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SUPREME COURT COUNTY OF HERKIMER
CHRISTOPHER SMITH AND MICHAEL SMITH AS
TRUSTEES OF THE JAY AND PATRICIA SMITH
AFFIDAVIT IN OPPOSITION
TO TRO AND PRELIMINARY
Plaintiffs, INJUNCTION
v.
THEODORE P. SMITH INCOME ONLY
Defendant.
STATE OF NEW YORK )
: ss.:
COUNTY OF HERKIMER )
THEODORE P. SMITH, as beneficiary of the Theodore P. Smith Income Only Irrevocable
The Ace of Diamonds Mine & Campground LLC (“Ace of Diamonds”) is open to
I earn my livelihood and support my family by operating Ace of Diamonds on the
Property (as defined in the Verifi is owned by The Jay and Patricia
Smith Irrevocable Trust and the Theodore P. Smith Income Only Irrevocable Trust, as tenants in
At no point has my operation of Ace of Diamonds ever impeded any desired use of
2257275.v1
The amount of herkimer diamond quartz crystals that the public extracts from the
mine is de minimus when looking at the overall value of the property and amount of minerals
st.
Many guests have already made reservations (even for camping dates in October)
To abruptly close our tourist mine to the public without notice would be
catastrophic to our business and to our customers that have already planned their trip to the mine
(some have undoubtedly already purchased plane tickets, reserved hotel rooms, purchased
With regard to “commercial” mining at the Property, Tom Dillon and
I assist them by using a dump truck and excavator, but I do not engage in the
I remove dirt overburden using the excavator. This dirt is then put in the haul truck
Dan and/or Tom use a pneumatic drill to place inch-and-three-quarter holes about
Dan and/or Tom then place a hand-held hydraulic rock splitter into the drill holes.
This cracks the rock.
I then use the jackhammer attachment on the excavator to further loosen the rock.
The rock is then scooped up and put on the haul truck and relocated elsewhere in
2257275.v1
the mine. Some rock is crushed on site to create crushed gravel for maintaining the
The drilling/splitting process continues until the "pocket layer" is reached. This is
the layer where the larger crystals are extracted by Tom and Dan. There are
"pockets" of crystals at the same layer throughout the entire mine (pockets are
generally 3 to 5 feet apart but are consistently found at the same layer throughout
entire Property. The crystals are then placed into buckets for
The layer below the "pocket layer" is known as the "ledge layer". Tom and Dan
also mine this layer as this is where the smaller jewelry quality crystals are typically
located. The ledge layer is approximately 3 to 5 feet thick. Tom and Dan break up
the "ledge layer" by hand to find the crystals, which is a very slow and time
Tom and Dan's discarded rocks are then placed on the haul truck and dumped on
the tourist tailings pile. In general, new material is added to the tourist pile on
er week).
In a typical year, only a total of approximately 2,000 square feet of rock is mined
Last year, 2020, there was increased tourist activity that was occasioned by the
Given the large amount of crystals contained on and throughout the entire Property,
the amount of crystals extracted from the commercial mining area in any given year is extremely
small.
2257275.v1
The ability to add "fresh" rock to the tourist piles is a critical component of our
business operations as many customers visit our mine solely based on this fact (this is a competitive
).
The Gift Shop
We also have a gift shop on site where we sell the Hekrimer Diamond quartz
We have developed a reputation for having one of the most comprehensive and
interesting gift shops in the region and some people travel to our property just to shop in the store.
ed Materially In the Operation of Ace of Diamonds
My brothers, Jay and Peter Smith, have operated their own businesses in Herkimer
other, Jay Smith,
and myself, as co-tenants, I am the only Smith brother that continued the Ace of Diamonds
Jay and Peter Smith devoted their careers to other business enterprises.
Over the years, Ace of Diamonds has paid all of the expenses associated with
maintaining the Property.
For example, Ace of Diamonds has paid all insurance, all village, county, and
school property taxes, all utilities, and all of the expenses associated with repairs and
improvements to the Property, with the minor exception of some improvements that began last
year and the property tax bills this year (which were made pursuant to the agreement in principle
that I had reached with my brother, Jay Smith pending finalization of the written co-tenant
agreement).
2257275.v1
To the extent Plaintiffs allege that they paid over $25,000 in expenses over the
years, these improvements were made only within the past year and were either in contemplation
of their development of other adjacent and nearby parcels that they owned with me or merely to
create supporting evidence for Plaintiff’s argument for purposes of this litigation. Plaintiff’s
Until very recently, Plaintiffs were interested in a joint venture with
Ace of Diamonds to develop and operate a larger campground with more amenities on separate
parcels across the highwa
I offered to pay Mike for his time spent on the Property last year, but he refused
payment, repeatedly indicating that he “just wanted to help.” Plaintiffs even admit that the
materials were conveyed at cost to Ace of Diamonds, meaning Plaintiffs did not pay for their cost.
