North Tonawanda Corruption and Judge Frank Caruso

[magrep]

My husband I are involved in a horrendous corrupt system and failure of local and county system to grant due process and equal protection.

We have experienced the following unethical behaviors at the hands of city officials:

1. The city issued a building permit for a fence on our shared driveway.l
2. The local court judge, Frank Caruso failed to force my neighbors to remove a fence on our shared driveway when we presented facts in the case and they presented only facts that corroborated what we said.
3. North Tonawanda Police ignore harassment of driveway blocking with vehicles and garbage.
4. North Tonawanda police refused to make a DMV report involving personal injury in a motor vehicle accident instead just listing it as a “neighbor dispute.”
5. North Tonawanda Police threatened to arrest me for harassment after trying to get a simple DMV report filed (required by NYS DMV Commission regulations section 600-605).
6. Judge Frank Caruso refuses to fulfill the decisions of the 8th district Court of Appeals after we won our case, allowing new evidence in the case after appeal, visiting the site after appeal, and not setting a trial on damages.
7. Judge Frank Caruso forced us to drop a suit against the City of North Tonawanda for the issuance of a building permit even after the city refused to answer the Summons & Complaint.
8. There appears to be contact between the defendant and Frank Caruso (as the defendants have stated that this judge who has never met us, “doesn’t even like you” and/or he may has contact with city officials in regard to this case.

We purchased a home with a shared driveway and filed a shred driveway agreement with the county. The person on the other side of the shared driveway was a tax delinquent individual. A woman across the street convinced her mother to purchase the house next to us at a tax auction. She did so and immediately tried to take away our right to the shared driveway.

The ever-ethical City of North Tonawanda attorney informed the new purchaser that he would allow building permit so they could put a fence down the middle of our driveway and in return he would be rid of the delinquent tax payer. She sold her house for $1 to her daughter even though she agreed to live in the house when she purchased it from the city. This allowed her daughter not to pay taxes (she gave her mother over $20,000 later when she obtained a loan but did not pay property taxes as she bought the house for $1).

She and her daughter immediately attempted to remove all signs that this was a driveway, they took down fences that proved the property could not have been accessed from the other side of the lot, they removed the garages, they put a fence down the middle of the driveway, they put barrels in the driveway, threw mulch on it, and planted things in it.

We took these individuals to court. We had over 7 witnesses give depositions that this was a driveway. When any portion of another’s property has been used for more than 10 years it is considered an easement. We had proven its use, through witness accounts, for 50+ years. There is substantial evidence in the design of the property that the easement actually goes back to the date of the home 1889. In their defense they claimed the woman who signed the driveway agreement we had didn’t even live in the house and that this had not been a driveway. Their own survey showed it was a driveway. We had seven depositions, they had no witnesses other than the daughter (and she had moved in across the street only the year prior). We had photos of our car in the driveway, photos of tire tracks in the driveway, pictures of it shoveled, etc.

One of the things that kept being brought up with their attorney and the judge was that we should settle. Settlement meant paying my neighbor $6,000 for the driveway that we had a right to use for free and not obtaining back any of the money we spent on attorney’s fees. We have had to struggle and pay through the nose while I supported a man on his death bed (My husband was had end stage liver disease at the start of this legal battle) and two children on a meager salary. This means rewarding these people for their ill nasty behavior and punishing the people who live by the law. Must we purchase our rights in addition to our home?

In the oral arguments of the case their attorney had a rambling incoherent closing argument to his case. He brought up no facts of the case whatsoever and blatantly lied; the proof of which was in the evidence offered in the motion. Much of what her attorney said was proven incorrect by her own deposition. At points he even contradicted himself. The fact that a motion was granted for them that they did not request meant they did not even have to pay for a judgment in their favor but we had to shell out thousands of dollars for a decision that was decided without consideration of the merits of the case. Judge Frank Caruso went so far as to quote their attorney’s oral argument as though it was a fact of the case in his decision.

After 4 years of stalling by their attorney Judge Frank Caruso found in their favor in a summary judgment even though they had no evidence in their favor and had not even applied for a summary judgment. He claimed that we had not used the driveway in the three years from the time her parents bought the house to the time of the fence building (which would not matter as it takes 10 years of no use to void an easement). He found this to be the case even though she said in her deposition that we used it, friends used it, other neighbors used it, we had photos of our vehicle in it, she sent us a letter to stop using it, and tried to have us arrested for using it (proof of which was available in the case evidence). The City of North Tonawanda was originally in a law suit with us as well because they issued a building permit even though the individual must present a survey. Their survey showed a driveway that they only owned half of. The city of North Tonawanda issued a building permit and the City of North Tonawanda is 1/3 of Judge Frank Caruso’s voting population. Judge Caruso forced us to drop our action against the City of North Tonawanda after the City of North Tonawanda did not even respond to our Summons and Complaint and then he granted my neighbors a summary judgment without any facts. This would make our case against the City of North Tonawanda pointless until after appeal (and at which point it is to late to pursue the city).

We appealed and won a unanimous decision over turning Frank Caruso’s decision in Kessinger vs Sharpe: http://www.nycourts.gov/ad4/court/Decisions/2010/03-19-10/PDF/0038.pdf However, here we are months later with a fence still in our driveway being forced to have “settlement conferences” where the judge decides where my neighbors can end the fence that the appeal court stated must be “removed forthwith.” We also do not have our trial on damages yet which the court stated should be, “an immediate trial on damages.”

Why, I ask you, does the judge who makes the bad unethical legal decision get to continue his bad unethical legal decisions. He went so far as to make a site visit after the appeal decision, allowing new evidence to be introduced and deciding they can keep their fence up to a point of our crab apple tree. This would be okay with us accept that then the fence is allowed to be at an angle which will protrude into the area that was formerly part of the easement. Instead of having the fence at a right angle where it can’t possibly intrude he is allowing these people to have it at a straight angle which will cut off our turning radius.

Not only have we had to spend $20,000 on a one person household income but my neighbors have continually harassed us. They have parked over the driveway line (until the judge’s visit) for almost the entire duration of the court case, they lined up their garbage cans in the driveway. They filled barrels with concrete to block the front of the drive ahead of the fence hoping we would drive into them. And, she pushed me 3 feet with her car and knocked me over the day before the judge came. The police have refused to help us calling this a “neighbor dispute.” They would not even file a DMV report when I, a pedestrian, was hit and knocked down, inured and treated in the ER. We sent our surveillance film (we have multiple cameras of our entire property) to the DMV and they filed the report based on the video. The police claimed I deserved to be hit (on my own property) because I stepped in front of the car (next to her husband, incidentally). This, would still be an accident and the DMV regulations Sec. 600-604 state that the police MUST fill out a DMV report and gather insurance information when a pedestrian is hit and injured. I have severe scoliosis and cervical dystonia and this incident caused me moderate pain for a few weeks (though not a severe injury). Liberty Mutal, who did a full investigation, interviewing neighbors in three households who were watching across the street, will not pay my medical bills. Based on their investigation my being hit was a “deliberate attempt” to “cause bodily harm” which makes me a “non-qualifying” individual. So, the North Tonawanda Police don’t want to file a report but the DMV says its necessary and the insurance company believes I was deliberately hit. IS this not like the old days where a man was allowed to beat up his own wife and it was called a “domestic dispute” instead of assault?

Can’t anyone help us get justice in this unethical city of North Tonawanda. North Tonawanda is a Den of Thieves and I wish I had not moved here. But, I love my home and I care for my family, neighbors, and community (with some exception). Ironically, in 1996 I even wrote a glowing feature article for the Tonawanda News on North Tonawanda’s Canine Unit.

