the same is true to deponent's own knowledge,
except as to the matters therein stated to be alleged on information and belief, and
that as to those matters deponent believes it to be true.
David Barker
Sworn to before me this
.26th day of January, 2022
y Public
StE ael J. Lengstreet
Notary Pubne State of New York
Qualifi0d in ÛnOndaC8 COUnty
My Commission Expired 02/10/202Je
9 of 9
Preview
FILED: JEFFERSON COUNTY CLERK 03/12/2024 04:20 PM INDEX NO. EF2021-00001543 NYSCEF DOC. NO. 126 RECEIVED NYSCEF: 03/12/2024 EXHIBIT “D” FILED: JEFFERSON OSWEGO COUNTY COUNTY CLERK CLERK 08/04/2023 03/12/2024 11:51 04:20 AM PM INDEX INDEX NO. NO. EF2021-00001543 EFC-2021-0911 NYSCEF DOC. NO. 126 84 RECEIVED NYSCEF: 03/12/2024 08/04/2023 STATE OF NEW YORK SUPREME COURT COUNTY OF OSWEGO DAVID BARKER, Plaintiff, Verified v. COMPLAINT ANTHONY V. GERVERA, Index No.: AMANDA D. GERVERA, and EFC-2021-0911 FARM CREDIT EAST, ACA, Defendants. Plaintiff, David Barker, by and through his attorneys, Longstreet & Berry, LLP, alleges: 1. I am a lifelong farmer and a resident of Oswego County, residing at 80 North Church Street in Lacona. 2. Defendants Anthony V. Gervera and Amanda D. Gervera are residents of Jefferson County and are my daughter and son-in-law. 3. Defendant Farm Credit East, ACA is a multi-state lender, with offices in the state of New York, is a current mortgagor and is a necessary party to this action. 4. This action concerns my rights in my family farm, which is located in both Oswego and Jefferson Counties. A legal description of the property is found in the most recent deed, attached as Exhibit "A". 5. The deed to the property was transferred from me and my exwife to 1 of 9 FILED: JEFFERSON OSWEGO COUNTY COUNTY CLERK CLERK 08/04/2023 03/12/2024 11:51 04:20 AM PM INDEX INDEX NO. NO. EF2021-00001543 EFC-2021-0911 NYSCEF DOC. NO. 126 84 RECEIVED NYSCEF: 03/12/2024 08/04/2023 Anthony V. Gervera and Amanda D. Gervera on or about August 30, 2018. 6. Prior to the transfer, the property was owned by me and my then wife, Darlene Barker. 7. Prior to the transfer, Darlene Barker and I were estranged and through going a divorce. 8. The transfer of the property took place as a result of negotiations between me, Darlene Barker and Anthony V. Gervera and Amanda D. Gervera, the substance of which was that me and my wife would receive$250,000.00 and that I would have life use of the property. 9. The agreement between the parties was reduced to a handwritten note on a written contract form containing the stipulation for my life use. parties' 10. At the time the agreement was reduced to writing, I had a relationship of trust with Anthony V. Gervera and Amanda D. Gervera, by virtue of the familial relationship. 11. At the time the agreement was reduced to writing, I reasonably relied on the superior knowledge of Anthony V. Gervera and Amanda D. Gervera, who were being assisted by a realtor (his mother) and an attorney, Todd Doldo. 12. At the time the agreement was reduced to writing, I suffered from physical disabilities, including hearing loss and physical illness and was vulnerable to undue influence. 2 of 9 FILED: JEFFERSON OSWEGO COUNTY COUNTY CLERK CLERK 08/04/2023 03/12/2024 11:51 04:20 AM PM INDEX INDEX NO. NO. EF2021-00001543 EFC-2021-0911 NYSCEF DOC. NO. 126 84 RECEIVED NYSCEF: 03/12/2024 08/04/2023 13. After the execution of the agreement, the written contract was changed by/or on behalf of Anthony V. Gervera and Amanda D. Gervera by substituting one or more pages that omitted the handwritten note stipulating my life use. 14. Thereafter, in relation to the closing, Darlene Barker and I were represented by the same attorney, Richard Champney, Esq., I never met with Attorney Champney and he did not carry out the transaction in accordance with my wishes. MUTUAL MISTAKE OR UNILATERAL MISTAKE WITH FRAUD. 