FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`SUPREME COURT OF THE STATE OF NEW YORK
`COUNTY OF SCHOHARIE
`
`FEDERAL NATIONAL MORTGAGE ASSOCIATION
`(“FANNIE MAE”) A CORPORATION ORGANIZED
`AND EXISTING UNER THE LAWS OF THE UNITED
`STATES OF AMERICA,
`
`
`
`Index No. 2022-3
`
`Plaintiff,
`
`
`
`-against-
`
`
`
`FRED DUFEK, JR.; ROBIN DUFEK; LAURIE DUFEK;
`TROY DUFEK,
`
`Defendant(s).
`
`
`AFFIRMATION IN SUPPORT
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ROBERT M. LINK, ESQ., an attorney duly admitted to practice law in the Courts of the
`
`State of New York, duly deposes and says:
`
`1.
`
`I am a partner of David A. Gallo & Associates, LLP, counsel for the Plaintiff
`
`FEDERAL NATIONAL MORTGAGE ASSOCIATION (“FANNIE MAE”) A CORPORATION
`
`ORGANIZED AND EXISTING UNER THE LAWS OF THE UNITED STATES OF AMERICA.
`
`2.
`
`This affirmation is in support of Plaintiff’s Order to Show Cause for an Order (1)
`
`granting summary judgment against the Defendants, FRED DUFEK, JR.; ROBIN DUFEK;
`
`LAURIE DUFEK; TROY DUFEK, (2) for a permanent injunction restraining and enjoining the
`
`Defendants from interfering with Plaintiff’s Property by preventing access through constructed
`
`fences, signage threatening violence, cameras, and locks to prevent the use of Plaintiff’s Property;
`
`(3) During the pendency of this action, a preliminary injunction to enjoin and restrain Defendants
`
`from the acts set forth above; (4) A declaratory judgment finally determining the rights and
`
`obligations of the respective parties with respect to the Subject Premises and Lot 12; (5) A
`
`permanent easement by necessity allowing ingress and egress from the Subject Premises to Bassler
`
`Road through Lot 12; (6) A permanent easement by implication allowing ingress and egress from
`
`1 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`the Subject Premises to Bassler Road through Lot 12; (7) Alternatively, a temporary easement for
`
`the limited purpose of facilitating the eviction proceedings and to explore the construction of an
`
`alternative ingress and egress to the landlocked Lot 3. (8) Compensatory damages in a sum to be
`
`determined at trial; (9) Exemplary damages in a sum to be determined at trial; (10) Costs of suit
`
`including but not limited to reasonable attorney fees; (11) That plaintiff has such other and further
`
`relief as may be just and proper.
`
`3.
`
`Accompanying this motion is the Affidavit of Fact of Sgt. J. McCoy of Schoharie
`
`County Sheriff’s Department.
`
`4.
`
`Also accompanying this motion is the Affidavit of Daniel J. Card associate broker
`
`at A-1 REO Services, LLC, the property manager for FANNIE MAE AKA FEDERAL
`
`NATIONAL MORTGAGE ASSOCIATION with respect to the premises known as 208 Bassler
`
`Road, Middleburgh, New York 12122.
`
`5.
`
`This Court also has broad authority to take judicial notice of public records and/or
`
`facts determined in the foreclosure action under Schoharie County Supreme Court Index Number:
`
`2015-573. See, e.g., Jacobs v. Law Offices of Leonard N. Flamm, No. 04-CV-7607 (DC), 2005 WL
`
`1844642, at 3 (S.D.N.Y. July 29, 2005) (“In cases where some of those factual allegations have
`
`been decided otherwise in previous litigation, ... a court may take judicial notice of those
`
`proceedings.”). See also, Bentley v. Dennison, 852 F. Supp. 2d 379, 382 n.5 (S.D.N.Y.2012) citing
`
`Ruffins v. Dep't of Corr. Servs., 701 F. Supp. 2d 385, 390 n.2 (E.D.N.Y. 2010) (“Judicial notice of
`
`public records is appropriate—and does not convert a motion to dismiss into a motion for summary
`
`judgment—because the facts noticed are not subject to reasonable dispute and are capable of being
`
`verified by sources whose accuracy cannot be reasonably questioned.”); See also, People v.
