Preview
FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM INDEX NO. 127103-2020
NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022
Ontario County Clerk Recording Page
Return To Matthew .J. Hoose, County Clerk
Ontario County Clerk
20 Ontario Street
Canandaigua, New York 14424
(585) 396-4200
Document Type: RECORD ON APPEAL Receipt Number: 587082
(COPY)
Plaintiff
FIELDS ENTERPRISES INC BRISTOL HARBOUR VILLAGE ASSN
INC
Fees
Control #: 202201060013
Total Fees Paid: $0.00
Index #: 127103-2020
State of New York
County of Ontario
EFiling through NYSCEF with a total page count of
101.
Ontario County Clerk
Thissheet cc...: the Clerk's÷ñdcrsem5ñt r¤quiredby section 319 of theReal Property Law of theStateof New York
PK
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Plaintiffs'
Reply to CountercIdims, dated August 19, 2020
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{FiTBffT"UNTARIO COUNTY CLERK 08/19/2020 03 : 50 PMI
NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/19/2020
FOURTEENTH AFFIRMATIVE DEFENSE
126. Based on BHVA recording of Map 36716 in Ontario County Clerk's Office that
notes FEI's ownership of the Stairway Parcel, BHVA ratified FEI's ownership of the Stairway
Parcel.
B_FTEENTH AFFIRMATIVE DEFENSE
127. Plaintiffsreserve the right to add additional affirmà tive and other defenses as
additional facts are discovered.
Dated: August 19, 2020 NIXON PEABODY LLP
Rochester, New York
By: /s/Eric M Ferrante
Eric M. Ferrante,Esq.
Carolyn G. Nussbaum, Esq.
1300 Clinton Square
Rochester, New York 14604
Tel.: (585) 263-1000
eferrante@nixonpeabody.com
enussbsu-. nixonpeabody.com
Co-Counsel for Plaintiffs Fields
Enterprises, Inc. and BristolHarbour
Marina, LLC
GOLDBERG SEGALLA LLP
Marc W. Brown, Esq.,
665 Main Street
Buffalo, New York 14203
Tel.: (716) 566-5400
mwbrcwn@goldbersegalla.com
Co-Counsel for PlaintiffsFields
Enterprises, Inc. and Bristol Harbour
Marina, LLC
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Proposed Order to Show Cause for Preliminary Injunction with Temporary Restraining Order,
filed May 18, 2020
|FILED: ONTARIO COUNTY CLERK 05/18 /2020 10T04 MDEX NO. 127103-2020
Ali
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/18/2020
202005180060 Index#:127103-2020
Present: Hon. J. Scott Odorisi, J.S.C.
Justice Presiding
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONTARIO
FIELDS ENTERPRISES INC., and ORDER TO SHOW
BRISTOL HARBOUR MARINA, LLC, CAUSE FOR
PRELIMINARY
Plaintiffs, INJUNCTION WITH
- vs - TEMPORARY
RESTRAINING ORDER
BRISTOL HARBOUR VILLAGE ASSOCIATION, INC.,
127103-2020
Index No.
Defendant.
Upon the annexed Affirmation of Eric M. Ferrante, affirmed on May 18, 2020, together
with the exhibits annexed thereto; the Affidavit of Jeremy Fields, sworn to on May 17, 2020, and
the exhibits annexed thereto; the Affidavit of Mark Buckley, sworn to on May 17, 2020; the
Affidavit of Daniel Loncto, sworn to on May 17, 2020; the Affidavit of Dale Stoker, sworn to
May 17, 2020; and allother pleadings and proceedings heretofore had herein, and sufficient
cause being shown, itis hereby:
ORDERED that Defendant Bristol Harbour Village Association, Inc. ("BHVA"), show
cause at a hearing before this Court to be held at_:00 a.m./p.m. on __, 2020,
Hall of Justice, 99 Ey-chenge Boulevard, Rochester, NY 14614, or as soon thereafter as c0üñsel
can be heard, why an order should not be granted pursuant to CPLR 6301:
1. Temporarily, preliminarily, and/or permanently enjoiñiñg and restraining BHVA
and itsofficers, directors, attorneys, agents, employees, servants, affiliates,
partners or entitiesthat are controlled by or acting on itsbehalf from directly or
indirectly:
a. Terminating or attempting to terminate or suspcñd or interfere with
Plaintiffs Fields Enterprises Inc. and Bristol Harbour Marina, LLC's
(collectively, "Plaintiffs") and their invitees'-which invitees shall
include but shall not be limited to Non-Villager Members and their
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NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022
Proposed Order to Show Cause for Prelirninary.Injunction with Temporary Restraining Order,
filed May 18, 2020
mWeas.1mm02% o2 o
IFi"151El1""UNTARIO COUNTY CLERK 05 / 18 / 2 02 0 10 : 0 4 AM|
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/18/2020
guests-use of the Elevator and Staircaseto access the Marina Parcel and
the Marina; and
b. Taking any action torestrict,preclude, block, or interferewith inany
away access oruse of any portion of the Marina Parcel or Marina by
Plaintiffsor their invitees-which invitees shallinclude but shallnot be
limited to Non-Villager Members and their guests-access to or use of
any portion of the Marina Parcel and theMarina; and
c. Terminating or attempting toterminate or suspend or interferewith, or
taking any action to restrict,
preclude, block or interfere with in any way
Plaintiffs'
access to the Security System.
