FILED: SCHOHARIE COUNTY CLERK 02/14/2022 09:06 PM
`NYSCEF DOC. NO. 39
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/14/2022
`
`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 REPLY
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`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 Reply to Counsel’s Opposition and in further 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
`
`1 of 8
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/14/2022 09:06 PM
`NYSCEF DOC. NO. 39
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/14/2022
`
`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.
`
`3.
`
`As a preliminary matter, Defendants’ Opposition should be discarded because it
`
`improperly relies on the hearsay testimony of an attorney.
`
`4.
`
`It is well-settled that the affirmation of an attorney without knowledge of the facts
`
`alleged fails to create an issue of fact and contains no probative value. See, e.g., Brookman &
`
`Brookman, P.C. v. Schiavoni, 245 A.D.2d 93 (1st Dept. 1997) (Affirmation of counsel lacking
`
`personal knowledge was insufficient to defeat motion for summary judgment); See also, Smith v.
`
`Johnson Products Co., 95 A.D.2d 675, (1st Dept. 1983); See also, Currie v. Wilhouski, 93 A.D.3d
`
`816, (2d Dept. 2012) (attorney affirmation was not based upon personal knowledge and thus was
`
`of no probative or evidentiary significance); See also, U.S. Natl. Bank Assn. v. Melton, 90 A.D.3d
`
`742, 743 (2d Dept. 2011); See also, Warrington v. Ryder Truck Rental, Inc., 35 A.D.3d 455, 456
`
`(2d Dept. 2006).
`
`5.
`
`To address the substance of counsel’s hearsay testimony, Paragraph 22 summarizes
`
`his argument: “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.”
`
`6.
`
`In other words, counsel imposes an “impossibility” standard, utterly foreign to New
`
`York law, which demands that the Schoharie County Sheriff’s Office assemble an eviction unit to
`
`climb fences, trudge through rough terrain, and ignore signage threatening to open gunfire.
`
`7.
`
`Counsel’s rigid construction of the law exposes the Sheriff’s Department to an
`
`2 of 8
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/14/2022 09:06 PM
`NYSCEF DOC. NO. 39
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/14/2022
`
`unnecessary safety risk to enforce the Judgment and Order of this Court and the warrant of eviction
`
`issued by the Town of Schoharie.
`
`8.
`
`There is no reason to unnecessarily put the safety of Sheriff deputies at risk by
`
`forcing them to facilitate a hostile eviction and removing the Defendants’ belongings from the
`
`residence by foot, across a dangerous hiking path.
`
`9.
`
`Defendants are silent in response to the Affidavit testimony from Sgt. McCoy and
`
`Mr. Card that an eviction cannot be facilitated through the narrow hiking path.
`
`10.
`
`Sergeant McCoy’s Affidavit 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”.”
`
`11.
`
`As explained in the 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.”
`
`12.
`
`Counsel’s affirmation baselessly imposes an “impossibility” standard on the
`
`Schoharie County Sheriff’s Department. The Appellate Division imposes no such requirement.
`
`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].
`
`13.
`
`Even if this Court holds that counsel’s hearsay testimony is somehow sufficient to
`
`defeat summary judgment, counsel has presented no basis to deny injunctive relief, i.e., facilitating
`
`the eviction as the parties litigate the permanence of an egress through Lot 12.
`
`3 of 8
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/14/2022 09:06 PM
`NYSCEF DOC. NO. 39
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/14/2022
`
`14.
`
`It is generally accepted that injunctive relief merely requires a “likelihood of
`
`success; conclusive proof is not required.” See, Terrell v. Terrell, 279 A.D.2d 301, 303 (1st Dept.
`
`2001). “[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” See, e.g., Egan v. New York Care
`
`Plus Ins. Co., 266 A.D.2d 600, 601 (3d Dept. 1999).
`
`15. Moreover, “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’.” See, e.g., Sau Thi Ma v. Xuan T. Lien, 198 A.D.2d 186, 187
`
`(1st Dept. 1993).
`
`16.
`
`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 also states “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. Id. See also, CPLR 6312[c].
`
`17.
`
`Defendants admit through their silence that 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).
`
`18.
`
` It is uncontroverted that Defendants’ 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. Plaintiff will be barred from accessing the Subject Premises and not
`
`be able to enforce the Judgment of Foreclosure and Sale and the Warrant of Eviction.
`
`19.
`
`By contrast, the Defendants have not even alleged (and could not allege) any
`
`prejudice caused by granting driveway access in Lot 12 to facilitate an eviction. To reemphasize,
`
`4 of 8
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/14/2022 09:06 PM
`NYSCEF DOC. NO. 39
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/14/2022
`
`the Defendants are completely silent in Opposition and even counsel’s hearsay affirmation fails to
`
`allege prejudice.