`
`2 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`Lawrence, 111 Misc. 2d 1027, 1033 n.8, 447 N.Y.S.2d 793 (App. Term 2d & 11th Dists. 1981)
`
`(Facts that are “widely known” are subject to judicial notice).
`
`6.
`
`Fannie Mae is the owner of the Subject Property commonly known as 208 Bassler
`
`Road, Middleburgh, New York 12122 (Section: 119, Block: 3, Lot: 3 & 4).
`
`7.
`
`Fannie Mae owns the Property pursuant to a Referee’s Deed dated April 21, 2017,
`
`and recorded in the Office of the Schoharie County Clerk on June 19, 2017, under Document
`
`#720738, Book 1047, Page 124, which was obtained in a foreclosure action under Schoharie
`
`County Supreme Court Index Number: 2015-573. A copy of the Referee’s Deed is annexed hereto
`
`as Exhibit C.
`
`8.
`
`Defendants, FRED DUFEK, JR., ROBIN DUFEK, LAURIE DUFEK, TROY
`
`DUFEK, are possible occupants of 208 Bassler Road, Middleburgh, New York, and former owners
`
`pursuant to a Deed dated September 7, 1995, from Edward G. Smith and Lynda G. Smith to Fred
`
`Dufek, Jr. and Robin Dufek, his wife, recorded November 21, 1995 in Liber 588, Page 31 (See,
`
`Exhibit D), and a Deed dated July 5, 2012, from Fred Dufek, Jr. and Robin Dufek, husband
`
`and wife, to Troy Dufek and Laurie Dufek, husband and wife, recorded July 20, 2012 in
`
`Liber 937, Page 237. A copy of the 2012 deed is annexed hereto as Exhibit E.
`
`9.
`
`Defendants FRED DUFEK, JR., ROBIN DUFEK, are also owners of the
`
`neighboring parcel, which adjacent to the Subject Premises and Bassler Road, and is commonly
`
`identified as Lot 12 (“Lot 12”), pursuant to a Deed dated December 20, 2006, and recorded March
`
`12, 2007 in Document Number 467235, Book 831, Page 287. A copy of the Lot 12 Deed is
`
`annexed hereto as Exhibit F.
`
`10.
`
`Plaintiff owns an easement appurtenant that benefits the real property commonly
`
`known as 208 Bassler Road, Middleburgh, New York.
`
`3 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`11.
`
`Plaintiff is entitled to an easement as the Referee’s Deed pursuant to the foreclosure
`
`under Schoharie County Supreme Court Index Number: 2015-573 created a severance of the unity
`
`of title which gives rise to the easement.
`
`12.
`
`Plaintiff obtained a Judgment and Warrant of Eviction on or about August 22, 2018.
`
`Execution of the Warrant was stayed until September 21, 2018. See, the Judgment and Warrant
`
`annexed hereto as Exhibit G.
`
`13.
`
`Defendants, FRED DUFEK, JR. and ROBIN DUFEK, are the owners of real
`
`property subject to the easement.
`
`14.
`
`That property known as Lot 12 includes a driveway along the outer edge of the
`
`premises that serves as the only egress between Bassler Road and Lot 3, which includes the
`
`residence at 208 Bassler Road, Middleburgh, New York 12122. A copy of the tax map
`
`evidencing the relevant Tax Lots is annexed hereto as Exhibit H.
`
`ARGUMENT
`
`SUMMARY JUDGMENT
`
`15.
`
`The Court must grant summary judgment where the movant establishes the claim
`
`by tender of evidentiary proof in admissible form sufficiently to warrant the court as a matter of
`
`law to direct judgment in its favor. Rodriguez v. City of New York, 31 N.Y.3d 312, 317
`
`(2018); Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 N.Y.2d 1065, 416
`
`(1979). In determining the motion, the Court must be mindful that summary judgment should not
`
`be granted when the parties, through documentary evidence, show that a factual dispute exists
`
`which necessitates a trial on the evidence presented by the respective parties. Rotuba Extruders,
`
`Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978).
`
`16.
`
`Defendants’ Answer includes several affirmative defenses to causes of action for an
`
`easement but counsel’s arguments can be summarized as follows: (1) the Plaintiff is not entitled to
`
`4 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`an easement because “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”; (2) plaintiff failed to fully
`
`plead its causes of action; and (3) the statute of limitations operates to prevent Fannie Mae from
`
`requesting an easement to facilitate the eviction. As illustrated, these purported defenses are neither
`
`supported by the law nor operate to further delay the enforcement of this court’s Orders.