2. Awarding Plaintiffssuch other and further reliefas thisCourt deems just and
proper; and itishereby
FURTHER ORDERED that pending the hearing on this Order to Show Cause:
l. BHVA and its officers,directors, attorneys, agents, employees, servants,
affiliates,partners or entitiesthat are controlled by or acting on itsbehalf are
enjoined and restrained from, directly or indirectly:
a. Terminating orattempting to terminate or suspend or interferewith
Plaintiffs'
and their invitees'-which invitees shallinclude but shallnot
be limited to Non-Villager Members and their guests-use of the Elevator
and Staircaseto access the Marina Parcel and theMarina; and
b. Taking any action torestrict,preclude, block, or interferewith inany
away access oruse of any portion of the Marina Parcel orMarina by
Plaintiffsor their invitees-which invitees shallinclude but shallnot be
limited to Non-Villager Members and their guests-access to or use of
any portion of the Marina Parcel and the Marina; and
c. Terminating orattempting to terminate or suspend or interferewith, or
taking any action torestrict,preclude, block or interferewith inany way
Plaintiffs'
access to the Security System.
ORDERED that service of a copy of this Order to Show Cause and supporting papers
shall be made upon BHVA by delivery to counsel, Melanie Sl=ý± Wolk, Trevett Cristo P.C.,
2 State Street, Suite 1000, Rochester, NY 14614, via electronic mail or hañd-delivery, or,in the
event that Ms. Slaughter no longer represents to memhar of the BHVA
BHVA, by delivery any
Board of Directors via electronic mail or hand delivery, on or before May _, 2020, and such
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NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022
Proposed Order to Show Cause for Preliminary Injunction with Temporary Restraining Order,
filed May 18, 2020
COUNTY CLERK 0 5 / 18 2 0 2 0 10 : 0 4¯]i INdBAeWGC.12F201-gQ20!020
/
5CEF DOC. NO. 5 RECEIVED NYSCEF: 05/18/2020
service shallbe decmcd good and sufficientservice of thisOrder to Show Cause and the papers
upon which the same is granted; and it isfurther
ORDERED, that BHVA shallfileand serve any answering or opposition papers, ifany,
on or before __, 2020, by filing and servicevia NYSCEF; and it isfurther
ORDERED, that Plaintiffsshall fileand serve any reply papers via NYSCEF, in further
support of theirapplication on or before __, 2020.
Dated: May __, 2020
Hon. J.Scott Odorisi, J.S.C.
ENTER:
4836-4399-6348
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Affirmation of Eric M. Ferrante in Support of Temporary Restraining Order and
Attorney
Preliminary Injunction, dated May 18, 2020
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[_FILED: ONTARIO TOUNTY CLERK 0 5 /18 / 2 0 2 0 10 : 04 AM|
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/18/ 2 02 0
202005180061 Index# : 127103-2020
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONTARIO
ATTORNEY
FIELDS ENTERPRISES INC., and
AFFIRMATION IN
BRISTOL HARBOUR MARINA, LLC,
SUPPORT OF
EMORARY
Plaintiffs
'
RESTRAINING ORDER
AND PRELIMINARY
INJUNCTION
BRISTOL HARBOUR VILLAGE ASSOCIATION, INC.,
Index No.
Defendant.
ERIC M. FERRANTE, an attorney admined to practicein theCourts of this State,
under the penalty of perjury, affirms the fellówing to be true:
1. I am counsel forPlaintiffsFields Enterprises Inc. ("FEI") and Bristol Harbour
("BHM" Afhnation
Marina, LLC and, collectively with FEI, "Plaintiffs")and I make this based
I'laintiffs'
upon my personal knowledge of the matters statedherein and in support of applicatieñ
fora tersparary restraining order and prdimim-y injunction.