By the time I was 25 I actively volunteered for the community. I raised both of my children to volunteer and my son at just 19 is now a volunteer fireman in North Tonawanda and a student at NCCC. He is red cross CPR certified and certified to use resuscitation paddles. He has also passed NYS security guard training. He has received a Certificate of Appreciation for his Volunteer work at the North Tonawanda Inter Church food pantry. At 15 he raised $500 for Diabetes and rode in the 100 mile Tour de Cure with me. My daughter is a dual graduate (History and Social Studies with a minor in Religious Studies) of Nazareth College and a law student at South Dakota School of Law where she just won their 2010 $1000 award for representing the indigent. In the past she has been a volunteer at Northgate Manor, In North Tonawanda, the Buffalo Museum of Science and she worked as a page for 2 years at the North Tonawanda Library, she also volunteered for the Rochester Schools “Underground Railroad” project teaching inner city children of Rochester about the Underground Railroad. She and I rode in the 89 mile MS bike ride and she raised approximately $500 for MS. I have been awarded the White House’s Bronze Presidential Lifetime Volunteer Achievement award for lifetime service as a volunteer at: Northgate Manor, Heritage Green in Greenhurst, NY, the Niagara Frontier Radio Reading Service, PBS, and the American Diabetes Association, to name a few. I have received a full field security clearance through US Customs for a 6 month internship I did with them at the border. I am an alumni of NCCC and a student at Buffalo State college majoring in Criminal Justice with a minor in French and Political Science. My husband is a Navy Veteran with an honorable discharge. We have our flaws, we are not perfect but these things say a lot about us and our values.

We won our case – this fence should not be here. This person put up the fence with purposeful intend and deliberately lied and slandered our name. We have had constant harassment while they claim we are harassing them. We have such horrendous things on tape it is just not imaginable what we have gone through. I was hit by a car and the police would not even fill out a report because it was a “neighbor dispute.” We had massive evidence as is proven by our winning on appeal of a summary judgment. Summary judgments are only granted when the facts of the case are not even debatable because they deny a right to a trial. Yet, here we are with a fence down our driveway. We have done service to others but no one will help us. Judge Frank Caruso either does not understand the law, does not care enough to research, or is an unethical “on the take” individual. Please, if he is the only person, still do not vote for him. If he does this in civil law what will he do in criminal law and family court. We do not need this unethical man deciding issues of children’s lives.

All you have to do is come to see this ridiculous spite fence that goes nowhere but in a straight line down the middle of what clearly is a driveway to know that we have had our rights violated. This is FOUR years while we struggled through my husbands illness, decline, transplant, and convalescence spending money we should not have had to spend because of a woman’s gossip spite, and hatred. North Tonawanda is a Den of Thieves and Judge Caruso is either Lazy, on the Take, or unqualified to be a judge. Don't vote for him.

[Rhiannon]

This is exactly why I do not live there anymore... I can tell you some stories! Best done in private.

[Eat My Gun]

I'd love to hear the other side of the story...and I'll reserve my judgement until then.

[magrep]

If you are someone who can help I encourage you to obtain the records of this case. The appeal decision is above (keep in mind it is very difficult to get an appeal on summary judgement) and the orginal court case is 125669/2007 recorded in the Niagara County Clerk's office. Documents are free to the public at the Niagara County Clerk's office. Keep in mind that an easement means the property has been used as a driveway for 10 years, no other lame excuses, "It isn't a driveway." Or "no one had a right to sign" matter. If you buy a house with a shared driveway you MUST share it. It might not seem fare to not be able to use a strip of your land as you see fit but all one has to remember is that 1. One chooses to buy it with an easement, and 2. The looser of the right has far more to loose than the winner of taking it away has to gain. To put oneself in the shoes of the person who had their right to a shared driveway removed might make it clear how hurtful and violating it is, let alone the inconvenience. The DMV record can be found at the DMV site, occured on 06/06/2010 in Niagara County https://harmonia.dmv.state.ny.us/AccidentSales/index.cfm

[magrep]

I never really thought this kind of lack of due process occured in populated areas. I though this was an occurance in places like the deep rural South.

[steven]

If the court said the land was legally yours then why dont u just tear down the fence, its on your property.

[nogods]

have you had an attorney in this matter?

[magrep]

The court did not say the "property" is legally ours. It says that the land between the houses is an easement and shared. This means that we must mutually respect the rights of each other to use about 6 feet of the edge of the other resident's property. We each own half of this land. To tear down the fence is to deface their property. They have a right to put it somewhere else without damage to it. Believe me, though, we have been tempted on many occasion and would love to burn it in our chiminea!

[magrep]

Yes, we have had an attorney. Our winning appeal is a New York landmark case, actually. Unfortunately, when a lower court judge doesn't want to follow the law it is very difficult to force them. My attorney is in pursuit of forcing the judge to carry out their dictate. I do wish to get the word out. This judge seems to have gotten to big for his britches, or robe.

[steven]

sorry, I must have misunderstood what was said in the last court action

[magrep]

No problem. Unfortunately, that is probably why this has been allowed to go on so long. It is a complex issue. Frank Caruso wrote what would seem like a plausable decision until read with a legal eye where one knows the case law and knows the facts of the case. It is also why NT has gotten away with helping these unethical people take our rights. It is too complex an issue for the average officer to understand. Most people don't understand how an easement comes into existance or why someone is allowed to use a portion of the land of another. One officer, Lt. Daughtery, screamed at us that they had a right to park 1/2 over the driveway because they owned half of it. This just isn't so. North Tonawanda City ordance states that you can not block a driveway entrance and you can be ticketed for blocking your own driveway.

[magrep]

3125
New Fence across driveway - does not surround property - only in a straight line to the back of the property - notice old and fresh tire wear. Edge of the city placed concrete driveway skirt visible just before the sidewalk.

3126
Driveway before fence - their defense: not a driveway (their survey from 2002 indicates this land as "stone drive." In her defense, my neighbor stated that it was never used as a driveway by them at any time. Note the dumpster at the end, for which they had to use the driveway. Its placement was to take away the garage they removed that was at the end of this driveway. They would attempt to claim the garages had been accessed from the other side of the property (which had been blocked by a fence).

[geberaj]

I think that when a person who wants a seat on the State Court has to change political parties in order to get the nomination, he must accumulate some pretty heavy baggage in the form of favors owed to local political demigods. My guess is that Judge Caruso's foot-dragging in complying with the higher court's directive falls into this category.

[magrep]

Yes, very ironic if his "bed partner" is the City of North Tonawanda officials. As the new property owners have also been published for delinquent taxes, been in housing court repeatedly for not caring for their property and have the added bonus of destroying the second lot by parking in the grass in their attempt to "prove" the property was accessed from the other side of the house. So North Tonawanda has basically the same problems as before their nice little agreement to ignore the shared driveway.

[therising]

Interesting case. And, I feel for you, as arguing with neighbors who are so close in proximity has to awkward.

Why did the neighbors put the fence there, anyway? Doesn't it prevent them from using it as well?

And, just curious - how long was the house vacant for?

[Effigy]

Yes, very ironic if his "bed partner" is the City of North Tonawanda officials. As the new property owners have also been published for delinquent taxes, been in housing court repeatedly for not caring for their property and have the added bonus of destroying the second lot by parking in the grass in their attempt to "prove" the property was accessed from the other side of the house. So North Tonawanda has basically the same problems as before their nice little agreement to ignore the shared driveway.

Call Al Vaughters at WIVB, or another "investigative reporter" at whatever station you like. He/she can do far more for you than we can here.
Seeing the DWI dismissal in NT, there may be some interest in your dilemma.

[Effigy]

Word your complaint truthfully and succinctly.