`
`17.
`
`For instance, Defendants’ Answer at Paragraph (4) in support of its First
`
`Affirmative Defense is misguided in its assertion that Plaintiff should not be extended an easement
`
`because its “characterization of lot “3” as “landlocked” is in error. Plaintiff has title to Lot “4.””
`
`For variations on this argument see also, Defendants’ Answer at Paragraphs (8), (9), (15), (16),
`
`(20), (21), (25), (26), (30), and (37).
`
`18.
`
`Defendants’ Answer is misleading at best. As explained in the attached Card
`
`Affidavit: “Lot 3 cannot be accessed through Lot 4 because, to the extent a narrow hiking path
`
`exists, even walking access is prevented by challenging terrain and overgrown trees and shrubbery.
`
`Moreover, even on Lot 4, the Defendants have installed chains, gates, and signage stating that
`
`trespassers will be shot.” See also, Exhibit B.
`
`19.
`
`Sergeant McCoy’s Affidavit similarly explains: “For practical purpose there is a
`
`single point of access from Bassler Road to 208 Bassler Road which would allow vehicular travel
`
`(ie a moving truck) [at Lot 12]. This entry point is blocked by a gate with numerous signs on it
`
`stating “no trespassing”.”
`
`20.
`
`The affiants’ testimony is supported by the public records kept by the Schoharie
`
`County Clerk. See, e.g., Map Viewer, 2018 NYS Digital Orthoimagery, which shows a single
`
`means of ingress/egress over Lot 12 and impassable terrain at Lot 4. See, e.g., Schoharie County
`
`Map Viewer (schohariecounty-ny.gov)
`
`5 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`21.
`
`Although Defendants baselessly argue to the contrary, Plaintiff’s entitlement to an
`
`easement is not contingent upon a showing that egress through the “narrow hiking path…
`
`challenging terrain and overgrown trees… and chains, gates, and signage stating that trespassers
`
`will be shot…” is impossible. See, e.g., Monte v. Di Marco, 192 A.D.2d 1111 (4d Dept. 1993)
`
`(“continuation of the use, especially with respect to the sewer line, was reasonably necessary to
`
`their beneficial enjoyment of their property”). [Emphasis added].
`
`PLAINTIFF IS ENTITLED TO AN EASEMENT BY NECESSITY
`
`22.
`
`In this case, the foreclosure auction under Schoharie County Supreme Court Index
`
`Number: 2015-573, transferred ownership of the residence on Lot 3 to the Plaintiff. Once the
`
`transfer of ownership occurred, the portion of the land owned by the common grantor, specifically
`
`the driveway on Lot 12, which serves as the only ingress/egress to Bassler Road and created by
`
`operation of law a permanent easement favoring the conveyed portion.
`
`23.
`
`Defendants continuously use Lot 12 to access the residence on Lot 3, undermining
`
`and rendering ineffectual this Court’s Judgment of Foreclosure obtained under Schoharie County
`
`Supreme Court Index Number: 2015-573, and the Warrant of Eviction granted in the Holdover
`
`Proceeding brought before the Town of Middleburgh Justice Court.
`
`24.
`
`Under New York law, an easement of necessity requires the Plaintiff show (1) a
`
`unity and subsequent separation of title and (2) at the time of severance an easement over
`
`Defendant’s property was absolutely necessary. See, e.g., Stock v. Ostrander, 233 A.D.2d 816 (3d
`
`Dept. 1996)
`
`25.
`
`The inquiry is based on the need for a way across the granted or reserved premises,
`
`rather than on an apparent, continuous, preexisting use. The easement is the result of the
`
`presumption that when a party conveys property, the party conveys whatever is necessary for the
`
`6 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`beneficial use of that property. See, e.g., Leonard v. Igoe, 178 Misc.2d. 385 (J. Graffeo, Feb. 1998).
`
`26.
`
`Although the easement “must exist in fact and not as a mere convenience”, courts
`
`routinely find an easement by necessity where the easement is indispensable to the reasonable use
`
`for the adjacent property. See, e.g., Heyman v. Biggs, 223 N.Y. 118 (1918).
`
`27.
`
`Here, public records establish the unity of title and subsequent separation of title.