2. Plaintiffsare reqü:±ng immediate injüñctive reliefto msiñuin the statusquo and
to prevent Defendañt BristolHarbour Village Association, Inc. ("BHVA") from interfering with
Plaintiffs' PlaintifR'
access to marina by .mic-mas. BHVA has threatened to take actionsto
Plaintiffs' Plaintiffs'
preclude or prohibit customers who are scmbers of privatemarina but who
do not livein theBristol Harbour Village from using the elevator that isthe only point of access
Plaintiffs'
to marina.
Plaintiffs'
3. A true and correct copy of Complaint (without exhibits) in thisactionis
attached hereto as Exhibit A.
4. A true and correct copy of BHVA's Offering Sttmcet dated July 2, 1971, as it
existedon BHVA's website on May 17, 2020, including the Original Declaration and Agreement
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NYSCEF DOC. NO.Affirmation
235 of Eric M.
RECEIVED NYSCEF: 01/11/2022
Attorney Ferrante in Support of Temporary Restraining Order and
Preliminary Injunction, dated May 18, 2020
lFff.IBU ""UNTARIO COUNTY CLERK 0 5 /18 2 0 2 0 10 : 04 INdBieWB.12Fj01-802%020
/ AM|
NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/18/2020
of Covenants, Easements, Charges, and Liens (the "Original Declaration"), isattached hereto as
Exhibit B.
5. The original Declaration includes as Exhibit A a descriptionof property located
Plaintiffs'
within the BristolHarbour Village (the "Village"). Upon information and belief,
in·1 idingtheirmarina that is thesubject of this was builton the land shown on
property, dispute,
Exhibit A to the Original Declaration.
6. BHVA amcaded the Original Declaration in 2009 and some of the deGnitians
contained therein were changed.
7. A trueand correct copy of BHVA's Restated and Amended Declaratiün of
Cóvenants, Ensements, Charges and Liens, dated October 3, 2009 (the "Restated Declaration")
as itexistedon BHVA's website on May 17, 2020, isattached hereto as Exhibit C.
Plaintiffs'
8. The factsand circumstances supperting application for a temporary
restrainingorder and preliminavy injmEtien are setforth in detailin theaccompanying Affidavit
of Jeremy Fields,sworn to on May 17, 2020; the Affidavitof Mark Buulticy, sworn to on May
17, 2020; the Affidavit of Daniel Loncto, sworn to on May 17, 2020; and the Affidavit of Dale
Stoker, sworn to on May 17, 2020. Therefore, the factswill not be recited again here.
Plaintiffs'
9. The request forrelief made in Order to Show Cause isthe firstsuch
request made in thisor any other Court.
Affirmed this 18th
day of May, 2020 /s/Eric M Ferrante
Eric M. Ferrante
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NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022
Exhibit A:Plaintiffs'Summohsand Complaint, dated May 18, 2020
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EXHIBIT A
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Plaintiffs'
Exhibit A: Summons and Cornplaint, dated May 18, 2020
PLAINTIFFS'
EXHIBIT A: SUMMONS
AND COMPLAINT, DATED MAY 18, 2020
REPRODUCED AT R.34 TO R.60
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NYSCEF DOC.
ExhibitB: NO. Bristol
235 Harbour VillageAssociation, Inc. Offering Statement, RECEIVED
dated NYSCEF:
July 2, 01/11/2022
1971
[FILED: COUNTY INDEX NO. 127103-2020
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NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/18/2020
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EXHIBIT B
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NYSCEF DOC.
Exhibit NO.
B: 235
Bristol Harbour Village Association, Inc. Offering Statement, RECEIVED
dated NYSCEF:
July 2, 01/11/2022
1971
EXHIBIT B: BRISTOL HARBOUR VILLAGE
ASSOCIATION, INC. OFFERING STATEMENT,
DATED JULY 2, 1971
REPRODUCED AT R.61 TO R.142
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NYSCEF DOC. NO. C:235 RECEIVED NYSCEF: 01/11/2022
Exhibit Bristol Harbour Village Restated and Amended Declaration of Covenants,
Easements, Charges and Liens, dated October 3, 2009
I FILED: ONTARIO COUNTY INDEX NO. 127103-2020
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EXHIBIT C
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NYSCEF DOC.