To the extent Plaintiffs assisted with overburden removal, this was the first assistance ever
provided in that regard and it was only removed for the purpose of providing fill for the
Since approximately 2013, I have paid Plaintiffs $21,000.00 per year, under duress,
for essentially a license to operate Ace of Diamonds without their infringement, even though I was
There is plenty of room on the Property with good frontage and road access for
Plaintiffs’ allegations in the Verified Complaint that, among other things, (i) over
the years, the Trust (as defined in the Verified Complaint) has provided numerous improvements
2257275.v1
Verified Complaint, ¶ 17), or (ii) the Property cannot be partitioned without causing “massive
disruption” to the Ace of Diamonds business ( .,at ¶ 27), or (iii)mineral pockets cannot be
divided in accordance with the parties’ proportionate shares of the Property ( .), or (iv) Ace of
Diamonds will increase the intensity of commercial mineral extraction on the Property ( ., at ¶
33), or (v) the “commercial” mining taking place on the Property will deplete the Property’s most
valuable pockets of minerals or cause irreparable harm to the viability of the tourist mining and
campground operations of the Ace of Diamonds business ( ., at ¶¶ 34-35), are all wildly untrue,
and this will be proven during the course of this litigation.
At no point have Plaintiffs ever displayed any interest in taking on the daily
In the Spring of 2020, Plaintiffs began objecting to an alleged increase in
commercial mining activity, and they also began requesting increased payments on a going
I negotiated extensively over the terms of Plaintiffs’ demands, and we reached an
I requested my attorney to prepare a draft co-tenant agreement containing the terms
My attorney shared the draft tenant-in-common agreement with Plaintiffs’ counsel.
For reasons which have never been explained by Plaintiffs or their attorney,
Plaintiffs refused to sign the tenant-in-common agreement that I had prepared at my expense to
2257275.v1
To this date, Plaintiffs have not offered any comments on the draft tenant-in-
common agreement, nor have they identified any provision that was objectionable or outside of
ad reached.
Timing of This Application for a TRO and Preliminary Injunction
Upon information and belief, Plaintiffs are aware that my daughter, Anna Smith,
who serves as trustee to the Theodore P. Smith Income Only Irrevocable Trust, and Dan Sebastian
have been participating in a rock and mineral show in Arizona, and they literally departed from
My daughter, Anna Smith, and Dan Sebastian play an important role in the
Because they are traveling with an inventory of minerals, they are required to drive
Upon information and belief, Plaintiffs are also well aware that my staffing at the
the filing of this action (and the seeking by Order to
Show Cause of a TRO) purposely to occur while my daughter and Dan are on the road so as to
s.
My attorney spoke with, and wrote to, Plaintiffs’ attorney today to request
respectfully that the application for a TRO be removed from the Order to Show Cause to allow for
the litigation to proceed in a fair and orderly manner and also to prevent causing terrible damage
to my business and, more importantly, to prevent causing serious disruption to the vacation plans
2257275.v1
My attorney has explained to Plaintiffs’ counsel more than once that the operation
This lawsuit, and in particular, the seeking of a suddenly imposed TRO, is a
For example, on or about April 2, 2021, Plaintiff Michael Smith reported that his
father, Jay Smith, intended to place himself at the entrance to the Ace of Diamonds on opening
weekend to harass ou r arrival by attempting to charge them separate entrance or
My attorney was required to prepare and send to Plaintiffs’ counsel a Cease-and-
More recently, upon information and belief, Plaintiffs have removed Ace’s signage
which had been commissioned just last year and placed on certain parcels with their permission,
These steps were taken after my attorney had previously informed Plaintiffs that I
amaged.
I would like to redeploy the signage to other locations to assist local tourists and
our guests in learning about and navigating to the Ace of Diamonds facility, and Plaintiffs’
Shortly before commencing this action, Plaintiffs’ counsel and my counsel had
or dividing the Property.
ther.
2257275.v1
Indeed, only a few days ago, on April 14, 2021, Plaintiffs’ counsel informed us that
he had received a partition proposal from his client and that he would be sharing it with us after he
Then, yesterday, instead of receiving the promised partition proposal, we received
– completely out of the blue -- a surreptitious last-minute email from plaintiffs’ counsel notifying
us of a sudden, about-face decision to discontinue discussions over a voluntary partition, and to
and unnecessarily disruptive and harmful TRO.