`
`Prior to the foreclosure, Lots 3, 4, and 12 were owned by a common grantor, specifically the
`
`Defendants. The Referee’s deed separated title by transferring Lots 3 and 4 to Fannie Mae and
`
`caused the severance of the three lots. As a result, Lot 3 became landlocked and the Defendants
`
`restricted Plaintiff from accessing the Lot 12 driveway, the sole means of ingress/egress.
`
`28.
`
`These facts are not seriously in dispute. According to an affidavit of Sgt. J. McCoy
`
`of the Schoharie County Sheriff’s Office: “From research I have conducted at the County Tax
`
`Office the property appears to be land locked. For practical purpose there is a single point of access
`
`from Bassler Road to 208 Bassler Road which would allow vehicular travel (ie a moving truck).
`
`This entry point is blocked by a gate with numerous signs on it stating “no trespassing”. The Road
`
`frontage along Bassler Road in the property adjoining 208 Bassler road has been posted for trespass
`
`and a large portion of it is fenced. To access 208 Bassler Road to perform the eviction the private
`
`property of another person would have to be crossed. The property has been posted and personal
`
`property of its owner would have to be damaged in order to access the only possible roadway to
`
`the property to carry out the eviction. Extensive attempts were made at service of the warrant
`
`which was only able to be affixed when a gate was left open on a single occasion. Without a Court
`
`Order directing otherwise at the present time I am unable to carry out the eviction due to a lack of
`
`legal access to the property.” [Emphasis provided].
`
`29.
`
`If an easement is not granted, the intent of the Lot 12 driveway and usage of Lot 12
`
`7 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`will be severely undermined, the residence on Lot 3 will be entirely landlocked with no ingress
`
`or egress, and Defendants will successfully undermine the effect of this Court’s Order and
`
`Judgment.
`
`PLAINTIFF IS ENTITLED TO AN EASEMENT BY IMPLICATION
`
`In addition to an easement by necessity, as an alternative, there are ample grounds
`
`30.
`
`to find an easement by implication. An easement by implication exists because, during the period
`
`in which title was unified, a permanent and obvious servitude was imposed on one part of an estate
`
`in favor of another. The Lot 12 driveway, at the time of severance of title, remains in use and is
`
`reasonably necessary for the fair enjoyment of the residence located on Lot 3. As such, a grant of
`
`the right to continue such use was implied in the conveyance of the dominant estate.
`
`31.
`
`Under New York law, an implied easement will arise “upon severance of ownership
`
`when, during the unity of title, an apparently permanent and obvious servitude was imposed on
`
`one part of an estate in favor of another part, which servitude at the time of severance is in use and
`
`is reasonably necessary for the fair enjoyment of the other part of the estate”. See, e.g., Mobile
`
`Motivations, Inc. v. Lenches, 26 A.D.3d 558 (3d Dept. 2006), citing Minogue v. Monette, 551
`
`N.Y.S.2d 427 (3d Dept. 1990).
`
`32.
`
`Here, the Plaintiff is the Grantee of Lots 3 and 4 pursuant to a mortgage foreclosure
`
`against the Dufeks. The result of the foreclosure was a unity and subsequent severance of title with
`
`respect to the relevant parcels; specifically, denial of access to the only means of ingress/egress
`
`alongside the edge of Lot 12. During the period of unity of title, the Dufeks established a use in
`
`which Lot 12 was subordinated to Lot 3 by its use as a means of egress from Bassler Road to the
`
`residence. The Dufeks established such use by continuing to maintain the route as the only egress
`
`to Lot 3, even marking the egress with signs and fencing to show the use was meant to be
`
`8 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`permanent. Finally, without an egress from Bassler Road to Lot 3, the foreclosure judgment will
`
`be rendered obsolete, and Fannie Mae will be unfairly deprived of the value of the estate conveyed,
`
`which specifically requires access to the residence on Lot 3.
`
`33. Moreover, the public records show that an easement on Lot 12 will not substantially
`
`interfere with the private property rights of the Plaintiff as the driveway has continuously served
`
`to benefit egress and ingress for Lot 3, the driveway was intended to be permanent and is open
`
`and obvious, there is no residence on Lot 12, and the narrow driveway runs along the outer
`
`perimeter of Lot 12.
`
`34.