15. I repeat and reiterate the forgoing. 16. At the time the transaction was being negotiated and completed, I enjoyed a confidential relationship with Anthony V. Gervera and Amanda D. Gervera. 17. Prior to the signing of the contract of sale and the execution of the deed, the parties discussed the transaction and agreed that I would enjoy life use of the farm. 18. Through mutual mistake, or unilateral mistake on the part of me and fraud on the part of Anthony V. Gervera and Amanda D. Gervera, the written sales agreement was changed and the deed finalized without me obtaining the right to life use in the deed. 3 of 9 FILED: JEFFERSON OSWEGO COUNTY COUNTY CLERK CLERK 08/04/2023 03/12/2024 11:51 04:20 AM PM INDEX INDEX NO. NO. EF2021-00001543 EFC-2021-0911 NYSCEF DOC. NO. 126 84 RECEIVED NYSCEF: 03/12/2024 08/04/2023 19. The completion of the transaction without providing me with a life estate did not reflect the true intention of the parties, or reflected the intention of Anthony V. Gervera and Amanda D. Gervera but not my intention. 20. As a result, I seek an order reforming the deed to provide for a life estate in favor of me. 21. In the alternative, I seek an order rescinding the transaction. 22. In the alternative, I seek damages from Anthony V. Gervera and Amanda D. Gervera representing the monetary value of the life estate which I estimate to be $391,837.50. UNDUE INFLUENCE. 23. I repeat and reiterate the forgoing allegations. 24. As a result of the familial relationship between me and Anthony V. Gervera and Amanda D. Gervera, I trusted them to follow through with our family's wishes to keep the family farm in the family and to allow me to live there for the remainder of my life. 25. At the time the transactions were completed, Anthony V. Gervera and Amanda D. Gervera had the motive to mislead me into thinking that I would be able to remain at the property for the remainder of my life. 26. The property was transferred to Anthony V. Gervera and Amanda D. Gervera for consideration that was less than a third the fair market value of 4 of 9 FILED: JEFFERSON OSWEGO COUNTY COUNTY CLERK CLERK 08/04/2023 03/12/2024 11:51 04:20 AM PM INDEX INDEX NO. NO. EF2021-00001543 EFC-2021-0911 NYSCEF DOC. NO. 126 84 RECEIVED NYSCEF: 03/12/2024 08/04/2023 the property. 27. At the time the transactions were completed, Anthony V. Gervera and Amanda D. Gervera had the opportunity to mislead me into believing that by signing the deed over to them that I would be able to remain at the property for the remainder of my life. 28. At the time the transactions were completed, Anthony V. Gervera and Amanda D. Gervera exercised undue influence over me by tricking me into signing a deed that did not provide for life use of the property. 29. After the completion of the real estate transaction, I continued to live at the property believing that I had a right to be there for life, but thereafter discovered that Anthony V. Gervera and Amanda D. Gervera were planning to sell much of the property. 30. As a result, I seek an order reforming the deed to provide for a life estate in my favor 31. In the alternative, I seek an order rescinding the transaction. 32. In the alternative, I seek damages from Anthony V. Gervera and Amanda D. Gervera representing the monetary value of the life estate which I estimate to be $391,837.50. 