FILED: SCHOHARIE COUNTY CLERK 01/25/2022 05:48 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 2022-3
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`RECEIVED NYSCEF: 01/25/2022
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`FEDERAL NATIONAL MORTGAGE ASSOCIATION
`(“FANNIE MAE”) A CORPORATION ORGANIZED
`AND EXISTING UNER THE LAWS OF THE
`UNITED STATES OF AMERICA,
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`Plaintiff,
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`FRED DUFEK, JR.; ROBIN DUFEK; LAURIE
`DUFEK; TROY DUFEK,
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`Defendant(s).
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`ANSWER
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`Index No. 2022-3
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`SUPREME COURT OF THE STATE OF NEW YORK
`SCHOHARIE COUNTY
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` Defendants Troy Dufek, Laurie Dufek, Fred Dufek and Robin Dufek, by and through their
`counsel, Charles Wallshein, answer the complaint as follows:
`1. Defendants deny the allegations contained in complaint paragraphs numbered “5”, “6”,
`“7”, “8”, “9”, “10”. “11”, “12”, “13”, “14”, “16”, “17”, “18”. “19”, “20”, “22”, “23”, “24”,
`“26”, “27”, “28”. “30”, “32” and “33”.
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`AS AND FOR DEFENDANTS’ FIRST AFFIRMATIVE DEFENSE
` TO THE FIRST CAUSE OF ACTION
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`2. The referee’s deed that vests title in the Plaintiff transfers title to Lots 3 and 4.
`3. Lot “4” abuts Bassler Road for an approximate distance of approximately 600 feet.
`4. Plaintiff’s characterization of lot “3” as “landlocked” is in error. Plaintiff has title to Lot
`“4”.
`5. Plaintiff has access and ingress and egress to lots 3 and 4 directly from Bassler Road.
`6. Plaintiff’s demand for an easement of any kind to be created at equity is without merit.
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`AS AND FOR DEFENDANTS’ FIRST AFFIRMATIVE DEFENSE
`TO THE SECOND CAUSE OF ACTION
`7. Defendants repeat and reallege all statements of fact contained in Paragraphs numbered
`“1” through “6” as if fully set forth herein.
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`FILED: SCHOHARIE COUNTY CLERK 01/25/2022 05:48 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 2022-3
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`RECEIVED NYSCEF: 01/25/2022
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`8. An easement of Necessity is only permitted when a property is landlocked. Easements by
`necessity are unwarranted where the access to the property is merely inconvenient.
`9. The Plaintiff has full ingress and egress to lots “3” and “4” directly from Bassler Road
`separate and apart from the easement demanded across lot “12”.
`10. Plaintiff states that it took title to both lots “3” and “4” in the complaint by the referee’s
`deed at paragraph numbered “24”.
`11. Plaintiff attaches the survey of adjoining lots 3, 4, and 12 to its complaint.
`12. Plaintiff fails to attach the referee’s deed as an exhibit to the complaint.
`13. Plaintiff’s complaint must be dismissed based upon documentary evidence in the public
`land record.
`AS AND FOR DEFENDANTS’ SECOND AFFIRMATIVE DEFENSE
`TO THE SECOND CAUSE OF ACTION
`14. Defendants repeat and reallege all statements of fact contained in Paragraphs numbered
`“1” through “13” as if fully set forth herein.
`15. The gate barricade described by Plaintiff does not bar Plaintiff’s ingress and egress to the
`subject property.
`16. The Plaintiff has full ingress and egress to lots “3” and “4” directly from Bassler Road
`separate and apart from the easement demanded across lot “12”.
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`AS AND FOR DEFENDANTS’ FIRST AFFIRMATIVE DEFENSE
`TO THE THIRD CAUSE OF ACTION
`17. Defendants repeat and reallege all statements of fact contained in Paragraphs numbered
`“1” through “16” as if fully set forth herein.
`18. Plaintiff has failed to plead unity of title with particularity.
`19. Plaintiff has failed to plead the imposition of a permanent servitude of one estate upon that
`of another.
`20. The Plaintiff has full ingress and egress to lots “3” and “4” directly from Bassler Road
`separate and apart from the easement demanded across lot “12”.
`21. Plaintiff states that it took title to both lots “3” and “4” in the complaint by the referee’s
`deed at paragraph numbered “24”.
`22. There is no legal basis for the imposition of an easement by implication.
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`FILED: SCHOHARIE COUNTY CLERK 01/25/2022 05:48 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 2022-3
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`RECEIVED NYSCEF: 01/25/2022
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`AS AND FOR DEFENDANTS’ FIRST AFFIRMATIVE DEFENSE
`TO THE FOURTH CAUSE OF ACTION
`23. Defendants repeat and reallege all statements of fact contained in Paragraphs numbered
`“1” through “22” as if fully set forth herein.
