Preview
FILED: ULSTER COUNTY CLERK 12/08/2020 04:34 PM INDEX NO. EF2020-1019
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/08/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER
Index No. EF2020-1019
TOWN of MARBLETOWN,
Plaintiffs, REPLY AFFIRMATION
-against-
OF ATTORNEY SCARMATO
DUCHESS FARM EQUESTRIAN
COMMUNITY, LLC and MICHAEL WARREN, Hon. Richard Mott, JSC
Defendants.
State of New York )
County of Rockland ) ss.:
Joseph S. Scarmato, hereby affirms the truth of the following under penalty of perjury:
1. I am an attorney licensed to practice law in the state of New York since 1983 and,
I maintain an office for the practice of law in Rockland County, New York under the firm name
of Scarmato & Associates.
2. I respectfully submit this affirmation in support of defendants’ motion to dismiss,
and I am fully familiar with the matters stated below.
3. One of the main focuses of my practice for the past 35 years has been representing
real estate developers and property owners and managers in the New York Metropolitan Area. In
this regard, I have been engaged to form many homeowner’s associations.
4. In September 18, 2020, my firm was engaged by Duchess Farm Equestrian
Community, LLC (“Duchess Farm”) for the purpose of forming a homeowner’s association for
the Duchess Farm Equestrian Community subdivision.
5. In connection with this engagement, I verified that Duchess Farm previously filed
with the Real Estate Finance Bureau of the New York Attorney General’s Office the papers that
were necessary for CPS-7 treatment with respect to the maintenance, snow-plowing, and repair of
Blustein, Shapiro, Rich & Barone, LLP
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FILED: ULSTER COUNTY CLERK 12/08/2020 04:34 PM INDEX NO. EF2020-1019
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/08/2020
the private roads, private lanes and private driveway (Morgan Lane) that comprise the rights-of-
way for ingress and egress in the subdivision.
6. As is relevant to this action, a CPS-7 is a simplified mechanism established by the
New York Attorney General for the common elements of a real estate project to be managed
without the filing of a complete offering plan.
7. The maintenance obligations set forth in the Road Maintenance Agreements (Dkt
56 & 66) filed by Duchess Farm with the Ulster County Clerk are eligible for CPS-7 treatment.
This is confirmed by the no-action letters dated June 26, 2007 and July 25, 2011 that were issued
by the Real Estate Finance Bureau of the New York Attorney General’s Office. (See Exhibits 1 &
2 to Dkt 33).
8. While I have successfully used CPS-7 treatment for many clients who are
developing subdivisions with similar private rights-of-way as in the Duchess Farm Equestrian
Community, I understand that the Town recently questioned the suitability of using the CPS-7
mechanism in this matter, so Duchess Farm engaged my firm to take the necessary steps to form
a homeowner’s association to carry out the obligations referenced in the Road Maintenance
Agreements.
9. At present, this work is underway, and Duchess Farm and Michael Warren have
cooperated fully with my firm in getting this work accomplished.
10. Likewise, all the lot owners in Duchess Farm Equestrian Community have been
cooperating with my firm in getting the work done.
11. The following work has been either completed or is ongoing as of this date:
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FILED: ULSTER COUNTY CLERK 12/08/2020 04:34 PM INDEX NO. EF2020-1019
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/08/2020
a. A review of the original filings to the NYS Department of Law made by Rebecca
Millouras-Lettre, Esq. in July of 2011 and verification of the issuance of the No
Action Letter by the Department.
b. Drafted and submitted formation documents to the New York Secretary of
State’s Office for the formation of “Duchess Farm Home Owners Association
Inc.”, a New York Not-for-Profit membership corporation (the “HOA”).
Certificate of Incorporation is expected the week of December 7, 2020.
c. Drafted and reviewed with the client a Declaration of Covenants and Restrictions
for the HOA.
d. Ordered client’s surveyor to produce a metes and bounds description of the road
ways to be deeded to the HOA. This remains pending at this time but expected
this month. A deed to the HOA of the roadways will be recorded upon receipt
of the description.
e. Requested the Town Assessor’s office to issue a proper tax lot designation for
the roadways so as to obtain separate tax bills for the HOA. This remains
pending at this time but expected this month.
f. Reviewed back title reports for several recently been sold lots and identified
several recorded instruments relating to road maintenance obligations.
g. Ordered copies of prior recorded easements, declarations and road maintenance
agreements found in back titles in order to ensure that there are no conflicts with
the terms of the newly proposed HOA declaration. Receipt of these documents
remain pending at this time but expected this month.