`
`If an easement is not granted, the intent of the Lot 12 driveway and usage of Lot 12
`
`will be severely undermined, and the residence on Lot 3 will be entirely landlocked with no
`
`ingress or egress.
`
`PLAINTIFF IS ENTITLED TO INJUNCTIVE RELIEF
`
`35.
`
`As an alternative relief, the Plaintiff should be granted a temporary easement for a
`
`minimum of one year, for the limited purpose of facilitating the eviction and exploring the
`
`construction of an alternative ingress and egress to the landlocked Lot 3.
`
`36.
`
`This Court’s prompt issuance of injunctive relief is necessary to prevent the
`
`Defendants from further frustrating the Order and Judgment of this Court and their inexcusable
`
`and prolonged interference with the Subject Premises.
`
`37.
`
`CPLR §6301 and §6312 generally set forth the relevant grounds and necessary
`
`evidence for a preliminary injunction in the instant matter.
`
` Grounds for Preliminary Injunction and Temporary
`§6301.
`Restraining Order.
`“A preliminary injunction may be granted in any action where it
`appears that the defendant threatens or is about to do, or is doing or
`procuring or suffering to be done, an act in violation of the plaintiff’s
`rights respecting the subject of the action, and tending to render the
`judgment ineffectual, or in any action where the plaintiff has
`
`9 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`demanded and would be entitled to a judgment restraining the
`defendant from the commission or continuance of an act, which, if
`committed or continued during the pendency of the action, would
`produce injury to the plaintiff.”
`
`
`
`CPLR §6312. Motion Papers; Undertaking; Issues of Fact.
`(a) Affidavit; other evidence. On a motion for a preliminary
`injunction the plaintiff shall show, by affidavit and such other
`evidence as may be submitted, that there is a cause of action, and
`either that the defendant threatens or is about to do, or is doing or
`procuring or suffering to be done, an act in violation of the plaintiff's
`rights respecting the subject of the action and tending to render the
`judgment ineffectual; or that the plaintiff has demanded and would
`be entitled to a judgment restraining the defendant from the
`commission or continuance of an act, which, if committed or
`continued during the pendency of the action, would produce injury
`to the plaintiff.
`
`
`
`37.
`
`It is generally accepted that a preliminary injunction requires the moving party
`
`establish the following: (1) the likelihood of success on the merits, (2) irreparable injury absent
`
`granting the preliminary injunction, and (3) a balancing of the equities in the movant's favor. Ying
`
`Fung Moy v. Hohi Umeki, 10 A.D.3d 604, (2nd Dept. 2004). In Ying Fung Moy, the Second
`
`Department explained the “purpose of a preliminary injunction is to maintain the status quo and
`
`prevent the dissipation of property that could render a judgment ineffectual.” Id.
`
`38.
`
`Furthermore, the Appellate Division in Ying Fung May held that “all that must be
`
`shown is the likelihood of success; conclusive proof is not required (See, Terrell v. Terrell, 279
`
`A.D.2d 301, 303). “[T]he mere fact that there indeed may be questions of fact for trial does not
`
`preclude a court from exercising its discretion in granting an injunction” (Egan v. New York Care
`
`Plus Ins. Co., 266 A.D.2d 600, 601), for “even when facts are in dispute, the nisi prius court can
`
`find that a plaintiff has a likelihood of success on the merits, from the evidence presented, though
`
`such evidence may not be ‘conclusive’ ” (Sau Thi Ma v. Xuan T. Lien, 198 A.D.2d 186, 187).”
`
`10 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`39.
`
`Additionally, in Egan v. New York Care Plus Ins. Co. Inc., the Third Department
`
`explained that a “likelihood of success on the merits “does not compel a demonstration that success
`
`on the merits is practically a certitude.” The Appellate Division continued stating “the mere fact
`
`that there indeed may be questions of fact for trial does not preclude a court from exercising its
`
`discretion in granting an injunction (see, CPLR 6312[c]; Sau Thi Ma v. Xuan T. Lien, 198 A.D.2d
`
`186, lv. dismissed 83 N.Y.2d 847).” See Egan, 266 A.D.2d 600 (3rd Dept. 1999).
`
`40.
`
`Under New York law, an easement is a property interest which equity can protect
`
`by injunction. See, e.g., Collins v. Arancio, 72 A.D.2d 759 (2d Dept. 1979); See also, Feuer v.