5 of 9 FILED: JEFFERSON OSWEGO COUNTY COUNTY CLERK CLERK 08/04/2023 03/12/2024 11:51 04:20 AM PM INDEX INDEX NO. NO. EF2021-00001543 EFC-2021-0911 NYSCEF DOC. NO. 126 84 RECEIVED NYSCEF: 03/12/2024 08/04/2023 UNJUST ENRICHMENT/CONSTRUCTIVE TRUST. 33. I repeat and reiterate the forgoing allegations. 34. In connection with the real property transaction, Anthony V. Gervera and Amanda D. Gervera promised, orally and in writing, that I would be entitled to enjoy use of the family farm for the rest of my life. 35. In reliance on the representations of Anthony V. Gervera and Amanda D. Gervera, I transferred the property to them. 36. Anthony V. Gervera and Amanda D. Gervera were enriched by obtaining the family farm for a fraction of the market value of the property. 37. The enrichment of Anthony V. Gervera and Amanda D. Gervera was at my expense. 38. It would be against equity and good conscience to permit Anthony V. Gervera and Amanda D. Gervera to retain the family farm without providing a life estate in favor of me. 39. As a result, I seek an order reforming the deed to provide for a life estate in favor of me. 40. In the alternative, I seek an order rescinding the transaction. 41. In the alternative, I seek damages from Anthony V. Gervera and Amanda D. Gervera representing the monetary value of the life estate which I estimate to be $391,837.50. 6 of 9 FILED: JEFFERSON OSWEGO COUNTY COUNTY CLERK CLERK 08/04/2023 03/12/2024 11:51 04:20 AM PM INDEX INDEX NO. NO. EF2021-00001543 EFC-2021-0911 NYSCEF DOC. NO. 126 84 RECEIVED NYSCEF: 03/12/2024 08/04/2023 CONVERSION. 42. I repeat and reiterate the forgoing allegations. 43. After the completion of the real estate transaction, Anthony V. Gervera and Amanda D. Gervera sold two farm tractors, hay and a modular home belonging to me. 44. I estimate the fair value of them to be $3,000 for tractors, $7,500 for hay, $16,500 for the modular home. 45. As a result, I demand judgment against Anthony V. Gervera and Amanda D. Gervera in the amount of $28,000.00. WHEREFORE I demand judgment as follows: A. An order reforming the deeds to provide for a life estate in favor of David Barker; or B. In the alternative, an order rescinding the transaction; or C. A judgment for damages against Anthony V. Gervera and Amanda D. Gervera in the amount of $391,837.50.; and D. A judgment against Anthony V. Gervera and Amanda D. Gervera in the amount of $28,000.00; and E. Such other and further relief as the Court deems just proper and equitable. 7 of 9 FILED: JEFFERSON OSWEGO COUNTY COUNTY CLERK CLERK 08/04/2023 03/12/2024 11:51 04:20 AM PM INDEX INDEX NO. NO. EF2021-00001543 EFC-2021-0911 NYSCEF DOC. NO. 126 84 RECEIVED NYSCEF: 03/12/2024 08/04/2023 Dated: January 27, 2022 LONGSTREET & BERRY, LLP By: Michael Lo gstreet, Esq. Attorneys for int ff Office & P.O. Address 415 Elm St. Fayetteville, New York 13066 Telephone: (315) 422-9295 8 of 9 FILED: JEFFERSON OSWEGO COUNTY COUNTY CLERK CLERK 08/04/2023 03/12/2024 11:51 04:20 AM PM INDEX INDEX NO. NO. EF2021-00001543 EFC-2021-0911 NYSCEF DOC. NO. 126 84 RECEIVED NYSCEF: 03/12/2024 08/04/2023 INDIVIDUAL VERIFICATION STATE OF NEW YORK ) )ss.: COUNTY OF ONONDAGA ) David Barker, being duly sworn, deposes and says that deponent is the Plaintiff in the within action; that deponent has read the foregoing Complaint and knows the contents thereof; that the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged on information and belief, and that as to those matters deponent believes it to be true. David Barker Sworn to before me this .26th day of January, 2022 y Public StE ael J. Lengstreet Notary Pubne State of New York Qualifi0d in ÛnOndaC8 COUnty My Commission Expired 02/10/202Je 9 of 9