[magrep]

I agree with you, it is a living hell to live next to these people. We have largely ignored their constant attempts to goad us into violence, taunting, talking about us, telling lies and telling people we are harassing them (as they harass us in a loud voice talking about us and spitting in our direction). We have, fortunately, gained a great deal of respect from the other neighbors for largely keeping our mouths shut. I have been involved in three arguments with them in all this time. My husband has had 2 or three more. This is because we ignore daily taunts but sometimes it is just to much to withhold. One of the neighbors said, “She thinks no one sees what she does.” One of the neighbors offered to let me use her yard so that I could enjoy outdoors without being taunted. However, that is giving in to their behavior and I am usually capable of ignoring it. Most of the time it is just as easy to tolerate as a taunting five-year old. Thankfully, my children were almost grown when this started and their major development has not been affected but this. I can not say the same for her children who were babies and have grown up into older school children thinking it is normal to run to the window and peak out and talk nasty about your neighbor (thus the cycle continues on their end). I don’t know why she did this. She has had a problem with me from the get go. She did talk about my “culture” as I indicated my name is Syrian. I am Syrian and Italian. I am of a Christian faith and I don’t know how she would pick what my “culture” is but their might be an element of racism here which is very ironic because her son is mixed-race. It could simply be selfish territorial, “This is mine” behavior and a failure to understand how to create a positive community. Or a failure to understand how one’s actions affect the community. She has alienated and isolated herself from most of the neighbors for her doing this. People would drive down the street, stop their cars in the middle of the street, and shake their head in disbelief before driving on when the fence first went up. The house was not vacant. The owner lived their and was evicted by the police. She had a boyfriend a few blocks away and often stayed at his house. She also took 2 to 3 week jaunts to Connecticut to see her children who lived with her x-husband. She took poor care of the house but we got along okay with her and helped her as best we could. Apparently there was about a year where the house was not lived in when her mother moved to Florida before family moved in. We are quite sure the owner used the driveway because we had to get reassurance three times from the realtor about her knowing it was a shared driveway because she kept parking in it instead of at the end of it. She eventually said yes that what she was doing was parking the car in our driveway to make it look like someone was living in our house. Our house was vacant for almost two years after the owner died. Neither house was out of use for the requisite 10 years to make an easement invalid. And yes, they have cut off their nose to spite their face. They have cut off their access to the back and devalued their property. This is a picture of their new “driveway.” They have obliterated the beauty of the lot. In the background you can see the tree, which is protected, and means they can never put a paved driveway on this second lot. So mud or stones is all they can ever have should the fence not come down. This is foolish clubhouse “I will not share” behavior. When the police would get involved I would ask them the simple question, “Look at this fence and ask yourself if a reasonable person would do this.” They knew full well we would take them to court over it, our attorney sent their parents stating a letter to that affect in 2004 (as they were the owners at that time). In fact, they didn’t have enough money for a furnace and a fence so they bought a fence and two wood stoves for their house with 3 children. They used to be so cold they would walk around with wool hats on. Then, after her husband lost his job they received a free furnace from Niagara County as part of a home improvement project for indigent home owners so at least their kids aren’t freezing anymore.

[magrep]

It is truthful as God is my witness. I believe the act of commiting false witness is not a religious sin but a societal sin. It is harmful to one's self and to society to tell a lie as a witness in a case. I am a firm believer in drawing a line between what is right and what is wrong and not crossing that line!!! And, I want to hold my public officials to that same obligation. Unfortunately, justices scales seem to be partially weighted with falsity in this instance. It is so disappointing. We were so thrilled that Frank Caruso was the judge at first because we heard from our own attorney as well as our Pastor (who had worked with him in regard to community projects) that he was fair. We are astounded at what we went through becuase of his lack of care and lack of judicially appropriate behavoir. Astounding! This is the treatment we have had and I encourage anyone who wishes to to get a copy of the appeal record to do so. The case number is in the link attached. Remember A PANAL of appeal judge's ALL found in our favor not just one. judge against one judge. There is so much more information on our side not even mentioned. Thanks for your advice it is valuable but in terms of succinctly this is easier said then done.

[magrep]

I sent a letter with even more details to 4 and to 7 I even sent photos and a CD of my survaliance cameras of being hit by her car and haven't heard anything but that was only a week ago. We shall see.

[Momma G]

Very unfair and unjust what some people and politicians are able to do. After all isnt the judge an elected official?

[magrep]

Yes! The last time I had to vote with this man's name on the ballot I saw his name and it made me sick because we had already gone through so much. This should have been an open and shut 3 month case. Very unfair; it tests the boundaries of my belief in our justice system.

[kmitravich]

I personally think that this judge is very unprofessional. I can't even imagine having to go through all of this and still have to live next to this people everday. It must making things really hard.

[magrep]

I agree with you about the judge's unprofessional behavior. He quoted statements that were not facts of the case, he ignored evidence, he didn't even get my name right in the judgement calling me "Patricia" when my name is "Christine." Everyone makes mistakes but this case is so far away from professional it is difficult to make sense of it.


I personally think that this judge is very unprofessional. I can't even imagine having to go through all of this and still have to live next to this people everday. It must making things really hard.

[kmitravich]

I agree with you about the judge's unprofessional behavior. He quoted statements that were not facts of the case, he ignored evidence, he didn't even get my name right in the judgement calling me "Patricia" when my name is "Christine." Everyone makes mistakes but this case is so far away from professional it is difficult to make sense of it.

I know I'm only 18, and i don't know a lot about the world, but i didn't know that this kind of corruption exsisted. It seems the solid evidence you have isn't good enough. But you would have to be crazy not to see that something is seriously wrong with what these people are doing.

[mnb811]

Are the people connected in anyway to the politicians in the city? Have you called the State Attorney General's office? Sounds like some kind of political game to me.

[magrep]

Yes, these people are connected with the city in two, possibly three ways. This first is that the parents bought the house at a tax foreclosure sale. The current owner, and her mother, the previous owner, stated threat their purchase was made under the condition and agreement with the city that they could put a fence down the middle of the easement (an authority the city does not have a lawful right to grant).

Also, when the police were present when my neighbor hit me with her car she stated a person's name and then said, "that's the person I am in contact with." While I am sure the officers know who this person is I can't remember the name because I was so shaken up and angry for being knocked to the ground.

Furthermore, a particular police officer, Daughtery, has regular conversations with the neighbor. He is the officer that told me he would arrest me for harassment for asking for a DMV report to be filed (which the state did without the NT police after viewing my surveillance tapes). Before we won our case the police were considering arresting us for stepping on our easement. My neighbor attempted to have my 18 year old son arrested for stepping on it as he got out of a car. By law we have had what is called "self help" rights. This means that if an easement is blocked you have a right to take matters into your own hands and remove the obstruction and use your easement. We correctly figured the police did not understand easement law and would arrest us if we attempted to remove the fence so we did not exercise our self-help rights. Furthermore, their attorney has made several comments hinting that he has had conversation with the judge without our presence in regard to the case. He likely has tainted our person with his colorful and dishonest vocabulary (he is a divorce lawyer, incidentally, not a real estate attorney). He went so far as to, as their attorney said to our attorney, "run into an appeals court judge in the case" at a party where he was told to arbitrate and tried to talk us into arbitration. Of course, our attorney is certainly not going to arbitrate. Arbitration would have meant us paying out for something we had a right to use when we purchased our home with an easement.

In regard to the attorney general, thank you for that advice, I am putting that idea on the back burner and will keep it warm while our next action is in play.

Currently, as an update, according to the Niagara County public records, these individuals have had two failed settlement conferences in a foreclosures proceeding and may not be there much longer which means we may finally have some relief from this soon. This of course is a bitter victory, they do have children after all who do not deserve the foreclosure experience. Ironically, though they have paid through the nose to keep their fence they are representing themselves "pro se" for their foreclosure case. However, this brings up an issue. They are supposed to have the fence down by Oct 15. One has to wonder if they plan on sneaking out on Oct 14th and leaving the fence up which leaves us with more legal procedures. Also, they have been told to paint their home by the city. They have painted all of the part they can reach with their ladder accept they have painted none of the part between the house. My guess is that they intend on beginning to paint that, if they are still there, the day the fence comes down so that they then can play a “block the driveway for repairs” game. We shall see. It just never ends. We will ask that they remove their equipment during non-business hours and only block it during reasonable work hours, they do have a right to paint.

It is so distressing to go through this every day for so long. But, I don't know if my neighbors have heard about my complaints on "SPEAKUPWNY" but they have stopped harassing us since shortly after this post started. They aren't trying to block the driveway anymore (though that stopped after the judge's visit), they have stopped most of their constant snide, snotty remarks when they see us, they don't linger at the fence with loud speak and jesters and they don't block the driveway with their garbage cans. So, thank you, speakupwny if this is the reason why!!!!

Are the people connected in anyway to the politicians in the city? Have you called the State Attorney General's office? Sounds like some kind of political game to me.

[magrep]

Here is a begging thread which I will add to. I will place word for word the decision of Judge Caruso's that was overturned by the appeal court. Remember, our case has been overturned in a summary decision and is already being used by other cases but we still have a fence down our driveway. Here are the first few paragraphs of Judge Caruso's decision.