ExhibitNO.C: 235
Bristol Harbour Village Restated and Amended
RECEIVED
Declaration of
NYSCEF: 01/11/2022
Covenants,
Easements, Charges and Liens, dated October 3, 2009
EXHIBIT C: BRISTOL HARBOUR VILLAGE
RESTATED AND AMENDED DECLARATION
OF COVENANTS, EASEMENTS, CHARGES,
AND LIENS, DATED OCTOBER 3, 2009
REPRODUCED AT R.145 TO R.204
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NYSCEF DOC. NO. 235 Order
RECEIVED
and
NYSCEF: 01/11/2022
Affidavit of Jeremy Fields in Support Of Temporary Restraining Preliminary Injunction,
dated May 17, 2020
INDEX NO. 127103-2020
IFILED : ÓNTARIO COUNTY CLERK 05/18/2020 10:04 A160
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/18/202 0
202005180064 ! Index
# : 127103-2020
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONTARIO
FIELDS ENTERPRISES INC., and AFFIDAVIT IN
BRISTOL HARBOUR MARINA, LLC, SUPPORT OF
TEMPORARY
Plaintiffs,RESTRAINING ORDER
- vs- AND PRELIMINARY
INJUNCTION
BRISTOL HARBOUR VILLAGE ASSOCIATION, INC.,
127103-2020
Index No.
Defendant.
STATE OF NEW YORK )
) ss.:
COUNTY OF ONTARIO )
JEREMY FIELDS, being duly sworn, deposes and says:
1. I am over the age of eighteen and I reside in Ontario County, New York. I am the
sha.reheldac ("
sole and member of PlaintiffsFields Enterprises Inc. ") and Bristol Harbour
("BHM"
Marina, LLC and, collectively with FEI, "Plaintiffs")and I make thisaffidavit in
Plaintiffs'
support of applicaticñ for a temporary restrainingorder and preliminary injunction
(the"Application") in theabove-captioned action. This affidavitisbased upon my personal
knewledge of thematters setforth herein unless statedto be upon information and beliefand, as
to those matters statedtobeuponinformationand belief,I believe them to be true.
A. PhMMM Own and Operate a Marina Located Inside the Village and Rent Boat
Slipsto Catamers Who Live in the Village and toCustomers Who Do Not Live in
the Village.
2. Plaintiffsown andoperatethe Bristol Harbour Marina (the "Marina") located
within the BristolHarbour Village (the "Village").1 The Marina islocated lakeside on a parcel
I
The Marina was built
initially by theVillage's Sponsor (as hereinafterdefined) in thel970sas
the BristolHarbour Village Yacht Club.
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FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM
NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022
Affidavit of Jeremy Fields in Support of Temporary Order and Injunction,
Restraining Preliminary
dated May 17, 2020
(Ff6M"UNTARIO COUNTY CLERK 0 5 /18 / 2 0 2 0 10 : 0 4 AM|
™®® 2 02 O
NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/18/2020
. .
+/- 1,200' Ca-
of landhaving appmvimately of deeded sheeline along a Lake that is
owned in fee simple by FEI (the "Marina Parcel").
3. A true and correct copy of a survey reflecting the location of the Marina Parcel is
attached hereto as Exhibit A.
4. FEI acquired the Marina Parcel in 2016 via deed from BristolHarbour Resort
Property Holdings, LLC, the successor in interest
of the feetitlechain tracing through to the
Village's original sponsor, South BristolResorts, LLC (the "Sponsor").
5. While FEl owns the realproperty associated with the Marina, BHM operates the
Marina pursuant to an operating agreement with FEI.
6. The Marina iscurrently home to,interalia, 164 boat slips available for seasonal
rentalfrom May 15 through October 15.
c--·d-- -°---
7. Historically, the Marina has rented boat slipsto owners of lots,
units,and/or to-Acuses within the Village (collectively,"Villagers") and to non-Villager
makes of the general public ("Non-Villager Members").