All of this follows Plaintiffs’ refusal to consummate an agreement in principle that
ement.
As set forth throughout this affidavit, and as the email string attached as Exhibit E
makes clear, Plaintiffs are not suffering any irreparable damages that would justify a TRO. Indeed,
Nor is there any urgency to the relief Plaintiffs are seeking. Ace of Diamonds is
doing nothing different today on the Property than it has been doing on the Property for many
As mentioned above, the minerals can be found throughout the Property, which can
be partitioned easily, with Plaintiffs obtaining the full benefit of any mining activity that they wish
The business operations of Ace of Diamonds can be readily accommodated on a
2257275.v1
I believe Plaintiffs have ulterior and vindictive motives for seeking a judicial sale
of the Property. Among possibly other things, they simply seek to put Ace of Diamonds out of
pport my family.
I respectfully request that the Court strike the proposed Temporary Restraining
Order from the Order to Show Cause so that this action can proceed in an orderly manner without
Plaintiffs have not demonstrated a likelihood of success on the merits, nor have
they demonstrated that a balancing of the equities works in their favor. Indeed, to the contrary,
given the fact that I have earned my livelihood by operating Ace of Diamonds for decades under
the arrangement described above, and the fact that our guests would be unnecessarily disappointed
and harmed by having their summer visits to Ace of Diamonds abruptly curtailed, the equities
work decidedly in favor of denying preliminary injunctive relie
Under the circumstances of this case, the equities weigh in favor of allowing
Ace of Diamonds to continue serving its guests as they have come to enjoy over the years while
this litigation is resolved in court.
I respectfully request that the Court deny plaintiffs’ request for a TRO and establish
instead a briefing schedule that affords both sides the opportunity to present their full case to the
Court in a thoughtful and complete manner to allow the Court to resolve the legal and factual issues
Finally, to the extent any preliminary injunctive relief is sought, I respectfully
request a hearing to allow the Court to hear evidence on the many disputed facts that exist in this
case. In many significant instances, Plaintiffs’ allegations’ in the Verified Complaint are
2257275.v1
materially incorrect, and the contentions, motivations, and overall credibility of Christopher Smith
and Michael Smith (the parties who executed the Verified Complaint) must be tested and resolved
through cross-examination and the introduction of other evidence that will refute their incorrect
factual assertions.
Accordingly, all of the relief sought in Plaintiffs’ Order to Show Cause and their
2257275.v1
Preview
SUPREME COURT COUNTY OF HERKIMER CHRISTOPHER SMITH AND MICHAEL SMITH AS TRUSTEES OF THE JAY AND PATRICIA SMITH AFFIDAVIT IN OPPOSITION TO TRO AND PRELIMINARY Plaintiffs, INJUNCTION v. THEODORE P. SMITH INCOME ONLY Defendant. STATE OF NEW YORK ) : ss.: COUNTY OF HERKIMER ) THEODORE P. SMITH, as beneficiary of the Theodore P. Smith Income Only Irrevocable The Ace of Diamonds Mine & Campground LLC (“Ace of Diamonds”) is open to I earn my livelihood and support my family by operating Ace of Diamonds on the Property (as defined in the Verifi is owned by The Jay and Patricia Smith Irrevocable Trust and the Theodore P. Smith Income Only Irrevocable Trust, as tenants in At no point has my operation of Ace of Diamonds ever impeded any desired use of 2257275.v1 The amount of herkimer diamond quartz crystals that the public extracts from the mine is de minimus when looking at the overall value of the property and amount of minerals st. Many guests have already made reservations (even for camping dates in October) To abruptly close our tourist mine to the public without notice would be catastrophic to our business and to our customers that have already planned their trip to the mine (some have undoubtedly already purchased plane tickets, reserved hotel rooms, purchased With regard to “commercial” mining at the Property, Tom Dillon and I assist them by using a dump truck and excavator, but I do not engage in the I remove dirt overburden using the excavator. This dirt is then put in the haul truck Dan and/or Tom use a pneumatic drill to place inch-and-three-quarter holes about Dan and/or Tom then place a hand-held hydraulic rock splitter into the drill holes. This cracks the rock. I then use the jackhammer attachment on the excavator to further loosen the rock. The rock is then scooped up and put on the haul truck and relocated elsewhere in 2257275.v1 the mine. Some rock is crushed on site to create crushed gravel for maintaining the The drilling/splitting process continues until the "pocket layer" is reached. This is the layer where the larger crystals are extracted by Tom and Dan. There are "pockets" of crystals at the same layer throughout the entire mine (pockets are generally 3 to 5 feet apart but are consistently found at the same layer throughout entire Property. The crystals are then placed into buckets for The layer below the "pocket layer" is known as the "ledge layer". Tom and Dan also mine this layer as this is where the smaller jewelry quality crystals are typically located. The ledge layer is approximately 3 to 5 feet thick. Tom and Dan break up the "ledge layer" by hand to find the crystals, which is a very slow and time Tom and Dan's discarded rocks are then placed on the haul truck and dumped on the tourist tailings pile. In general, new material is added to the tourist pile on er week). In a typical year, only a total of approximately 2,000 square feet of rock is mined Last year, 2020, there was increased tourist activity that was occasioned by the Given the large amount of crystals contained on and throughout the entire Property, the amount of crystals extracted from the commercial mining area in any given year is extremely small. 