`
`Brenning, 279 AD. 1033 (2d Dept. 1953), affd. 304 N.Y. 881 (1953).
`
`41.
`
` Here, Defendants are wrongfully interfering with Plaintiff’s use of enjoyment of
`
`the Property and access to the Property by, among other things, fences, signage threatening
`
`violence, cameras, and locks.
`
`42.
`
`The continued unlawful interference with Plaintiff’s property has occurred with
`
`respect to Lots 3 and 4.
`
`43.
`
`Plaintiff does not have road access to conduct the eviction and removal of the
`
`personal possessions from the premises. Specifically, all egress is locked and chained metal gate
`
`with signs stating “PRIVATE PROPERTY” “WATCHING CLOSED CIRCUIT TELEVISION –
`
`24 HOUR RECORDING” is blocking and preventing road access. See, e.g., the Card and McCoy
`
`Affidavits.
`
`44.
`
`Defendant’s wrongful interference with Plaintiff’s property, unless and until
`
`enjoined and restrained by order of this court, will cause grave and irreparable injury to Plaintiff,
`
`in that the Plaintiff will be barred from accessing the Subject Premises and not be able to enforce
`
`the Judgment of Foreclosure and Sale under Schoharie County Supreme Court Index Number:
`
`11 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`2015-573, and the Warrant of Eviction granted in the Holdover Proceeding brought before the
`
`Town of Middleburgh Justice Court.
`
`45.
`
`Plaintiff has no adequate remedy at law for the defendant’s wrongful interference,
`
`in that failure to permanently enjoy defendant from wrongfully interfering with would prevent
`
`Plaintiff from accessing the Subject Premises render meaningless the Judgment of Foreclosure and
`
`Sale under Schoharie County Supreme Court Index Number: 2015-573, and the Warrant of
`
`Eviction granted in the Holdover Proceeding brought before the Town of Middleburgh Justice
`
`Court.
`
`46.
`
`The wrongful interference continues to date, as evidenced by annexed photographs
`
`(Exs. A and B), public land records, and the affidavit testimony.
`
`47.
`
`As such, the Plaintiff demonstrates a likelihood of success on the merits and the
`
`equities favor the granting of an injunction.
`
`DEFENDANTS’ CONTINUOUS UNLAWFUL ENCROACHMENT ON PLAINTIFF’S
`PROPERTY IS NOT SUBJECT TO THE STATUTE OF LIMITATIONS
`
`Defendants cites three different legal theories to argue Plaintiff should not be able
`
`48.
`
`to evict the Defendants from Plaintiff’s property because this action was allegedly not commenced
`
`fast enough. However, the argument demands that this Court start the running of the statute of
`
`limitations from the commencement of the foreclosure, prior to the severance of title and necessity
`
`for the easement. Moreover, none of the statutes cited by Defendants (CPLR §214(4); CPLR
`
`§212(a); CPLR §213(1)) are relevant here because Defendants continuously interfere with the
`
`Plaintiff’s lawful ownership of the Premises and frustrate the Order and Judgment of this Court,
`
`resulting in the accrual of a new cause of action with each occurrence.
`
`49.
`
`CPLR §213(1) generally provides a six-year statute of limitation for the equitable
`
`remedy of an injunction and/or an action involving a mortgage upon a property. However, the
`
`12 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`cause of action could not accrue, at the earliest, until Lots 3 and 4 were transferred to the Plaintiff
`
`and caused the necessity for an easement in the first instance. Even using this earliest date, this
`
`action is timely under the Statute of Limitations. It should be noted that, prior to Plaintiff’s
`
`commencement of a holdover and attempts to execute upon a Judgment and Warrant of Eviction,
`
`Fannie Mae would not have been aware that they could neither enforce their warrant of eviction
`
`nor even access their property.
`
`50. With respect to any perceived delay, this Court must take judicial notice of the
`
`myriad court closures and foreclosure moratoriums imposed since March 17, 2020. On March 2,
`
`2020, in response to the initial spread of COVID-19, the New York State Legislature passed Senate
`
`Bill S7919, which inter alia amended the New York Executive Law to establish an enumerated list
`
`of disaster events in which the Governor would be empowered to suspend statutes or regulations
`
`and/or issue directives, including the occurrence of an “epidemic” or “disease outbreak.” See, New
`
`York State Senate Bill S7919, available at https://www.nysenate.gov/legislation/bills/2019/s7919.