This is a public record - Index 125669 – County of Niagara - [in square brackets are my additions as a rebuttal of this poor judgement]

Caruso, J.
This is a petition to determine whether under Section 3212 CPLR that Summary Judgment should be granted. This proceeding is brought by the Plaintiffs, Dennis and Patrice Kessinger [my name is Christine Gerbera neither the first or the last name are correct as I did not take my husband’s name] against Defendant, Jeremy and Courtenay Sharpe. The Plaintiffs are asking the Court for a declaratory judgment declaring an easement by prescription over lands used in common, a driveway, by adjoining landowners. The Plaintiffs state that the Defendants erected a fence down the center of a common driveway preventing its use. They also request the court to order immediate removal of the fence and that the Defendants be permanently enjoined from interfering with their use of said driveway.
The Plaintiffs allege that the driveway was used and shared openly, notoriously, and continuously and under claim of right for over fifty years according to witnesses. They state that the Defendants acquired the house in 2005, and erected a fence down the center of the shared driveway in January of 2006. They further allege that the fence was erected with only one days warning [actually it was one week] making it impossible for either themselves or Defendants to use the shared driveway. The Plaintiffs argue that an easement by prescription has been established because the use of the driveway as well as portions of the parking lots to the rear has been open notorious, uninterrupted and undisputed for well beyond the prescriptive period [which is also incorrect, we did not claim any of the land behind the houses only in between them].
Defendants object to this, and ask the Court to deny the Plaintiffs’ motion. The defendants state that they sent a letter to the Plaintiffs in January of 2006 notifying them that they were going to erect a fence. They state that the fence was not erected until April, and no action was started in this case until after the fence was erected [this was only stated in their attorney’s closing arguments, testimony of the defendant in her deposition was that it was erected one week after the letter though they stated “spring” in their letter AND there was a police report in the record the day the fence went up which was dated January 27th – they put the fence up in January with almost no notice NOT April as both the defendant's deposition and police reports – facts of the record - show]. The Defendants argue that their parents bought the property in 2002, and told the Plaintiff, Mr Kessinger, not to use the driveway and he didn’t [ they do not state this, actually, they admit we continued to use it and they state in their letter in 2006 that they will ‘no longer allow’ its use admitting that it was used. She admits in her deposition we used it and we sent a letter via attorneys that we refused out right in 2002 to stop using the property. The fact that we used it was not even disputed by them accept for their attorney’s oral argument and refuted by the facts of the case and the defendants deposition. We showed pictures of our car in the driveway and pictures of the fence built with tire tracks going under the fence and they produced the letter from our attorney to their attorney refusing to stop using it. Also a fact of the record was them calling the police on us on January 14, 2006 and a police report being filed for using the driveway. No facts of the case indicated we had stopped using it prior to its building]. They are that the Plaintiffs can’t prove to the Court the use was open notorious, continues, and uninterrupted [In fact we did show its use and the fact that they state we didn’t have permission MAKES its use notorious and we had depositions and affidavits and pictures showing continuous uninterrupted use]. The Defendants state that Mr. Kissinger’s reliance on a real estate agent to give him legal interpretation of whether or not an easement existed was not take to heart by the Plaintiff because they state that he hired a lawyer to do it and it wasn’t done. They further state that Mr. Kessinger still went ahead and bought the property without knowledge or without the understanding or assurance that he had an easement to use the property [This again is not correct, we had the assurance of: two real estate agents, selling and purchasing; our seller, the home owner next door who owned the property previous to the defendants mother and an attorney. The estate was processed just not filed and the previous owner informed me that instead of filing the paperwork she gave it to the City of North Tonawanda Attorney and signed her house over to him – which explains why the estate wasn’t filed. But it is not a signed driveway agreement that makes and easement, it is prior use which we had proven. In contrast the current owners of the property did not have an attorney when they purchased their house and put up a fence. Their current attorney, David Laub, handled the sale of the property for the purchaser (her parents) and did not have an attorney herself. So the individual who did not have legal advice was the defendants here not the Plaintiff - this failure-to-obtain-legal advice was a smoke screen by the defendant's attorney at oral argument and in settlement confrences and contrasted with the facts of the case].
The Defendants also contend that they have tried to resolve the matter whereby they would move the fence over more on their property next to a stone walk so that the Plaintiff’s car could get through. They state that the Plaiintiff replied no, and that the whole fence should be torn down [It is very inappropriate that a judge would mention settlement negotiations in a decision. The defendants offer was to sell for $6,000 the stip of land to make a driveway something we had a right to use for free. Furthermore, what they offered was not enough to make a driveway the entire width was 12 feet. In fact the current order to remove it will likely not be enough to turn – we know because we have used it in the past and had trouble getting through with the full natural area to navigate. Individuals from their property have clipped our house. In fact we did offer them money but they refused to produce evidence that their mortgage company would approve a settlement. Furthermore, we are the only ones who offered a written settlement offer. Their attorney only made verbose statements to the court of settlement and never offered anything in writing or any proof of good faith in settlement. We also did not think the whole fence needed to be torn down – even though they chopped our tree down to put it in. We only wanted it torn down to our crab apple tree but their ego was so involved they could not offer anything that did not allow others to see the fence between the houses. What the defendants did, however, was state to every officer, official, relative, friend, and neighbor was that we refused to settle and therefore unreasonable and in their kind words would, "run them out of money" when speaking of us ].
The court has considered the following: Notice of Motion submitted by the Plaintiff Dennis Kessinger dated June 5, 2007, with exhibits attached, thereto; Affidavit of David C. Laub, Esq. in Opposition to Motion dated August 13, 20007; Affidavit of Courtenay Sharpe in Opposition to Motion Sworn to August 13, 2007; Reply Affidavit of Danial P. Tiede, Esq. dated August 23, 2007; Photographs submitted at Oral Argument [which was presented by their attorney and not legal when presented at oral argument] held May 8, 2008 and Oral Argument on May 8, 2008.

…. more to come.

The two attached photos - presented to the court which show we DID continue to use our driveway - tire treads up to and under the fence.

[magrep]

Here is a begging thread which I will add to. I will place word for word the decision of Judge Caruso's that was overturned by the appeal court. Remember, our case has been overturned in a summary decision and is already being used by other cases but we still have a fence down our driveway. Here are the first few paragraphs of Judge Caruso's decision.

This is a public record - Index 125669 – County of Niagara - [in square brackets are my additions as a rebuttal of this poor judgement]