2257275.v1 The ability to add "fresh" rock to the tourist piles is a critical component of our business operations as many customers visit our mine solely based on this fact (this is a competitive ). The Gift Shop We also have a gift shop on site where we sell the Hekrimer Diamond quartz We have developed a reputation for having one of the most comprehensive and interesting gift shops in the region and some people travel to our property just to shop in the store. ed Materially In the Operation of Ace of Diamonds My brothers, Jay and Peter Smith, have operated their own businesses in Herkimer other, Jay Smith, and myself, as co-tenants, I am the only Smith brother that continued the Ace of Diamonds Jay and Peter Smith devoted their careers to other business enterprises. Over the years, Ace of Diamonds has paid all of the expenses associated with maintaining the Property. For example, Ace of Diamonds has paid all insurance, all village, county, and school property taxes, all utilities, and all of the expenses associated with repairs and improvements to the Property, with the minor exception of some improvements that began last year and the property tax bills this year (which were made pursuant to the agreement in principle that I had reached with my brother, Jay Smith pending finalization of the written co-tenant agreement). 2257275.v1 To the extent Plaintiffs allege that they paid over $25,000 in expenses over the years, these improvements were made only within the past year and were either in contemplation of their development of other adjacent and nearby parcels that they owned with me or merely to create supporting evidence for Plaintiff’s argument for purposes of this litigation. Plaintiff’s Until very recently, Plaintiffs were interested in a joint venture with Ace of Diamonds to develop and operate a larger campground with more amenities on separate parcels across the highwa I offered to pay Mike for his time spent on the Property last year, but he refused payment, repeatedly indicating that he “just wanted to help.” Plaintiffs even admit that the materials were conveyed at cost to Ace of Diamonds, meaning Plaintiffs did not pay for their cost. To the extent Plaintiffs assisted with overburden removal, this was the first assistance ever provided in that regard and it was only removed for the purpose of providing fill for the Since approximately 2013, I have paid Plaintiffs $21,000.00 per year, under duress, for essentially a license to operate Ace of Diamonds without their infringement, even though I was There is plenty of room on the Property with good frontage and road access for Plaintiffs’ allegations in the Verified Complaint that, among other things, (i) over the years, the Trust (as defined in the Verified Complaint) has provided numerous improvements 2257275.v1 Verified Complaint, ¶ 17), or (ii) the Property cannot be partitioned without causing “massive disruption” to the Ace of Diamonds business ( .,at ¶ 27), or (iii)mineral pockets cannot be divided in accordance with the parties’ proportionate shares of the Property ( .), or (iv) Ace of Diamonds will increase the intensity of commercial mineral extraction on the Property ( ., at ¶ 33), or (v) the “commercial” mining taking place on the Property will deplete the Property’s most valuable pockets of minerals or cause irreparable harm to the viability of the tourist mining and campground operations of the Ace of Diamonds business ( ., at ¶¶ 34-35), are all wildly untrue, and this will be proven during the course of this litigation. At no point have Plaintiffs ever displayed any interest in taking on the daily In the Spring of 2020, Plaintiffs began objecting to an alleged increase in commercial mining activity, and they also began requesting increased payments on a going I negotiated extensively over the terms of Plaintiffs’ demands, and we reached an I requested my attorney to prepare a draft co-tenant agreement containing the terms My attorney shared the draft tenant-in-common agreement with Plaintiffs’ counsel. For reasons which have never been explained by Plaintiffs or their attorney, Plaintiffs refused to sign the tenant-in-common agreement that I had prepared at my expense to 2257275.v1 To this date, Plaintiffs have not offered any comments on the draft tenant-in- common agreement, nor have they identified any provision that was objectionable or outside of ad reached. Timing of This Application for a TRO and Preliminary Injunction Upon information and belief, Plaintiffs are aware that my daughter, Anna Smith, who serves as trustee to the Theodore P. Smith