8. Plaintiffsrent the Marina's boat slipsto Villagers and Non-Villager Members
pursuant to written license agreements (the "Slip Rental Contracts"). Depending on the size of
one's boat, a Slip Rental Contract costs between $2,000 and $2,600 for the
Preview
FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM INDEX NO. 127103-2020 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022 Ontario County Clerk Recording Page Return To Matthew .J. Hoose, County Clerk Ontario County Clerk 20 Ontario Street Canandaigua, New York 14424 (585) 396-4200 Document Type: RECORD ON APPEAL Receipt Number: 587082 (COPY) Plaintiff FIELDS ENTERPRISES INC BRISTOL HARBOUR VILLAGE ASSN INC Fees Control #: 202201060013 Total Fees Paid: $0.00 Index #: 127103-2020 State of New York County of Ontario EFiling through NYSCEF with a total page count of 101. Ontario County Clerk Thissheet cc...: the Clerk's÷ñdcrsem5ñt r¤quiredby section 319 of theReal Property Law of theStateof New York PK 1 of 101 202201060013 Index NO. INDEX #: 127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022 Plaintiffs' Reply to CountercIdims, dated August 19, 2020 INdB 9E%.127203-80202020 {FiTBffT"UNTARIO COUNTY CLERK 08/19/2020 03 : 50 PMI NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/19/2020 FOURTEENTH AFFIRMATIVE DEFENSE 126. Based on BHVA recording of Map 36716 in Ontario County Clerk's Office that notes FEI's ownership of the Stairway Parcel, BHVA ratified FEI's ownership of the Stairway Parcel. B_FTEENTH AFFIRMATIVE DEFENSE 127. Plaintiffsreserve the right to add additional affirmà tive and other defenses as additional facts are discovered. Dated: August 19, 2020 NIXON PEABODY LLP Rochester, New York By: /s/Eric M Ferrante Eric M. Ferrante,Esq. Carolyn G. Nussbaum, Esq. 1300 Clinton Square Rochester, New York 14604 Tel.: (585) 263-1000 eferrante@nixonpeabody.com enussbsu-. nixonpeabody.com Co-Counsel for Plaintiffs Fields Enterprises, Inc. and BristolHarbour Marina, LLC GOLDBERG SEGALLA LLP Marc W. Brown, Esq., 665 Main Street Buffalo, New York 14203 Tel.: (716) 566-5400 mwbrcwn@goldbersegalla.com Co-Counsel for PlaintiffsFields Enterprises, Inc. and Bristol Harbour Marina, LLC - 14 - 14 of 14 R.301 2 of 101 202201080013 Index NO. INDEX #: 127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022 Proposed Order to Show Cause for Preliminary Injunction with Temporary Restraining Order, filed May 18, 2020 |FILED: ONTARIO COUNTY CLERK 05/18 /2020 10T04 MDEX NO. 127103-2020 Ali NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/18/2020 202005180060 Index#:127103-2020 Present: Hon. J. Scott Odorisi, J.S.C. Justice Presiding STATE OF NEW YORK SUPREME COURT COUNTY OF ONTARIO FIELDS ENTERPRISES INC., and ORDER TO SHOW BRISTOL HARBOUR MARINA, LLC, CAUSE FOR PRELIMINARY Plaintiffs, INJUNCTION WITH - vs - TEMPORARY RESTRAINING ORDER BRISTOL HARBOUR VILLAGE ASSOCIATION, INC., 127103-2020 Index No. Defendant. Upon the annexed Affirmation of Eric M. Ferrante, affirmed on May 18, 2020, together with the exhibits annexed thereto; the Affidavit of Jeremy Fields, sworn to on May 17, 2020, and the exhibits annexed thereto; the Affidavit of Mark Buckley, sworn to on May 17, 2020; the Affidavit of Daniel Loncto, sworn to on May 17, 2020; the Affidavit of Dale Stoker, sworn to May 17, 2020; and allother pleadings and proceedings heretofore had herein, and sufficient cause being shown, itis hereby: ORDERED that Defendant Bristol Harbour Village Association, Inc. ("BHVA"), show cause at a hearing before this Court to be held at_:00 a.m./p.m. on __, 2020, Hall of Justice, 99 Ey-chenge Boulevard, Rochester, NY 14614, or as soon thereafter as c0üñsel can be heard, why an order should not be granted pursuant to CPLR 6301: 1. Temporarily, preliminarily, and/or permanently enjoiñiñg and restraining BHVA and itsofficers, directors, attorneys, agents, employees, servants, affiliates, partners or entitiesthat are controlled by or acting on itsbehalf from directly or indirectly: a. Terminating or attempting to terminate or suspcñd or interfere with Plaintiffs Fields Enterprises Inc. and Bristol Harbour Marina, LLC's (collectively, "Plaintiffs") and their invitees'-which invitees shall include but shall not be limited to Non-Villager Members and their R.302 3 of 101 202201060013 Index NO. INDEX #:127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022 Proposed Order to Show Cause for Prelirninary.Injunction with Temporary Restraining Order, filed May 18, 2020 mWeas.1mm02% o2 o IFi"151El1""UNTARIO COUNTY CLERK 05 / 18 / 2 02 0 10 : 0 4 AM| NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 05/18/2020 guests-use of the Elevator and Staircaseto access the Marina Parcel and the Marina; and b. Taking any action torestrict,preclude, block, or interferewith inany away access oruse of any portion of the Marina Parcel or Marina by Plaintiffsor their invitees-which invitees shallinclude but shallnot be limited to Non-Villager Members and their guests-access to or use of any portion of the Marina Parcel and theMarina; and c. Terminating or attempting toterminate or suspend or interferewith, or taking any action to restrict, preclude, block or interfere with in any way Plaintiffs' access to the Security System. 2. Awarding Plaintiffssuch other and further reliefas thisCourt deems just and proper; and itishereby FURTHER ORDERED that pending the hearing on this Order to Show Cause: l. BHVA and its officers,directors, attorneys, agents, employees, servants, affiliates,partners or entitiesthat are controlled by or acting on itsbehalf are enjoined and restrained from, directly or indirectly: a. Terminating orattempting to terminate or suspend or interferewith Plaintiffs' and their invitees'-which invitees shallinclude but shallnot be limited to Non-Villager Members and their guests-use of the Elevator and Staircaseto access the Marina Parcel and theMarina; and b. Taking any action torestrict,preclude, block, or interferewith inany away access oruse of any portion of the Marina Parcel orMarina by Plaintiffsor their invitees-which invitees shallinclude but shallnot be limited to Non-Villager Members and their guests-access to or use of any portion of the Marina Parcel and the Marina; and c. Terminating orattempting to terminate or suspend or interferewith, or taking any action torestrict,preclude, block or interferewith inany way Plaintiffs' access to the Security System. ORDERED that service of a copy of this Order to Show Cause and supporting papers shall be made upon BHVA by delivery to counsel, Melanie Sl=ý± Wolk, Trevett Cristo P.C., 2 State Street, Suite 1000, Rochester, NY 14614, via electronic mail or hañd-delivery, or,in the event that Ms. Slaughter no longer represents to memhar of the BHVA BHVA, by delivery any Board of Directors via electronic mail or hand delivery, on or before May _, 2020, and such - 2- R.303 4 of 101 202201060013 Index NO. INDEX #:127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022 Proposed Order to Show Cause for Preliminary Injunction with Temporary Restraining Order, filed May 18, 2020 COUNTY CLERK 0 5 / 18 2 0 2 0 10 : 0 4¯]i INdBAeWGC.12F201-gQ20!020 / 5CEF DOC. NO. 5 RECEIVED NYSCEF: 05/18/2020 service shallbe decmcd good and sufficientservice of thisOrder to Show Cause and the papers upon which the same is granted; and it isfurther ORDERED, that BHVA shallfileand serve any answering or opposition papers, ifany, on or before __, 2020, by filing and servicevia NYSCEF; and it isfurther ORDERED, that Plaintiffsshall fileand serve any reply papers via NYSCEF, in further support of theirapplication on or before __, 2020. Dated: May __, 2020 Hon. J.Scott Odorisi, J.S.C. ENTER: 4836-4399-6348 R.304 5 of 101 202201060013 Index NO. INDEX #:127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022 Affirmation of Eric M. Ferrante in Support of Temporary Restraining Order and Attorney Preliminary Injunction, dated May 18, 2020 INDEX NO. 127103-2020 [_FILED: ONTARIO TOUNTY CLERK 0 5 /18 / 2 0 2 0 10 : 04 AM| NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/18/ 2 02 0 202005180061 Index# : 127103-2020 STATE OF NEW YORK SUPREME COURT COUNTY OF ONTARIO ATTORNEY FIELDS ENTERPRISES INC., and AFFIRMATION IN BRISTOL HARBOUR MARINA, LLC, SUPPORT OF EMORARY Plaintiffs ' RESTRAINING ORDER AND PRELIMINARY INJUNCTION BRISTOL HARBOUR VILLAGE ASSOCIATION, INC., Index No. Defendant. ERIC M. FERRANTE, an attorney admined to practicein theCourts of this State, under the penalty of perjury, affirms the fellówing to be true: 1. I am counsel forPlaintiffsFields Enterprises Inc. ("FEI") and Bristol Harbour ("BHM" Afhnation Marina, LLC and, collectively with FEI, "Plaintiffs")and I make this based I'laintiffs' upon my personal knowledge of the matters statedherein and in support of applicatieñ fora tersparary restraining order and prdimim-y injunction. 