FILED: ORANGE COUNTY CLERK 12/22/ :03 PM

Transcription

1 FILED: ORANGE COUNTY CLERK 12/22/ :03 PM INDEX NO. EF NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 12/22/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE WILL ISNADY, -against- Plaintiff, WALDEN PRESERVATION L.P., THE CEDARS, VILLAGE OF WALDEN and THE VILLAGE OF WALDEN POLICE DEPARTMENT, Defendants. x x Index No. EF AFFIDAVIT STATE OF NEW YORK ) SS: COUNTY OF NEW YORK ) Virginia Goodman Futterman, being duly sworn deposes and says: 1. I am a partner at the law firm of London Fischer, LLP attorneys for Walden Preservation L.P. and fully familiar with the facts and circumstances of this matter. 2. I submit this Affidavit, along with licensed Land Surveyor John Atzl s Affidavit dated December 16, 2016 and Memorandum of Law, in support of Defendant Walden Preservation L.P. s Cross Motion to Dismiss the claims against it in lieu of Answer. 3. The action against Walden Preservation L.P. must be dismissed because: a). b). There is no easement and therefore no basis for any cause of action; There is no standing because Plaintiff does not have any right or interest in the land claimed to have been unlawfully taken. c). There is no fide controversy upon which a declaratory judgment can be made. 1 of 7

2 4. Plaintiff owns a residential/commercial structure at 154W. Main Street which fronts on West Main Street, Walden, New York as seen below Walden Preservation L.P., is the owner of an Affordable Residential Apartment Complex known as The Cedars, 400 Cliff Street, Walden, New York. The Cedars consists of 62 apartments, playground and parking areas. ~ tr% a ~ ~.7:1 1~. /. ~ 2 of 7

3 6. The entrance to The Cedars is at the intersection of Cliff Street and Oak Street. There is an emergency entrance to The Cedars on Cliff Street close to where it intersects with West Main Street, as seen below. 3 of 7

4 7. The side of Plaintiffs building abuts Cliff Street. The Village of Walden designated a fire lane on Cliff Street adjacent to Plaintiff s property, where parking is prohibited, as seen below (See also Defendant, The Village of Walden s Exhibit C and Memorandum of Law at pages 8-10). 8. Plaintiff has access (both ingress and egress) to the driveway behind his building, as shown below. 4 4 of 7

5 4. 1 ~2- : ;~ \ 9. Plaintiff claims an easement exists which permits vehicle parking and use of Cliff Street abutting his property. 10. As set forth in the public records, and in the attached affidavit of Land Surveyor, John Atzl, no such easement exists. 11. Indeed, that portion of Cliff Street is a fire lane designated as such by The Village of Walden where parking is prohibited. 5 of 7

6 12. Further, Plaintiff has always had access to the driveway abutting Cliff Street where Plaintiffs vehicle is parked, as seen below. - - ~.~ -~ c \ ~ ~. ~ ~ his c&rnjeu3cty S. ii 13. Despite the utter lack of any basis, Plaintiff asserts two causes of action in his Complaint against Walden Preservation L.P. : 1) A declaratory judgment prohibiting Defendants from denying the Plaintiffs ingress and egress on Cliff Street to Plaintiffs driveway and permitting the Plaintiff to park his and/or his tenants vehicles on Cliff Street. 2) Impermissible taking of private property. 14 It is clear based upon the established facts and law, that Plaintiff does not have an easement and parking is prohibited in the Cliff Street fire lane. See Complaint, attached as Exhibit A to the Motion-In-Chief Affirmation of Janine Mastellone dated December 1, 2016, attorney for The Village of Walden and The Village of Walden Police Department. 6 6 of 7

7 15. Accordingly, Walden Preservation L.P. respectfully requests this Court grant its Cross Motion in its entirety dismissing Plaintiff s Complaint in its entirety against Walden Preservation L.P., and direct such other and further relief as this Court deems just and proper. Subscribed and sworn to before me This 22nd day of December, 2016 Virginia Goodman Futterman NOTARtJPUBLIC) INGRID QUAMINA Notaly Public, State of New Yodi No. 01QU Qualified in Kings Gou Commission Expires May 2, 7 of 7