Caruso, J.
This is a petition to determine whether under Section 3212 CPLR that Summary Judgment should be granted. This proceeding is brought by the Plaintiffs, Dennis and Patrice Kessinger [my name is Christine Gerbera neither the first or the last name are correct as I did not take my husband’s name] against Defendant, Jeremy and Courtenay Sharpe. The Plaintiffs are asking the Court for a declaratory judgment declaring an easement by prescription over lands used in common, a driveway, by adjoining landowners. The Plaintiffs state that the Defendants erected a fence down the center of a common driveway preventing its use. They also request the court to order immediate removal of the fence and that the Defendants be permanently enjoined from interfering with their use of said driveway.
The Plaintiffs allege that the driveway was used and shared openly, notoriously, and continuously and under claim of right for over fifty years according to witnesses. They state that the Defendants acquired the house in 2005, and erected a fence down the center of the shared driveway in January of 2006. They further allege that the fence was erected with only one days warning [actually it was one week] making it impossible for either themselves or Defendants to use the shared driveway. The Plaintiffs argue that an easement by prescription has been established because the use of the driveway as well as portions of the parking lots to the rear has been open notorious, uninterrupted and undisputed for well beyond the prescriptive period [which is also incorrect, we did not claim any of the land behind the houses only in between them].
Defendants object to this, and ask the Court to deny the Plaintiffs’ motion. The defendants state that they sent a letter to the Plaintiffs in January of 2006 notifying them that they were going to erect a fence. They state that the fence was not erected until April, and no action was started in this case until after the fence was erected [this was only stated in their attorney’s closing arguments, testimony of the defendant in her deposition was that it was erected one week after the letter though they stated “spring” in their letter AND there was a police report in the record the day the fence went up which was dated January 27th – they put the fence up in January with almost no notice NOT April as both the defendant's deposition and police reports – facts of the record - show]. The Defendants argue that their parents bought the property in 2002, and told the Plaintiff, Mr Kessinger, not to use the driveway and he didn’t [ they do not state this, actually, they admit we continued to use it and they state in their letter in 2006 that they will ‘no longer allow’ its use admitting that it was used. She admits in her deposition we used it and we sent a letter via attorneys that we refused out right in 2002 to stop using the property. The fact that we used it was not even disputed by them accept for their attorney’s oral argument and refuted by the facts of the case and the defendants deposition. We showed pictures of our car in the driveway and pictures of the fence built with tire tracks going under the fence and they produced the letter from our attorney to their attorney refusing to stop using it. Also a fact of the record was them calling the police on us on January 14, 2006 and a police report being filed for using the driveway. No facts of the case indicated we had stopped using it prior to its building]. They are that the Plaintiffs can’t prove to the Court the use was open notorious, continues, and uninterrupted [In fact we did show its use and the fact that they state we didn’t have permission MAKES its use notorious and we had depositions and affidavits and pictures showing continuous uninterrupted use]. The Defendants state that Mr. Kissinger’s reliance on a real estate agent to give him legal interpretation of whether or not an easement existed was not take to heart by the Plaintiff because they state that he hired a lawyer to do it and it wasn’t done. They further state that Mr. Kessinger still went ahead and bought the property without knowledge or without the understanding or assurance that he had an easement to use the property [This again is not correct, we had the assurance of: two real estate agents, selling and purchasing; our seller, the home owner next door who owned the property previous to the defendants mother and an attorney. The estate was processed just not filed and the previous owner informed me that instead of filing the paperwork she gave it to the City of North Tonawanda Attorney and signed her house over to him – which explains why the estate wasn’t filed. But it is not a signed driveway agreement that makes and easement, it is prior use which we had proven. In contrast the current owners of the property did not have an attorney when they purchased their house and put up a fence. Their current attorney, David Laub, handled the sale of the property for the purchaser (her parents) and did not have an attorney herself. So the individual who did not have legal advice was the defendants here not the Plaintiff - this failure-to-obtain-legal advice was a smoke screen by the defendant's attorney at oral argument and in settlement confrences and contrasted with the facts of the case].
The Defendants also contend that they have tried to resolve the matter whereby they would move the fence over more on their property next to a stone walk so that the Plaintiff’s car could get through. They state that the Plaiintiff replied no, and that the whole fence should be torn down [It is very inappropriate that a judge would mention settlement negotiations in a decision. The defendants offer was to sell for $6,000 the stip of land to make a driveway something we had a right to use for free. Furthermore, what they offered was not enough to make a driveway the entire width was 12 feet. In fact the current order to remove it will likely not be enough to turn – we know because we have used it in the past and had trouble getting through with the full natural area to navigate. Individuals from their property have clipped our house. In fact we did offer them money but they refused to produce evidence that their mortgage company would approve a settlement. Furthermore, we are the only ones who offered a written settlement offer. Their attorney only made verbose statements to the court of settlement and never offered anything in writing or any proof of good faith in settlement. We also did not think the whole fence needed to be torn down – even though they chopped our tree down to put it in. We only wanted it torn down to our crab apple tree but their ego was so involved they could not offer anything that did not allow others to see the fence between the houses. What the defendants did, however, was state to every officer, official, relative, friend, and neighbor was that we refused to settle and therefore unreasonable and in their kind words would, "run them out of money" when speaking of us ].
The court has considered the following: Notice of Motion submitted by the Plaintiff Dennis Kessinger dated June 5, 2007, with exhibits attached, thereto; Affidavit of David C. Laub, Esq. in Opposition to Motion dated August 13, 20007; Affidavit of Courtenay Sharpe in Opposition to Motion Sworn to August 13, 2007; Reply Affidavit of Danial P. Tiede, Esq. dated August 23, 2007; Photographs submitted at Oral Argument [which was presented by their attorney and not legal when presented at oral argument] held May 8, 2008 and Oral Argument on May 8, 2008.

…. more to come.

The two attached photos - presented to the court which show we DID continue to use our driveway - tire treads up to and under the fence.

Incidently - Notice that this fence goes only in a straight line - not around this individuals property, not protecting their children from the graveyard, not protecting them from the driveway on the other side, only straight down this driveway. I do not believe I have seen a fence so obviously made as one of spite than this!

[magrep]

Summary Judgment is a drastic remedy and generally there is considerable reluctance to grant it. It is well settled that the moving that the moving party must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact. (See Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]) Once the moving party makes a prima facie showing, the burden then shifts to the opposing party to establish the existence of triable issues of fact (See Zuckerman v City of New York 49 N.Y2d 557 [1980]). [Ironically, this very sentence points out how poor judge Caruso’s decision was in his own words. This judge GRANTED a summary judgment to the defendant. He indicates that summary judgment is a “drastic measure.” The defendants offered NO facts – as the appeal court stated. If they offered any facts at all it were facts to bolster our case. For instance, in her deposition not only does the female defendant state that she knew we used the driveway but that she knew there was an easement of record. Furthermore, she stated that she specifically went to the county clerk to ask how to get the easement removed and they informed her she could not remove an easement. In her deposition (pg 221-222 of our appeal record) it indicates:



Q. You didn’t take any corrective measures prior to the purchase of the property to have the easement removed?
A. I don’t think I understand exactly what you’re asking.
Q. Did you attempt to have the easement removed before purchasing the property?
A. Yes.
Q. Okay. And how did you have that done”
A. I went to Niagara County.
Q. Okay. And what did you do there?
A. I asked them how to remove it.
Q. What did they say?
A. They said that anyone can put anything on a title and it can’t just be removed.
Q. Okay. So at that point in time did you just go ahead and buy the property anyway.
A. Yes.


The female defendant in fact stated that she could offer no facts of the case since she moved into the property across the street in 2002 and had no knowledge of what occurred in property prior to her moving there and therefore, did not have knowledge of the prerequisite 10 years to prove and easement did not exist.



Q. All right. Is it fair to say that you don’t know whether this thing was used as a common driveway prior to the City of North Tonawanda obtaining it through its foreclosure proceeding”
A. I wouldn’t say that I have personal knowledge because I was not living there.
Q. That’s all I’m asking for, whether or not you have personal knowledge”
A. No, not that I witnessed obviously.

The relevant section of CPLR § (b) states that Summary Judgment “shall be denied if any party shall show facts sufficient to require a trial of any issues of fact.” Here, the Plaintiffs are claiming that an easement by prescription exists while the Defendants object to this. A prescriptive easement requires the plaintiff to show clear and convincing evidence that their use of the driveway was “adverse, open and notorious, continous and uninterrupted for the prescriptive period.” (See Northown v. Vivacqua, 272 AD2d 917, [4yh Dept. 2000]; Lyon v. Melino, 214 Add 99s, [4th Dept. 1995] Di Leo v Pecksto Holding Corp., 304 NY 505, 512; Lucas v. Benjamin, 213 AD2d 1015, [4th Dept, 1995]; Miller v. Rau, 193 AD2d 868, 868-869, [3rd Dept. 1993]). The Plaintiffs are required to show “some distinctive and decisive act on [their] or [their] predecessors’ part indicating an exercise of exclusive right sufficient to notify the owner of the user and of the claim of right.” (See Northown v. Vivacqua, 272 AD2d 917, [4yh Dept. 2000]; Lyon v. Melino, 214 Add 99s, [4th Dept. 1995]; Pro-Fac Coop. v Baltimore & Ohio R.R. Co., 36 AD2d 441, 444, 321 NYS 2d 208, [4th Dept. 1971]). [If Judge Caruso spent a small percentage of the time finding these cases (which show “exclusive right” is necessary – which ONLY applies to public easements NOT private properties and is not applicable to our case – he would have noticed the above information which would show that a written easement on record was enough to show they had information that we claimed an easement was present and they were therefore aware of our “claim of right” quoted as necessary above. Furthermore, there case evidence (record of appeal page 114) a letter from our attorney to their mother’s attorney on March 3, 2004 – 2 years prior to the building of the fence which states, “In conclusion, my client has the lawful right to use the common driveway easement area, which he shall continue to use. Your clients, who purchase after my client, and who had both physical and legal notice of the easement area, also have said right. For the sake of being good neighbors, I may suggest you forward to me any concerns you or your clients may have concerning the common driveway. Hopefully those concerns can be addressed in a manner acceptable to all.” Thus it is clear that even if we had to prove we had an obligation to give “claim of right” notice we clearly had in this letter. My attorney at that time also pointed out what a destructive action it might be to the neighborhood and neighbor relations to build a fence down the middle of an easement… a warning my ill mannered neighbors did not heed.

more to come...