`24. Plaintiff’s fourth cause of action requests a declaratory judgment but fails to describe the
`declaratory relief sought that could provide a legal remedy.
`25. Plaintiff states that it took title to both lots “3” and “4” in the complaint by the referee’s
`deed at paragraph numbered “24”.
`26. The Plaintiff has full ingress and egress to lots “3” and “4” directly from Bassler Road
`separate and apart from the easement demanded across lot “12”.
`27. Plaintiff’s fourth cause of action fails to state a cause of action for which relief could be
`granted.
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`AS AND FOR DEFENDANTS’ FIRST AFFIRMATIVE DEFENSE
`TO THE FIFTH CAUSE OF ACTION
`28. Defendants repeat and reallege all statements of fact contained in Paragraphs numbered
`“1” through “27” as if fully set forth herein.
`29. Plaintiff has not been damaged in any respect and is not entitled to attorney’s fees, costs
`disbursements.
`30. The Plaintiff has full ingress and egress to lots “3” and “4” directly from Bassler Road
`separate and apart from the easement demanded across lot “12”.
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`AS AND FOR DEFENDANTS’ SECOND AFFIRMATIVE DEFENSE
`TO ALL CAUSES OF ACTION
`31. Defendants repeat and reallege all statements of fact contained in Paragraphs numbered
`“1” through “30” as if fully set forth herein.
`32. The Summons and Complaint in the foreclosure action was filed on November 9, 2015.
`33. CPLR §214(4) provides a statute of limitation of three (3) years barring the commencement
`of the instant action from the date of the commencement of the foreclosure action by Fannie
`Mae. More than 17 years lapsed since the date of the mortgage.
`34. CPLR §212(a) provides a statute of limitation of ten (10) years barring the instant action
`calculated from the date of the commencement of the foreclosure action by Fannie Mae.
`Plaintiff has never had possession or use of the property claimed in this action.
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`FILED: SCHOHARIE COUNTY CLERK 01/25/2022 05:48 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 2022-3
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`RECEIVED NYSCEF: 01/25/2022
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`35. CPLR §213(1) provides a statute of limitation of Six (6) years barring the instant action
`calculated from the date of the commencement of the foreclosure action by Fannie Mae. At the
`time of the foreclosure, Plaintiff had actual knowledge of the existence of the use of the
`property by permission. More than 6 years has elapsed since the Plaintiff claimed an interest
`by the filing of its notice of pendency in the property claimed in this action.
`36. Plaintiff has allowed the statute of limitations to expire on both statutes.
`37. At all times Plaintiff knew that it did not need an easement for ingress and egress to the
`mortgaged lots “3” and “4”.
`38. The instant action sounding in trespass and for an equitable easement is time barred.
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`AS AND FOR DEFENDANTS’ THIRD AFFIRMATIVE DEFENSE
`TO ALL CAUSES OF ACTION
`39. Defendants repeat and reallege all statements of fact contained in Paragraphs numbered
`“1” through “30” as if fully set forth herein.
`40. Defendants Fred Dufek and Robin Dufek are in possession of the parcel of land identified
`herein as Lot 12 and refuse to allow access across Lot “12” to Lots “3” and “4”.
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`WHEREFORE, Defendants demand that the Complaint be dismissed and that the Court grant
`such other and further relief as the Court may deem just equitable and proper.
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`Dated: January 25, 2022
` Melville, NY
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`___/S/_______________
`Charles Wallshein, Esq.
`Law Office of Charles Wallshein, Esq. PLLC
`Attorney for All Defendants Dufek
`35 Pinelawn Road, Suite 106E
`Melville, NY 11747
`631-824-6555
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`To: David Gallo & Assoc. LP
`47 Hillside Avenue, 2nd Floor
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`Manhasset, NY 11030
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`516 269-7607
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`Charles Wallshein Esq. affirms that he has personal knowledge of the facts and circumstances that
`form the basis for the denials and defenses in this action. Any defenses or other statements of fact
`in the answer that are not based upon facts contained in the public land record or are admitted in
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`FILED: SCHOHARIE COUNTY CLERK 01/25/2022 05:48 PM
`NYSCEF DOC. NO. 13
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`INDEX NO. 2022-3
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`RECEIVED NYSCEF: 01/25/2022
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`other pleadings are made upon information and belief and upon personal interviews with the
`defendants.
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`___/S/__________________
`Charles Wallshein, Esq.
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