2. Plaintiffsare reqü:±ng immediate injüñctive reliefto msiñuin the statusquo and to prevent Defendañt BristolHarbour Village Association, Inc. ("BHVA") from interfering with Plaintiffs' PlaintifR' access to marina by .mic-mas. BHVA has threatened to take actionsto Plaintiffs' Plaintiffs' preclude or prohibit customers who are scmbers of privatemarina but who do not livein theBristol Harbour Village from using the elevator that isthe only point of access Plaintiffs' to marina. Plaintiffs' 3. A true and correct copy of Complaint (without exhibits) in thisactionis attached hereto as Exhibit A. 4. A true and correct copy of BHVA's Offering Sttmcet dated July 2, 1971, as it existedon BHVA's website on May 17, 2020, including the Original Declaration and Agreement 1 of 2 R.305 6 of 101 202201030013 Index NO. INDEX #:127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. NO.Affirmation 235 of Eric M. RECEIVED NYSCEF: 01/11/2022 Attorney Ferrante in Support of Temporary Restraining Order and Preliminary Injunction, dated May 18, 2020 lFff.IBU ""UNTARIO COUNTY CLERK 0 5 /18 2 0 2 0 10 : 04 INdBieWB.12Fj01-802%020 / AM| NYSCEF DOC. NO. 6 RECEIVED NYSCEF: 05/18/2020 of Covenants, Easements, Charges, and Liens (the "Original Declaration"), isattached hereto as Exhibit B. 5. The original Declaration includes as Exhibit A a descriptionof property located Plaintiffs' within the BristolHarbour Village (the "Village"). Upon information and belief, in·1 idingtheirmarina that is thesubject of this was builton the land shown on property, dispute, Exhibit A to the Original Declaration. 6. BHVA amcaded the Original Declaration in 2009 and some of the deGnitians contained therein were changed. 7. A trueand correct copy of BHVA's Restated and Amended Declaratiün of Cóvenants, Ensements, Charges and Liens, dated October 3, 2009 (the "Restated Declaration") as itexistedon BHVA's website on May 17, 2020, isattached hereto as Exhibit C. Plaintiffs' 8. The factsand circumstances supperting application for a temporary restrainingorder and preliminavy injmEtien are setforth in detailin theaccompanying Affidavit of Jeremy Fields,sworn to on May 17, 2020; the Affidavitof Mark Buulticy, sworn to on May 17, 2020; the Affidavit of Daniel Loncto, sworn to on May 17, 2020; and the Affidavit of Dale Stoker, sworn to on May 17, 2020. Therefore, the factswill not be recited again here. Plaintiffs' 9. The request forrelief made in Order to Show Cause isthe firstsuch request made in thisor any other Court. Affirmed this 18th day of May, 2020 /s/Eric M Ferrante Eric M. Ferrante - 2- 4851-2216-6460 2 of 2 R.306 7 of 101 4V44U I UDUU I O FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM INDEXIndex NO.#: 127103-2020 127103-2020 NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022 Exhibit A:Plaintiffs'Summohsand Complaint, dated May 18, 2020 INDEX NO. 127103-2020 [FILED: ONTARIO COUNTY CLERK 05/18/2020 10:04 AMI NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/18/2020 202006180062 Index # : 127103-2020 EXHIBIT A R.307 8 of 101 202201060013 Index NO. INDEX #:127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022 Plaintiffs' Exhibit A: Summons and Cornplaint, dated May 18, 2020 PLAINTIFFS' EXHIBIT A: SUMMONS AND COMPLAINT, DATED MAY 18, 2020 REPRODUCED AT R.34 TO R.60 R.308 9 of 101 202201060013 INDEXIndex NO. #: 127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. ExhibitB: NO. Bristol 235 Harbour VillageAssociation, Inc. Offering Statement, RECEIVED dated NYSCEF: July 2, 01/11/2022 1971 [FILED: COUNTY INDEX NO. 127103-2020 ONTARIO CLERK NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 05/18/2020 202005180062 Index # : 127103-2020 EXHIBIT B R.309 10 of 101 202201060013 Index NO. INDEX #: 127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. Exhibit NO. B: 235 Bristol Harbour Village Association, Inc. Offering Statement, RECEIVED dated NYSCEF: July 2, 01/11/2022 1971 EXHIBIT B: BRISTOL HARBOUR VILLAGE ASSOCIATION, INC. OFFERING STATEMENT, DATED JULY 2, 1971 REPRODUCED AT R.61 TO R.142 R.310 11 of 101 202zu ; CS0013 Index NO. INDEX #: 