[magrep]

Part III
This is a public record - Index 125669 – County of Niagara - [in square brackets are my additions as a rebuttal of this poor judgment which was subsequently overturned by the appeals court – though the judge has yet to set a trial for our damages or required a removal of the fence pursuant to the appeals court.]

Here, the Plaintiffs have not satisfied this requirement. Therefore, they are required to show the “assertion of a hostile right which is made known to the property owner.” [again, the conversations above of the defendant under deposition indicate that they were aware of our claim of right over the property, though this burden of proof applies to commercial property not private easements]. (See Lyon v Melino, 214 AD2d 992, 626 NYS2d 339, [4th Dept. 1995]; Hassinger v Kline, 91 AD2d 988, 989, [2nd Dept. 1983]; See, Susquhanna Realty Corp. v Barth, 108 AD2d 909, [2nd Dept. 1985]). The Plaintiffs themselves stated that their use of the driveway was permissive in nature by the prior occupants of the Defendants’ home. [ we, the plaintiffs, made no such claim whatsoever. We stand by both the validity of the three types of easement though we attempted to only receive a judgment over one: written easement (on the county record) prescriptive easement (through use going back to 1957) and an easement of necessity (for our right two bays and our back door). Furthermore, their attorney, David Laub states in a rambling contradictory statement, “They told Mr. Kessinger don’t use the driveway and he didn’t. Some days he did, and some days he didn’t” Thus, their attorney argues that we were told not to use the driveway but that indeed some days we did use it. Once an easement is established you do not need to prove you used it every single day to keep it. In their Answer number 14 their attorney argues that we were never “allowed” to use the property and this reinforces the lack of a permissive nature of the driveway use. Furthermore, Our burden was to establish proof of its use which shifted the burden to the defendant to prove that the use of it was permissive NOT our burden.] In addition, the Defendants testified that the Plaintiff has not been using the driveway since 2003, when he was told by the Defendant’s mother, who owned the property at the time, not to use the driveway. The fence was not erected until 2006. Therefore, the driveway was not used by the Plaintiffs for three years before the fence was even erected. [ First of all, once an easement exists (proven use for 10 years) it can not be taken away unless there is proof of TEN years of none use. Three years does NOT remove it. But let’s give Caruso the benefit of the doubt and assume it is okay that a judge does not know this or has failed to look it up or read the case information that the plaintiff’s attorney provided him stating such. Can Judge Caruso read the facts of the case? Well below is a list of places within the appeal record – which consists of all of the evidence of the first legal proceeding – where Judge Caruso would find proof that we used the driveway in that three years – proof offered in the form of photographs and the testimony of the DEFENDANT who agreed we used the driveway right up until the building of the fence. The defense did not offer a single witness, agreement, letter or photograph that indicated that this was anything other than a driveway nor evidence to indicate we did not use it nor that our use was permissive (which was their burden of proof). Proof that we DID use it in the record, however, was provided by both the Plaintiff and the Defendant and neither party claimed its use was permissive. From the appeal record (which is the record of the initial case in paginated order):


Pg 51 – an affidavit of a neighbor swearing that the driveway was used for 23 years with an assumed right of use.
Pg 53 of the record – an affidavit from a neighbor swearing that the driveway was used for 23 years with an assumed right of use.
Pg 55 – an affidavit from a neighbor swearing an assumed right of use by both properties since 1957.
Pg 58 – another affidavit from the same household of a neighbor swearing an assumed right of use by both property owners since 1957 even stating the names of those who had used the driveway since 1969 and remembering specific vehicles driven down the property in the 1970s and its more current use.
Pg 61 – a signed affidavit from another neighbor stating that she had knowledge of the use of the driveway since 1984.
Pg 63 – a survey showing a stone drive (they claimed there was never a driveway between the properties).
Pg 64-67 – photos of our vehicle in the driveway in 2002.
Pg 72-73 – their dumpster – driven down the driveway in 2003.
Pg 74-76 – Photos of our car driven in 2006 just after the fence was built where photos show tire tracks in the fresh wet gravel that were there prior to the building of the fence.
Pg 76-77 a carriage stone picture and border picture showing the path of the driveway around the back of the property leading to the fence and demonstrating that the property had a driveway rounding the end of the property since the building of the home when horses were originally used in 1889 (the year the house was built limestone foundation stones were used as a carriage stone and driveway border).
Pg 88 – a google map photo showing very worn driveway that can be seen going all the way around the house – worn enough to be viewed from satellite.
Pg 89 – a photograph of the previous owner in 1994 at the back of her house showing well worn and used driveway to her left with fresh gravel.
Pg 90 – A letter from the record owner of the property since 1991 (the previous owner/lifetime tenant’s son) stating that he knew it was a driveway and hauled stone for its upkeep to the property in his truck.
Pg 91 – A letter from the daughter of the deceased former owner/lifetime tenant stating that she knew her mother always came in the driveway and parked in the right most driveway and garage.
Pg 92-94 – the recorded driveway agreement from the previous owner showing that, regardless of their claim of the right to sign a driveway agreement indicates that the previous owner of their property believed that this driveway was shared and that an implied easement was in place which did infact, “run with the land.”
Pg 95 – A letter from the sellers realtor agent that she remembered the property and that it was sold with an easement.
Pg 114 – letter from Plaintiff’s attorney to Defendant’s attorney, submitted by the defendant and therefore in their possession, indicating that the Defendant knew we had a claim of right over the property – sent to them in 2004 2 years prior to the fence building and refusing to stop using the driveway.
Pg 152 – a survey map from 1951 showing that the driveway in its current use with 4 bay garages existed as far back as that date.
Pg 179 – defendant in deposition admits previous owner used the driveway.
Pg 182 – defendant in deposition admits her parents used the driveway.
Pg 185 – defendant admits in deposition that plaintiff was witnessed by her using the driveway on “several” occasions.
Pg 186 – defendant admits that the neighbor on the other side of us used the easement area.
Pg 191 – defendant admits having knowledge of the search indicating an easement.
Pg 192 – defendant admits having knowledge specifically of the easement in 2005 prior to her purchase of the property.
Pg 202 – in her deposition defendant admits that plaintiffs and their visitors used the property up to and after the building of the fence and they put security cameras up to prove it was being used. Continues to admit we tried to use as much as we could of the remaining driveway until they filled it up with plants, pots, barrels, poles, and anything else they could place there to stop us from using it.
210 – Defendant admits we used the driveway and she sent a letter in January 2006 telling us to stop using it (something that would not have occurred if we were not using it or if they were unaware we were using it).
Pg 211 – Defendant admits sending a letter to another neighbor who was also using the driveway with our permission up to January 2006.
Pg 212 – Defendant admits we used the driveway on “numerous” occasions after the letter went out which was 2006 – 3 years after the judge claims there is no factual information of use.
Pg 217 – Defendant admits calling the police on us in January 2006 for using the driveway (therefore clear fact that the driveway was being used by us).


Thus, they have not provided any proof that would constitute notice to the Defendants of a hostile claim of right to use the driveway. The use of the driveway in this case amounts to the “mere permissive use over the land of another [that] will never ripen into an easement.” (See Northtown v. Vivacqua, 272 AD2d 917, 708 NYS2d 221 [4th Dept. 2000], quoting De Forrest v. Bunnie, 201 Misc 7, 10, 1007 NYSd 396).