Income Only Irrevocable Trust, and Dan Sebastian have been participating in a rock and mineral show in Arizona, and they literally departed from My daughter, Anna Smith, and Dan Sebastian play an important role in the Because they are traveling with an inventory of minerals, they are required to drive Upon information and belief, Plaintiffs are also well aware that my staffing at the the filing of this action (and the seeking by Order to Show Cause of a TRO) purposely to occur while my daughter and Dan are on the road so as to s. My attorney spoke with, and wrote to, Plaintiffs’ attorney today to request respectfully that the application for a TRO be removed from the Order to Show Cause to allow for the litigation to proceed in a fair and orderly manner and also to prevent causing terrible damage to my business and, more importantly, to prevent causing serious disruption to the vacation plans 2257275.v1 My attorney has explained to Plaintiffs’ counsel more than once that the operation This lawsuit, and in particular, the seeking of a suddenly imposed TRO, is a For example, on or about April 2, 2021, Plaintiff Michael Smith reported that his father, Jay Smith, intended to place himself at the entrance to the Ace of Diamonds on opening weekend to harass ou r arrival by attempting to charge them separate entrance or My attorney was required to prepare and send to Plaintiffs’ counsel a Cease-and- More recently, upon information and belief, Plaintiffs have removed Ace’s signage which had been commissioned just last year and placed on certain parcels with their permission, These steps were taken after my attorney had previously informed Plaintiffs that I amaged. I would like to redeploy the signage to other locations to assist local tourists and our guests in learning about and navigating to the Ace of Diamonds facility, and Plaintiffs’ Shortly before commencing this action, Plaintiffs’ counsel and my counsel had or dividing the Property. ther. 2257275.v1 Indeed, only a few days ago, on April 14, 2021, Plaintiffs’ counsel informed us that he had received a partition proposal from his client and that he would be sharing it with us after he Then, yesterday, instead of receiving the promised partition proposal, we received – completely out of the blue -- a surreptitious last-minute email from plaintiffs’ counsel notifying us of a sudden, about-face decision to discontinue discussions over a voluntary partition, and to and unnecessarily disruptive and harmful TRO. All of this follows Plaintiffs’ refusal to consummate an agreement in principle that ement. As set forth throughout this affidavit, and as the email string attached as Exhibit E makes clear, Plaintiffs are not suffering any irreparable damages that would justify a TRO. Indeed, Nor is there any urgency to the relief Plaintiffs are seeking. Ace of Diamonds is doing nothing different today on the Property than it has been doing on the Property for many As mentioned above, the minerals can be found throughout the Property, which can be partitioned easily, with Plaintiffs obtaining the full benefit of any mining activity that they wish The business operations of Ace of Diamonds can be readily accommodated on a 2257275.v1 I believe Plaintiffs have ulterior and vindictive motives for seeking a judicial sale of the Property. Among possibly other things, they simply seek to put Ace of Diamonds out of pport my family. I respectfully request that the Court strike the proposed Temporary Restraining Order from the Order to Show Cause so that this action can proceed in an orderly manner without Plaintiffs have not demonstrated a likelihood of success on the merits, nor have they demonstrated that a balancing of the equities works in their favor. Indeed, to the contrary, given the fact that I have earned my livelihood by operating Ace of Diamonds for decades under the arrangement described above, and the fact that our guests would be unnecessarily disappointed and harmed by having their summer visits to Ace of Diamonds abruptly curtailed, the equities work decidedly in favor of denying preliminary injunctive relie Under the circumstances of this case, the equities weigh in favor of allowing Ace of Diamonds to continue serving its guests as they have come to enjoy over the years while this litigation is resolved in court. I respectfully request that the Court deny plaintiffs’ request for a TRO and establish instead a briefing schedule that affords both sides the opportunity to present their full case to the Court in a thoughtful and complete manner to allow the Court to resolve the legal and factual issues Finally, to the extent any preliminary injunctive relief is sought, I respectfully request a hearing to allow the Court to hear evidence on the many disputed facts that exist in this case. In many significant instances, Plaintiffs’ allegations’ in the Verified Complaint are 2257275.v1 materially incorrect, and the contentions, motivations, and overall credibility of Christopher Smith and Michael Smith (the parties who executed the Verified Complaint) must be tested and resolved through cross-examination and the introduction of other evidence that will refute their incorrect factual assertions. Accordingly, all of the relief sought in Plaintiffs’ Order to Show Cause and their 2257275.v1