FILED: SCHOHARIE COUNTY CLERK 02/10/2022 02:17 PM
`NYSCEF DOC. NO. 36
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`INDEX NO. 2022-3
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`RECEIVED NYSCEF: 02/10/2022
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`Plaintiff,
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`AFFIRMATION IN
`OPPOSITION AND IN
`SUPPORT OF CROSS MOTION
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`Index No. 2022-3
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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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`SUPREME COURT OF THE STATE OF NEW YORK
`SCHOHARIE COUNTY
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`Charles Wallshein, an attorney licensed to practice in the State of New York affirms the following:
`I make this affirmation in opposition to Plaintiff’s motion for summary judgment. The
`1.
`opposition is based upon the public land record and the documents on file in the proceedings
`of the foreclosure action that vested title in the Plaintiff. No statement of sworn fact is
`necessary form Defendants because all facts appear as matter of public record or are admitted
`by the parties in these or in prior proceedings.
`I have searched the docket. As a threshold matter Plaintiff has failed to submit a statement
`2.
`of disputed material facts as required by 22 NYCRR §202.8-g(a)(5). Plaintiff’s motion is
`defective and should not be considered. Defendants respond to Plaintiff’s motion without
`waiver of the objection to its failure to comply with 22 NYCRR §202.8-g. There are sufficient
`facts that appear on the face of the record that are a matter of public record and, as such, are
`not in dispute.
`3. The foreclosure action pursuant to which Plaintiff took title is identified as Federal National
`Mortgage Association v. Fred Dufek et al., Supreme Court, Schoharie County, Index Number
`2015-573. The Judgment of Foreclosure and Sale together with the Report of Sale/Terms of
`Sale are annexed hereto as Exhibit “A”.
`4. Plaintiff brings the instant action to have this Court grant an easement by implication and
`or by necessity to that portion of Lot 12 (servient estate), title to which is held by Fred Dufek
`Jr. and Robin Dufek to gain access to the foreclosed property, lots 3 and 4 (dominant estate)
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`-against-
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`FRED DUFEK, JR.; ROBIN DUFEK; LAURIE
`DUFEK; TROY DUFEK,
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`Defendant(s).
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`FILED: SCHOHARIE COUNTY CLERK 02/10/2022 02:17 PM
`NYSCEF DOC. NO. 36
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`INDEX NO. 2022-3
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`RECEIVED NYSCEF: 02/10/2022
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`over the private access road leading from the public road, Bassler Road, across the servient
`estate. See land map annexed hereto as Exhibit “B”.
`5. Defendant opposes Plaintiff’s motion because material issues of fact exist that bar
`summary judgment and establish grounds for denial as a matter of law.
`It is the Defendants’ position that the Plaintiff is not entitled to an easement by necessity
`6.
`because the foreclosed property, lots 3 and 4, is directly adjacent to the public road. The basis
`for Plaintiff’s demand for the imposition of an easement by necessity is that the access
`available is essentially too inconvenient for access by automobile. At no time does Plaintiff
`state that access to the foreclosed property is impossible because the foreclosed property is
`“landlocked”.
`7. Second, Plaintiff offers no proof in admissible form that lot numbered ‘12” was ever joined
`with lots numbered “3” and “4” in a unity of interest. The only undisputed fact in evidence is
`that Fred Dufek Jr. and his wife Robin Dufek took title to two sperate parcels on two separate
`dates from two different grantors.
`8. Plaintiff references the foreclosed property, dominant estate, (lots 3 and 4) as having a
`source of title from its Exhibit “D” the deed recorded on November 21, 1995 deed from Edward
`G. Smith and Lynda G. Smith to Fred Dufek Jr. and his wife Robin Dufek, Book 588 Lot 313.
`9. Plaintiff references the source of title to Lot 12, the servient estate, from Edward Smith and
`Eugene G. Smith as the co-administrators of the Estate of Eugenia Grace Smith, to Fred Dufek
`Jr. and his wife Robin Dufek by deed recorded on March 12, 2007 at Book 831, Page 289.
`10. Plaintiff places great weight on the separation of the unity of interest. However, Plaintiff
`offers no proof that the two separate parcels were unified in interest at one time as one whole
`parcel that was later subdivided. Unity of interest does not mean that one party owns two
`separate but contiguous parcels. In fact Plaintiff does not set forth the facts and circumstances
`that create the unity of ownership in the dominant estate’s chain of title. The public land record
`contains no record of a grant of a easement to the dominant estate.
`11. Nevertheless, Plaintiff claims that the property foreclosed on included an easement across
`Lot 12 to make access by the foreclosing Plaintiff, the Federal National Mortgage Association,
`to Bassler Road convenient. There is no evidence of this in the public land record or offered in
`these proceedings. Plaintiff’s statement is simply a mischaracterization of fact.