Blustein, Shapiro, Rich & Barone, LLP
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FILED: ULSTER COUNTY CLERK 12/08/2020 04:34 PM INDEX NO. EF2020-1019
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/08/2020
h. Commenced work on a revised HOA budget by contacting vendors to solicit new
estimates for the new HOA budget to be presented at the first meeting of home
owners. The initial budget was filed with the 2011 CPS-7 application.
i. Prepared notices and organizational documents for the first meeting of the home
owners to present and discuss the proposed HOA Declaration. It is expected a
virtual meeting of the home owners will take place in January, 2021 at which
time a home owner will be elected to the board of managers and control of the
HOA will be turned over to the board.
12. I understand that counsel for the Town opined that further action is required by the
Town Planning Board to subdivide the 50’ Rights-Of-Way before these Rights-Of-Way can be
conveyed to the Homeowners’ Association.
13. My review of this matter indicates that it isn’t necessary for the Planning Board to
approve any further subdivision of the property for these Rights-Of-Way to be conveyed to the
Homeowners’ Association.
14. The Ulster County Tax Maps already show the Rights-Of-Way as having been
subdivided from the parent parcel.
15. Below is a screenshot of the online tax map that confirms the Rights-Of-Way have
already been reflected on the tax map as a separate parcel.
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FILED: ULSTER COUNTY CLERK 12/08/2020 04:34 PM INDEX NO. EF2020-1019
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/08/2020
16. One thing that needs to be done prior to the conveyance of the roads in the
subdivision to the HOA are for a surveyor to provide metes and bounds descriptions for the roads,
to be contained in the eventual deed. It is my understanding that this process is already underway.
17. I do not anticipate any notable obstacles in getting the HOA established, given the
anticipated cooperation of all of the present lot owners and the progress that has been made.
Dated Chestnut Ridge, New York
December 7, 2020 Joseph S. Scarmato
Blustein, Shapiro, Rich & Barone, LLP
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Preview
FILED: ULSTER COUNTY CLERK 12/08/2020 04:34 PM INDEX NO. EF2020-1019 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/08/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER Index No. EF2020-1019 TOWN of MARBLETOWN, Plaintiffs, REPLY AFFIRMATION -against- OF ATTORNEY SCARMATO DUCHESS FARM EQUESTRIAN COMMUNITY, LLC and MICHAEL WARREN, Hon. Richard Mott, JSC Defendants. State of New York ) County of Rockland ) ss.: Joseph S. Scarmato, hereby affirms the truth of the following under penalty of perjury: 1. I am an attorney licensed to practice law in the state of New York since 1983 and, I maintain an office for the practice of law in Rockland County, New York under the firm name of Scarmato & Associates. 2. I respectfully submit this affirmation in support of defendants’ motion to dismiss, and I am fully familiar with the matters stated below. 3. One of the main focuses of my practice for the past 35 years has been representing real estate developers and property owners and managers in the New York Metropolitan Area. In this regard, I have been engaged to form many homeowner’s associations. 4. In September 18, 2020, my firm was engaged by Duchess Farm Equestrian Community, LLC (“Duchess Farm”) for the purpose of forming a homeowner’s association for the Duchess Farm Equestrian Community subdivision. 5. In connection with this engagement, I verified that Duchess Farm previously filed with the Real Estate Finance Bureau of the New York Attorney General’s Office the papers that were necessary for CPS-7 treatment with respect to the maintenance, snow-plowing, and repair of Blustein, Shapiro, Rich & Barone, LLP -1- 1 of 5 FILED: ULSTER COUNTY CLERK 12/08/2020 04:34 PM INDEX NO. EF2020-1019 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/08/2020 the private roads, private lanes and private driveway (Morgan Lane) that comprise the rights-of- way for ingress and egress in the subdivision. 6. As is relevant to this action, a CPS-7 is a simplified mechanism established by the New York Attorney General for the common elements of a real estate project to be managed without the filing of a complete offering plan. 7. The maintenance obligations set forth in the Road Maintenance Agreements (Dkt 56 & 66) filed by Duchess Farm with the Ulster County Clerk are eligible for CPS-7 treatment. This is confirmed by the no-action letters dated June 26, 2007 and July 25, 2011 that were issued by the Real Estate Finance Bureau of the New York Attorney General’s Office. (See Exhibits 1 & 2 to Dkt 33). 