Party Notice: Christopher Smith, Michael Smith As Trustees, Of The Jay And Patricia Smith Irrevocable Trust v. Theodore P. Smith Income Only Irrevocable Trust, Smith J Anna AS TRUSTEE, Smith Jane Anna AS EXECUTOR, Estate Of Theodore P Smith BY EXECUTOR

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                                FILED: HERKIMER COUNTY CLERK 06/07/2021 03:50 PM                                          INDEX NO. EF2021-108166
NYSCEF DOC. NO. 46                                                                   RECEIVED NYSCEF: 06/07/2021




         STATE OF NEW YORK
         SUPREME COURT         COUNTY OF HERKIMER
                                                 X
          CHRISTOPHER SMITH AND MICHAEL SMITH AS                       Hon. John H Crandall
          TRUSTEES OF THE JAY AND PATRICIA SMITH
          IRREVOCABLE TRUST,
                                                                       NOTICE OF CROSS-MOTION
                                       Plaintiffs,

                         v.                                            Index No. EF2021-108166

          THEODORE P. SMITH INCOME ONLY
          IRREVOCABLE TRUST,

                                       Defendant.


                PLEASE TAKE NOTICE that upon the annexed Affirmation of Richard A. Frankel,

         Esq., affirmed on the 7th day of June, 2021, upon the Affidavit of Anna Smith, sworn to on 7th

         day of June, 2021, and upon all of the pleadings, proceedings, motions and affidavits had herein,

         the undersigned, counsel for Defendant, THEODORE P. SMITH INCOME ONLY

         IRREVOCABLE TRUST, will move this Honorable Court at the Herkimer County Office & Court

         Facility, 301 N. Washington Street, Herkimer, New York 13350 on June 10, 2021 at 2:00 p.m. of

         that day or as soon thereafter as counsel can be heard, for an Order, pursuant to CPLR 2215 and

         CPLR 6314:

                       a. Immediately vacating the TRO, allowing the case to proceed in
                          accordance with the provisions of RPAPL § 993;

                       b. Scheduling a hearing before the Court to determine the amount
                          of damages owed to Defendant for all lost revenues and harm to
                          goodwill caused by the TRO;

                       c. in the alternative, modifying the TRO to allow for Defendant to
                          continue to mine at historical levels, allow tourists to mine
                          through the use of the tailings in the Ace of Diamonds business
                          enterprise, allow for newly mined 2021 Herkimer Diamonds for
                          sale with an easily identifiable marking pending the final




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FILED: HERKIMER COUNTY CLERK 06/07/2021 03:50 PM                                          INDEX NO. EF2021-108166
NYSCEF DOC. NO. 46                                                                   RECEIVED NYSCEF: 06/07/2021




                          determination of this proceeding, and to also permit the sale in
                          the gift shop of minerals acquired outside of the Property; and

                       d. granting Defendant such other relief as this Court deems just and
                          proper.

         Dated: June 7, 2021
         Albany, New York
                                                     Respectfully submitted,

                                                     RIVKIN RADLER LLP
                                                     Attorneysfor Defendant,
                                                     Theodore P. Smith Income Only Irrevocable Trust

                                              By:
                                                     Richard A. Frankel, Esq.
                                                     RIVKIN RADLER LLP
                                                     Attorneysfor Defendant,
                                                     Theodore P. Smith Income Only Irrevocable Trust
                                                     66 South Pearl Street, 11th Floor
                                                     Albany, New York 12207
                                                     (518) 462-3000


         TO:    Brody D. Smith, Esq.
                BOND, SCHOENECK & KING, PLLC
                Attorneysfor Plaintiffs
                Office and P.O. Address
                One Lincoln Center
                Syracuse, New York 13202-1355
                (315) 218-8225




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