`
`On March 17, 2020, former New York Governor Andrew Cuomo issued Executive Order 202.8
`
`“Continuing Temporary Suspension and Modification of Laws Relating to the Disaster
`
`Emergency”. The Executive Order provides:
`
`“There shall be no enforcement of either an eviction of any tenant
`residential or commercial, or a foreclosure of any residential or
`commercial.”
`
`On March 22, 2020, the court system imposed the first of myriad foreclosure delays
`
`52.
`
`and new requirements. Under the Administrative Order of the Chief Administrative Judge of the
`
`Courts (AO/78/20), dated March 22, 2020, the Honorable Lawrence Marks stated “in light of the
`
`emergency caused by the continuing COVID-19 outbreak in New York State and the nation, and
`
`consistent with the Governor of New York’s recent executive order suspending statutes of
`
`13 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`limitation in legal matters, I direct that, effective immediately and until further order, no papers
`
`shall be accepted for filing by a county clerk or a court in any matter of a type not included on the
`
`list of essential matters.”
`
`53.
`
`On August 27, 2020, the Federal Housing Finance Agency (“FHFA”), the
`
`regulatory agency that oversees Federal National Mortgage Association and sets forth rules for
`
`handling the subject mortgage foreclosure, imposed an extension of the moratorium of foreclosures
`
`until December 31, 2020. The foreclosure moratorium was again extended through July 31, 2021.
`
`See, e.g., Fannie Mae Lender Letter (LL-2020-02); See also Fannie Mae Lender Letter (LL-2021-
`
`02), https://singlefamily.fanniemae.com/media/24891/display.
`
`54.
`
`In summary, the delays related to the eviction process and the Covid-19 pandemic
`
`fail to operate as a bar to Plaintiff’s cause of action. Moreover, even if the Statute of Limitations
`
`lapsed, which it clearly did not, New York Courts routinely hold that “an unlawful encroachment
`
`as a continuous trespass giving rise to successive causes of action.” See, e.g., Bloomingdales, Inc.
`
`v. New York City Transit Authority, 52A.D.3d 120 (1st Dept. 2008) See also, 509 Sixth Avenue
`
`Corp. v. New York City Transit Authority, 15 N.Y.2d at 52 (N.Y. 1964).
`
`WHEREFORE, plaintiff respectfully requests an Order (1) granting summary judgment
`
`against the Defendants, FRED DUFEK, JR.; ROBIN DUFEK; LAURIE DUFEK; TROY DUFEK,
`
`(2) for a permanent injunction restraining and enjoining the Defendants from interfering with
`
`Plaintiff’s Property by preventing access through constructed fences, signage threatening
`
`violence, cameras, and locks to prevent the use of Plaintiff’s Property; (3) During the pendency
`
`of this action, a preliminary injunction to enjoin and restrain Defendants from the acts set forth
`
`above; (4) A declaratory judgment finally determining the rights and obligations of the respective
`
`parties with respect to the Subject Premises and Lot 12; (5) A permanent easement by necessity
`
`14 of 15
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/02/2022 12:31 PM
`NYSCEF DOC. NO. 25
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/02/2022
`
`allowing ingress and egress from the Subject Premises to Bassler Road through Lot 12; (6) A
`
`permanent easement by implication allowing ingress and egress from the Subject Premises to
`
`Bassler Road through Lot 12; (7) Alternatively, a temporary easement for the limited purpose of
`
`facilitating the eviction proceedings and to explore the construction of an alternative ingress and
`
`egress to the landlocked Lot 3. (8) Compensatory damages in a sum to be determined at trial; (9)
`
`Exemplary damages in a sum to be determined at trial; (10) Costs of suit including but not limited
`
`to reasonable attorney fees; (11) That plaintiff has such other and further relief as may be just and
`
`proper.
`
`
`
`
`
`Dated: Manhasset, New York
`
`February 2, 2022
`
`
`
`
`
`
`DAVID A. GALLO & ASSOCIATES LLP
`By: Robert M. Link, Esq.
`/s/ Robert M. Link
`Attorneys for Plaintiff
`47 Hillside Avenue, Second Fl
`Manhasset, NY 11030
`(516) 718-269-7607
`blink@dagallp.com
`
`15 of 15
`
`