127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. NO. C:235 RECEIVED NYSCEF: 01/11/2022 Exhibit Bristol Harbour Village Restated and Amended Declaration of Covenants, Easements, Charges and Liens, dated October 3, 2009 I FILED: ONTARIO COUNTY INDEX NO. 127103-2020 CLERK 05/18/2020 10:04 AM liiSCEF DOC. NO. 9 RECEIVED NYSCEF: 05/18/2020 202005180063 Index # : 127103-2020 EXHIBIT C R.311 12 of 101 202201060013 Index NO. INDEX #: 127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. ExhibitNO.C: 235 Bristol Harbour Village Restated and Amended RECEIVED Declaration of NYSCEF: 01/11/2022 Covenants, Easements, Charges and Liens, dated October 3, 2009 EXHIBIT C: BRISTOL HARBOUR VILLAGE RESTATED AND AMENDED DECLARATION OF COVENANTS, EASEMENTS, CHARGES, AND LIENS, DATED OCTOBER 3, 2009 REPRODUCED AT R.145 TO R.204 R.312 13 of 101 2022010S0013 Index NO. INDEX #:127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. NO. 235 Order RECEIVED and NYSCEF: 01/11/2022 Affidavit of Jeremy Fields in Support Of Temporary Restraining Preliminary Injunction, dated May 17, 2020 INDEX NO. 127103-2020 IFILED : ÓNTARIO COUNTY CLERK 05/18/2020 10:04 A160 NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/18/202 0 202005180064 ! Index # : 127103-2020 STATE OF NEW YORK SUPREME COURT COUNTY OF ONTARIO FIELDS ENTERPRISES INC., and AFFIDAVIT IN BRISTOL HARBOUR MARINA, LLC, SUPPORT OF TEMPORARY Plaintiffs,RESTRAINING ORDER - vs- AND PRELIMINARY INJUNCTION BRISTOL HARBOUR VILLAGE ASSOCIATION, INC., 127103-2020 Index No. Defendant. STATE OF NEW YORK ) ) ss.: COUNTY OF ONTARIO ) JEREMY FIELDS, being duly sworn, deposes and says: 1. I am over the age of eighteen and I reside in Ontario County, New York. I am the sha.reheldac (" sole and member of PlaintiffsFields Enterprises Inc. ") and Bristol Harbour ("BHM" Marina, LLC and, collectively with FEI, "Plaintiffs")and I make thisaffidavit in Plaintiffs' support of applicaticñ for a temporary restrainingorder and preliminary injunction (the"Application") in theabove-captioned action. This affidavitisbased upon my personal knewledge of thematters setforth herein unless statedto be upon information and beliefand, as to those matters statedtobeuponinformationand belief,I believe them to be true. A. PhMMM Own and Operate a Marina Located Inside the Village and Rent Boat Slipsto Catamers Who Live in the Village and toCustomers Who Do Not Live in the Village. 2. Plaintiffsown andoperatethe Bristol Harbour Marina (the "Marina") located within the BristolHarbour Village (the "Village").1 The Marina islocated lakeside on a parcel I The Marina was built initially by theVillage's Sponsor (as hereinafterdefined) in thel970sas the BristolHarbour Village Yacht Club. 1 of 8 R.313 14 of 101 202201060013 Index NO. INDEX #: 127103-2020 127103-2020 FILED: ONTARIO COUNTY CLERK 01/06/2022 08:47 AM NYSCEF DOC. NO. 235 RECEIVED NYSCEF: 01/11/2022 Affidavit of Jeremy Fields in Support of Temporary Order and Injunction, Restraining Preliminary dated May 17, 2020 (Ff6M"UNTARIO COUNTY CLERK 0 5 /18 / 2 0 2 0 10 : 0 4 AM| ™®® 2 02 O NYSCEF DOC. NO. 10 RECEIVED NYSCEF: 05/18/2020 . . +/- 1,200' Ca- of landhaving appmvimately of deeded sheeline along a Lake that is owned in fee simple by FEI (the "Marina Parcel"). 3. A true and correct copy of a survey reflecting the location of the Marina Parcel is attached hereto as Exhibit A. 4. FEI acquired the Marina Parcel in 2016 via deed from BristolHarbour Resort Property Holdings, LLC, the successor in interest of the feetitlechain tracing through to the Village's original sponsor, South BristolResorts, LLC (the "Sponsor"). 5. While FEl owns the realproperty associated with the Marina, BHM operates the Marina pursuant to an operating agreement with FEI. 6. The Marina iscurrently home to,interalia, 164 boat slips available for seasonal rentalfrom May 15 through October 15. c--·d-- -°--- 7. Historically, the Marina has rented boat slipsto owners of lots, units,and/or to-Acuses within the Village (collectively,"Villagers") and to non-Villager makes of the general public ("Non-Villager Members"). 8. Plaintiffsrent the Marina's boat slipsto Villagers and Non-Villager Members pursuant to written license agreements (the "Slip Rental Contracts"). Depending on the size of one's boat, a Slip Rental Contract costs between $2,000 and $2,600 for the