`
`20.
`
`Furthermore, counsel’s argument that Plaintiff failed to “set forth the facts and
`
`circumstances that create the unity of ownership in the dominant estate’s chain of title” is similarly
`
`misguided. See, e.g., Wallshein Affirmation at ¶10.
`
`21.
`
`Defendants, FRED DUFEK, JR., ROBIN DUFEK, LAURIE DUFEK, TROY
`
`DUFEK, are the former owners 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, 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, 2021 in Liber 937, Page 237. The Deed
`
`was annexed to Plaintiff’s motion.
`
`22.
`
`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. The Lot 12 Deed was also annexed
`
`to Plaintiff’s motion.
`
`23.
`
`Plaintiff currently owns Lots 3 and 4 because of the Referee’s Deed recorded in
`
`connection with Schoharie County Supreme Court Index Number: 2015-573.
`
`24.
`
`Neither the validity nor the substance of the land records annexed to Plaintiff’s
`
`motion are challenged in counsel’s Opposition.
`
`25.
`
`Defendants also fail to challenge that Lot 12 includes a driveway along the outer
`
`edge that Defendants use as the exclusive route to Lot 3 from Bassler Road.
`
`5 of 8
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/14/2022 09:06 PM
`NYSCEF DOC. NO. 39
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/14/2022
`
`26.
`
`Here, the land 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 only means to access the residence
`
`from Bassler Road.
`
`27.
`
`Even if there were not actual unity of title prior to the foreclosure, which there
`
`clearly is, the Appellate Division holds in favor of the easement where control over the property
`
`is tantamount to ownership. In Erly Realty Development, Inc. v. State, 43 A.D.2d 301 (3d Dept.
`
`1974), the Third Department, held:
`
`“Without actual unity of title, the exceptions to the general rule
`requiring unity of ownership for the allowance of severance
`damages are narrowly confined [citations omitted] but the award of
`such damages has been sustained where, given contiguity and unity
`of use, close control of one ownership entity by the other is
`tantamount to actual ownership [citations omitted]. There was
`proof that the respective stock holdings of the individual claimants
`in the corporation were in exactly the same proportion as the
`undivided interest of each in the real estate of the individuals.
`….
`
`Thus, the court had a right to rely on the holdings in Guptill, the only
`factual distinction being that in the instant case there are five
`individual claimants instead of one holding title to the realty in
`their individual names and exercising joint control over the
`corporate owner, a distinction which should not compel a different
`result.” [Emphasis added].
`
`There is no dispute between the parties, even in the hearsay affirmation of counsel,
`
`28.
`
`that Lot 12 has always and continues to serve the Lot 3 egress to Bassler Road.
`
`29.
`
`Finally, with respect to 22 NYCRR §202.8-g(a)(5), Plaintiff acknowledges the
`
`newly imposed requirement for a concise statement of material facts as to which the Plaintiff
`
`6 of 8
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/14/2022 09:06 PM
`NYSCEF DOC. NO. 39
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/14/2022
`
`contends the there is no genuine issue. Your Affirmant overlooked the rule, regrets the
`
`unintentional noncompliance thereunder, and respectfully requests nunc pro tunc effect to the
`
`annexed Statement of Material Fact. A copy of the Statement of Material Fact is annexed hereto
`
`as Exhibit A.
`
`30.
`
`It is broadly accepted that courts have substantial discretion to correct nunc pro
`
`tunc irregularities and/or harmless pleading errors under CPLR 2101(f) and/or CPLR 2001. See,
`
`e.g., Status General Development, Inc. v. 501 Broadway Partners, LLC, 163 A.D.3d 740 (2d Dept.
`
`2018); Francis v. Midtown Express, LLC, 124 A.D.3d 493 (1st Dept. 2015); Grskovic v. Holmes,
`
`111 A.D.3d 234 (2d Dept. 2013).
`
`31.
`
`Here, the Defendants fail to submit any testimony in Opposition at all, much less
`
`allege that a substantial right of the parties is violated by the Court’s nunc pro tunc consideration
`
`of Plaintiff’s Material Statement of Facts.
`
`32.
`
`Even if this Court were to deny the summary judgment portion of the motion on
`
`technical grounds, there is no technical, and certainly no substantive basis for denying injunctive
`
`relief and allowing the eviction to move forward. See, e.g., Egan v. New York Care Plus Ins. Co.,
`
`266 A.D.2d 600, 601 (3d Dept. 1999).
`
`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
`
`7 of 8
`
`

`

`FILED: SCHOHARIE COUNTY CLERK 02/14/2022 09:06 PM
`NYSCEF DOC. NO. 39
`
`INDEX NO. 2022-3
`
`RECEIVED NYSCEF: 02/14/2022
`
`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 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 14, 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
`
`8 of 8
`
`