8. While I have successfully used CPS-7 treatment for many clients who are developing subdivisions with similar private rights-of-way as in the Duchess Farm Equestrian Community, I understand that the Town recently questioned the suitability of using the CPS-7 mechanism in this matter, so Duchess Farm engaged my firm to take the necessary steps to form a homeowner’s association to carry out the obligations referenced in the Road Maintenance Agreements. 9. At present, this work is underway, and Duchess Farm and Michael Warren have cooperated fully with my firm in getting this work accomplished. 10. Likewise, all the lot owners in Duchess Farm Equestrian Community have been cooperating with my firm in getting the work done. 11. The following work has been either completed or is ongoing as of this date: Blustein, Shapiro, Rich & Barone, LLP -2- 2 of 5 FILED: ULSTER COUNTY CLERK 12/08/2020 04:34 PM INDEX NO. EF2020-1019 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/08/2020 a. A review of the original filings to the NYS Department of Law made by Rebecca Millouras-Lettre, Esq. in July of 2011 and verification of the issuance of the No Action Letter by the Department. b. Drafted and submitted formation documents to the New York Secretary of State’s Office for the formation of “Duchess Farm Home Owners Association Inc.”, a New York Not-for-Profit membership corporation (the “HOA”). Certificate of Incorporation is expected the week of December 7, 2020. c. Drafted and reviewed with the client a Declaration of Covenants and Restrictions for the HOA. d. Ordered client’s surveyor to produce a metes and bounds description of the road ways to be deeded to the HOA. This remains pending at this time but expected this month. A deed to the HOA of the roadways will be recorded upon receipt of the description. e. Requested the Town Assessor’s office to issue a proper tax lot designation for the roadways so as to obtain separate tax bills for the HOA. This remains pending at this time but expected this month. f. Reviewed back title reports for several recently been sold lots and identified several recorded instruments relating to road maintenance obligations. g. Ordered copies of prior recorded easements, declarations and road maintenance agreements found in back titles in order to ensure that there are no conflicts with the terms of the newly proposed HOA declaration. Receipt of these documents remain pending at this time but expected this month. Blustein, Shapiro, Rich & Barone, LLP -3- 3 of 5 FILED: ULSTER COUNTY CLERK 12/08/2020 04:34 PM INDEX NO. EF2020-1019 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/08/2020 h. Commenced work on a revised HOA budget by contacting vendors to solicit new estimates for the new HOA budget to be presented at the first meeting of home owners. The initial budget was filed with the 2011 CPS-7 application. i. Prepared notices and organizational documents for the first meeting of the home owners to present and discuss the proposed HOA Declaration. It is expected a virtual meeting of the home owners will take place in January, 2021 at which time a home owner will be elected to the board of managers and control of the HOA will be turned over to the board. 12. I understand that counsel for the Town opined that further action is required by the Town Planning Board to subdivide the 50’ Rights-Of-Way before these Rights-Of-Way can be conveyed to the Homeowners’ Association. 13. My review of this matter indicates that it isn’t necessary for the Planning Board to approve any further subdivision of the property for these Rights-Of-Way to be conveyed to the Homeowners’ Association. 14. The Ulster County Tax Maps already show the Rights-Of-Way as having been subdivided from the parent parcel. 15. Below is a screenshot of the online tax map that confirms the Rights-Of-Way have already been reflected on the tax map as a separate parcel. Blustein, Shapiro, Rich & Barone, LLP -4- 4 of 5 FILED: ULSTER COUNTY CLERK 12/08/2020 04:34 PM INDEX NO. EF2020-1019 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 12/08/2020 16. One thing that needs to be done prior to the conveyance of the roads in the subdivision to the HOA are for a surveyor to provide metes and bounds descriptions for the roads, to be contained in the eventual deed. It is my understanding that this process is already underway. 17. I do not anticipate any notable obstacles in getting the HOA established, given the anticipated cooperation of all of the present lot owners and the progress that has been made. Dated Chestnut Ridge, New York December 7, 2020 Joseph S. Scarmato Blustein, Shapiro, Rich & Barone, LLP -5- 5 of 5