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`FILED: SCHOHARIE COUNTY CLERK 02/10/2022 02:17 PM
`NYSCEF DOC. NO. 36
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`INDEX NO. 2022-3
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`RECEIVED NYSCEF: 02/10/2022
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`12. The law is clear that mere inconvenience is insufficient to establish an easement by
`necessity. Plaintiff seeks to portray the instant demand as required by necessity despite the fact
`that the subject property is adjacent to the public road for a distance of approximately 600 feet.
`See Simone v. Heidelberg 9 N.Y.3d 177 (2007), see also, Heyman v. Biggs, 223 N.Y. 118,
`(1918).
`13. Plaintiff is likewise not entitled to an easement by implication. A person claiming an
`easement by implication cannot acquire that right by a foreclosure upon the dominant estate.
`The burden of proof is squarely upon the person claiming an easement by implication. See,
`Van Deusen v. McManus, 202 A.D.2d 731, 732, (3rd Dep’t 1994).
`14. To acquire an easement by implication that three criteria must be met. First, there must be
`a unity and subsequent separation of title; Second, the claimed easement must have, prior to
`separation, been so long continued and obvious or manifest as to show that it was meant to be
`permanent, and (3) use must be necessary for beneficial enjoyment of land retained. See Beretz
`v. Diehl, 302 A.D.2d 808 (3rd Dep’t 2003).
`15. Even if the first two elements are present Plain tiff cannot demonstrate necessity. The
`Plaintiff foreclosed and now has a deed to parcels 3 and 4. Parcel 3 abuts and is adjacent to
`Bassler Road for a distance of approximately 600 feet. There is now unity of ownership by the
`Plaintiff to lots 3 and 4.
`16. Plaintiff’s demand for an easement by implication fails as a matter of law because there is
`no necessity. The footpath access to ingress and egress admitted to by the Plaintiff at paragraph
`numbered “26” of its affirmation in support (Robert Link Esq.).
`17. The Plaintiff submits that Heyman v. Biggs, 223 N.Y. 118, (1918) suggests a more relaxed
`interpretation of the doctrine of necessity to require “a reasonable use” rather than
`“indispensable”. The Heyman Court uses the term “indispensable”. Every other case cited for
`an easement by necessity requires the servient estate to be landlocked without any ingress and
`egress.
`18. The 600 feet of road frontage without an existing driveway may create a significant
`inconvenience for the Plaintiff. The law clearly states that inconvenience does not give rise to
`necessity. See Simone v. Heidelberg, id.
`19. Plaintiff has also failed to introduce testimony and facts in admissible form concerning the
`prior use of the properties to establish that the demanded driveway easement was an easement
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`FILED: SCHOHARIE COUNTY CLERK 02/10/2022 02:17 PM
`NYSCEF DOC. NO. 36
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`INDEX NO. 2022-3
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`RECEIVED NYSCEF: 02/10/2022
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`by necessity at the time the dominant and servient estates were severed. Moreover, there is no
`evidence offered by the plaintiff as to when the estates were severed or even if the estates were
`severed.
`20. Even if an easement existed prior to severance, which it did not, the public land record
`indicates that the alleged easement was never re-created. See Witter v. Taggart, 78 N.Y.2d 234
`(1991). This is of course because the easement never appeared in the public land record in the
`first instance.
`21. Plaintiff has not established prima facie, entitlement to summary judgment for either an
`easement by necessity or for an easement by implication. Plaintiff has failed to include facts
`sufficient to establish the elements for necessity as landlocked, for unity of interest, or by
`implication.
`22. Last, there is nothing preventing the Plaintiff from ingress and egress to the subject
`property although the access may be inconvenient. In essence, the Plaintiff seeks an injunction
`so that they avoid getting mud on their boots. Access to the property may be messy but it is
`certainly not impossible. Plaintiff’s demand for an injunction is without support of the facts.
`No injunctive relief is necessary. Plaintiff’s request should be denied.
`23. There is no basis for a Court to order the trespass by Plaintiff over the Defendants’ property.
`24. Contrary to the Plaintiff’s contentions there is in fact a remedy available. It is called
`walking in on foot over property the Plaintiff already owns.
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`WHEREFORE, Defendants respectfully request that the Court deny Plaintiff’s motion for
`summary judgment and that the Court grant such other and further relief as the Court may
`deem just, equitable and proper.
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`___/S/_________
`Charles Wallshein,
`Counsel for Defendants Dufek
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`Dated: February 9, 2022
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` Melville, NY
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