The Plaintiffs have also requested a declaratory judgment declaring an easement by prescription over lands used in common, a driveway, by adjoining landowners. The court finds that the Plaintiffs have not met the requirements for a prescriptive easement. Therefore, it is the opinion of the Court that an easement by prescription does not exist. [This decision made since judge Caruso can either not read evidence, does not care enough to read evidence, does not understand easement law, or for another unknown reason, through bias, made this decision].

more to come…

[magrep]

Part IV

This is a public record - Index 125669 – County of Niagara - [in square brackets are my additions as a rebuttal of this poor judgment which was subsequently overturned by the appeals court – though the judge has yet to set a trial for our damages or required a removal of the fence pursuant to the appeals court.]

CPLR §3212 (b) states “If it shall appear that any party other than the moving party is entitle to a summary judgment, the court may grant such judgment without the necessity of a cross –motion.” Since the Court has determined that an easement by prescription does not exist, there are no triable issues of fact to be resolved. [ This statement is what makes it very clear that Judge Caruso is incapable of reading the facts of a case. He does not believe there is any evidence to indicate this is a shared driveway. There is a 12 foot strip of land owned half and half by two property owners, ending in garages with a curb cut at the front and made of stone with the defendant's survey showing a “Stone Drive,” a recorded, “Shared Driveway Agreement,” testimony that it is a driveway from 9 people, pictures of cars in it and testimony from both sides that it was used by both sides. If Judge Caruso does not see issues of fact that this IS a shared driveway he CAN NOT READ EVIDENCE!] Upon due deliberation and consideration of the facts presented through documentation and oral argument, it is the opinion of the Court that Summary Judgment should not be granted to the Plaintiff [ which, if this were true should lead to a trial – not a summary judgment]. Therefore, the Plaintiff’s motion is denied and Summary Judgment is granted in favor of the Defendants [And here is hopefully the poorest decision Judge Caruso has ever made or our justice system is in serious jeopardy because a summary judgment as he pointed out at the beginning of his decision is a “drastic measure” and only when there are clear facts of the case. The defendants (despite the list of evidence that this is a shared driveway) did not produce a single witness, a single document, a single photo of anything indicated that this was not a driveway (as they claimed) or was not shared as they claimed, or was permissive use (which they did not even attempt to argue because they were too busy pretending this wasn’t a driveway so why would they say it wasn't a shared driveway).]This decision shall constitute the order of the court

- This was judge Caruso’s wonderful decision! Isn’t this beautiful, voters? My neighbor lived across the street for two years prior to the purchase of this house. She saw us use this driveway. She invented a reason to dislike us and decided she had no obligation to share. She bought the house and immediately tried to eliminate all signs that this house had a shared driveway. She bragged all along that she did not have to share it because she claimed the previous owner did not have a right to sign a shared driveway agreement because the estate had not been filed yet (incidently heirship rights in NY state pass on death, not only in the case of a will being filed) She took down the fence around the second lot showing the garages could not have been accessed from this side. Her and her husband removed the garages. They would run out when my family would drop people off inthe driveway and say, "Excuse me, excuse me... that's not a driveway..." They both constantly called the police on us and said how frightened they were of my husband and attempted to goad him into fights over and over telling him (as he was near death from end-stage liver disease) that he was going to, mop the sidewalk up" with my husband. They are so violent in nature it did not occur to them this was not a likelihood, that people do not act violent, they try to do what is best for everyone in the neighborhood; or at best just leave people alone. The police never bothered to ask any of the other neighbors what they saw or heard. If the had they would have found out that the people who appear like frieghtened lambs were the ones starting threats of violence. But the police would buy thier gossip that we were the ones making threats. And this, folks, is why judge Caruso decided in their favor – because town gossip and lies decided this case, perhaps from city officials, perhaps from the defendant’s lawyer who made many comments which indicated private conversations with the judge. So we have put up with their pit-bulls running in our yard, her husband threatening us, her daughters throwing stones at our house, her son and his friend throwing stones into our yard and commenting as he walked by, her giggling and pointing and staring, her hacking at our tree, poisening our plants, blocking our driveway with her van, loading her garbage in our driveway, culminating in her hitting me with her car in my driveway and the police refusing to fill out a police report. There is only one explanation if this corrupt behavior had not influenced Judge Caruso and that is that Judge Caruso can not read case evidence.

One might still have that bit of doubt, thinking this isn’t possible, it makes no sense! Well, perhaps their attorney made a roaratory extraordinary of oral arguments and our attorney stumpered and stammered an unintelligible oral fiasco! Well, that’s what’s next… more to come… I shall present the oral arguments next and all can see that this case is even far more ridiculous than the decision above.

[magrep]

To demonstrate the "evidence" the defendants produced. They gave ridiculous photos of the end of the driveway with a thin layer of mulch and dirt on it trying to make it look like it was not a driveway. They also offered the comments that the city attorney and city historian told them that they could put a fence in and that this wasn't a driveway. No of these individuals came forward to actually say anything of the kind. The defendants went so far as to list one, Elaine Schmidt, as a witness on their answer. Elaine Schmidt was the former owner/lifetime tenant who was long dead, and known to be long dead when she was listed as a witness for the defense. They told police that we had no right to use the property and that it was not a driveway. One officer screamed at us that she could park over the driveway anytime she wanted because she could park all the way up to her property line. Incidently, city ordinance in the City of North Tonawanda states that you can not block a curb cut. Just because someone throws some mulch down and says, "from now on this isn't a driveway and from now on it never was a driveway" does not mean they have a right to block a city "right of way" i.e. curbcut/concrete driveway skirt.

[magrep]

This is a public record - Index 125669 – County of Niagara - [Squared brackets are my comments)

Oral Arguments:

THE CLERK: Index number 125669, Kessinger versus City of North Tonawanda [error by the court this case was Kessinger versus Sharpe]. Please note your appearances beginning with the Plaintiff.
MR. TIEDE: Daniel Tiede, T-I-E-D-E, appearing for the Plaintiff.
MR LAUB: David Laub appearing for the Defendant Sharpes.
THE COURT: All right. Mr. Tiede, it’s your motion. Go ahead.
MR. TIEDE: Your Honor, this is an action for declaratory judgment declaring an easement by prescription over lands used in common, a driveway, by adjoining landowners where the Defendants erected a fence down the center of a common driveway preventing its use. This motion is brought as a summary judgment motion under CPLR section 3212. The relief prayed for is an order declaring an easement by prescription over the driveway and ordering the immediate removal of said fence and that the Defendants be permanently enjoined from interfering with the Plaintiffs’ use of said driveway.
The facts are as follows. We have two neighboring houses on Bryant St. in North Tonawanda. The Plaintiff’s house is 216 Bryant St. which is on the left if you were to look at the two houses from the street and has for over fifty years shared a driveway with the Defendants’ house located adjacent to the Plaintiff’s house at 220 Bryant St. The driveway was used and shared openly, notoriously, continuously and under claim of right for over fifty years according to witnesses. I have in my moving papers affidavits from six non-interested witnesses. These are sworn statements swearing to the fact that it was used in such manner. The witnesses are Richard Green who lived there for thirty years, he resides across the street at 217 Bryant St.; Jackie Green also residing across the street, and she has so lived there for thirty years; John Sera (phoetic), residing at 215 Bryant St., also across the street, he has lived there for fifty-seven years; Vickie Sera, residing at 215 Bryant St., also has lived there for fifty-seven years; Joyce Bitner, a neighbor adjacent to the Plaintiff’s house at 214 Bryant St. has lived there for twenty-three years; and Susan Grant, the realtor who sold the house to the Plaintiffs in 2002 an represented it as sharing the driveway. All six of these witnesses testify to continuous open and notorious use under claim of right for the prescriptive period. Affidavits are attached to the moving papers of each of the witnesses [Thus if Caruso had read the oral arguments or the case evidence he would have found proof of witnesses].
There is also physical evidence of the shared driveway including photographs taken in 2005 which depict an obviously old driveway pad, photographs of garages behind the Defendants’ house which could only be accessed by the shared driveway, photographs of former fence configuration. Then there is photographs also of the current use of the north side of Defendants’ house where he is now parking his cars which is obviously not a driveway. There is a survey made in 2003 for the Defendants where the area between the two houses is clearly labeled driveway and shows a driveway between the two houses [Thus, if Caruso had read the oral arguments or the case evidence he would have found proof within the photos that this was a shared driveway].
In 2002 the Plaintiff purchased his house knowing of the driveway. At the time there was no easement found on record. One was then subsequently recorded by a daughter but that is not really material to this case. In 2005 the Defendants, Jeremy and Courtenay Sharpe, acquired 220 Bryant St. and in January of 2006 they erected a fence down the center of the shared driveway with only one day’s warning [ this is an error in the record it should be one week but evidence of this having only been a week’s warning was in the case evidence, a police report the day the fence went up dated 01/23/06 and defendant’s deposition stating it went up in January] making it impossible for either the Plaintiffs or the Defendants to use said driveway and the fence is the cause of this action.
The law in this case is very clear and well-established. An easement by prescription is an easement established by continuous use for the full prescriptive period which in New York State is ten years. Such use must be open, notorious, continuous and exclusive and the element of hostility will be implied. The second edition of New York Jur recites where a driveway, private road, lane, alley or passageway lying over and along the boundary between lots or tracts of land has been used without interruption by adjoining owners for the full prescriptive period and for a common purpose and without any oral agreement therefore being shown, the use of each owner has generally been regarded as adverse under claim to the other and claim of a prescriptive easement by either party has been upheld. There is a large number of cases that hold this. An illustration from one of the cases is in an action to enjoin the Defendant from interfering with Plaintiff’s use of a right-of-way easement running over a portion of the Defendant’s adjoining property, the Plaintiff was held entitled to injunctive relief where the Plaintiff’s use of the driveway was open notorious, uninterrupted and undisputed for well beyond the prescriptive period as well as portions of the parking lots to the rear. That is from Cannon –v- Sicora (phonetic). A lead case on this is Wojcieszak v Michno. Would you like the citation?
THE COURT: Yes.
MR. TIEDE: 1949 case, it was second series New York Supplement – it doesn’t say that here. Hang on a second; 197 misc. 350, 92 New York supplement 2nd 815.
THE COURT: 92 New York supplement 2nd or New York supplement?
MR. TIEDE: New York supplements 2nd 815.
THE COURTE: All right.
MR. TIEDE: This was a case in Erie County actually the city of Buffalo. It was Rees St. which runs near Buff State. The owner of 56 Rees St. and its predecessors in title had used actually a thirty-one-inch strip for pedestrian access between two houses to the rear of the property. As in the present case the owner of 50 Gorman St. (phonetic) which was adjacent and who actually owned eighteen inches of the thirty-one-inch strip then built a fence right down the center of it enclosing his eighteen inches despite the fact that the Plaintiff still had perhaps thirteen inches to squeeze by between the houses. The court ruled it wasn’t enough. It ruled that the continuous use testified to was open notorious, continuous and exclusive and had ripened into an easement by prescription. Another case was Cannon versus Sicora. This was a Second department case. The citation on this, I’ll just get the sub-citation if that is okay.
THE COURT: Yes.
MR. TIEDE: 531 New York Sub 2nd 99. It’s a 1988 case. This was one that had a driveway to the parking lot in the rear of the property. The Court found that this right-of-way was open, notorious, uninterrupted and undisputed for well beyond the prescriptive period as in this case and it also found the adjoining landowner and his predecessor had used the driveway and created an easement and the fact that – the adjoining landowner – did not negate presumption of adverse or hostile use by the Plaintiffs for purposes of establishing easement by prescription. Accordingly the use was presumed to be hostile casting the burden upon the Defendant. The trial court found no easement but the appellate court found the fact that the Plaintiff shared the cost of maintenance to be dispositive and it wasn’t mere neighborly accommodation on the part of the Defendant.
Also another case here is Duke versus Summer. This is the last one I’m going to mention. It’s a Third Department case where people had bought land near a lake in 1953 and used the Defendant’s property to access the lake during the summer. The Defendant who acquired title in 1989 from their parents informed them they were trespassing in 1991. An article 15 was brought as in the present case. The Court ruled the Plaintiff’s use, even if seasonal in this case, was still open, notorious and seasonally continuous. The case also recited Defendant’s proof that the Plaintiff thought she had permission of some sort did not negate hostility. Also we cited the conclusory testimony is insufficient to defeat a Plaintiff entitled to summary judgment.
In the present case the Plaintiff has proven with sworn statements of six non-party witnesses and verified by photographs and a survey map that the driveway has been in use for the statutory period, the use was open, notorious and continuous, hostile and under claim of right for period going back at least fifty-seven years which is well over the ten years required by law in New York State [Thus the judge was spoon fed the information that New York state’s period of requirement for an easement was 10 years, not the 3 years he claimed, incorrectly and contrary to testimony from both sides, that we had not used the driveway]. The Defendant has up until this time failed to find a single witness, map photograph or any evidence of any kind to factually refute any of these findings, nor has he presented to me a single case to dispute the law that’s been recited herein. The Defendants knew that there was an easement here and built the fence despite that.
I submit, Your Honor, that there is no triable issue of fact regarding the existence of the easement by prescription which is the issue before the Court today. Therefore we pray relief. Would you like the recital?
THE COURT: Go ahead.
MR.TIEDE: I pray for a judgment granted to the effect that the Plaintiffs have an easement or right-of way over and upon said strip of land between the houses of the Plaintiff and the Defendant for ingress and aggress of vehicles and pedestrians to their gages in the rear of the premises; that the Defendants and their representatives be permanently enjoined and restrained from in any way obstructing or interfering with such right-of-way; and that the Defendant be directed and ordered by this Court to remove the fence and any other obstructions which would interfere with such right-of-way and use.
THE COURT: Thank you. Mr. Laub.


Above is the oral argument of the Plaintiff –indicating where the facts are, what the case law is; complete and concise. More to come – the oral argument of the Defendant which, by the fact that they won the first proceeding, must be a brilliant oratory, right? We shall see!

[magrep]

MR. LAUB: If the Court please, Judge, as you know we’ve pre-tried this case a number of times. I think the Court is well aware of what we’ve got for a situation. What I’ve done, Your Honor, to sort of make this a little bit easier, I’ve put together some of the photographs that counsel and I have been using back and forth and the Court has been using, so that the Court could follow along on my argument and make it a little bit easier of some of the points that I wanted to make for this Court [Here the defendant hands additional evidence, not provided to the defendant, though previously requested pg 199 line 20 through page 200 line 1].
THE COURT: All right.
MR. LAUB: One of the biggest problems we have here is back in January of ’06 my client sent a letter, and said we’re going to up a fence up. We did it in April, three or four months later [This is where the judge gets the impression that we did not complain about the fence right away. Incidentally, the defendant, in deposition page 213 line7 (original deposition pg 46 line 7) admits that the fence was “a week or two” after the letter was sent on January 10, 2010. No acting, though, would not invalidate the easement unless we did nothing for 10 years. ]. Nothing happened, no action was started until after we put the fence up [This is also a lie. The record indicates our attorney wrote a letter to the parents, who had owned the property, that we would continue to use the driveway and they would be sued if they put up a fence pg 114. The letter sent by the current owners indicated the fence would go up “in the spring” but was placed one week after the letter not giving time for a response. Furthermore, a police report pg 160 the day the fence went up on 01/27/06 indicates, “The caller from 216 Bryant St. is opposed to neighbor installing a fence. Complainant has a call in to her lawyer and will take care of it that way. The dispute is over a 100 year old easement for shared driveway and the neighbor is placing a fence down the middle of the driveway rendering it unusable to 216 Bryant.”] One of the problems is they’re claiming that there is an easement by prescription. Originally they had pled an implied easement or an easement on record because of the fact that the house in which my clients live and own was owned by a lady who I guess left town, went to Florida, died, and then they’ve got – but there was no estate and then they got an agreement, an easement agreement signed by her daughter who never lived there but signed by a daughter but they have withdrawn that objection [ While the defense tried to say the signor had never lived at 220 Bryant the defendant admitted she lived there in her deposition pg 179 16-17 pg 188 line 7-20. However, we had multiple easements: by necessity, implied and prescriptive. We changed our argument to prescriptive because it was the one that did not have an "issue of fact" that would force a trial.]. Now they’re going with open, notorious, continuous. That is a real problem here because basically my clients – Mr. Kessinger bought this property in ’02 [This ridiculous rambling sentence where the attorney has forgotten who he represents is not a typographical error]. My clients’ parents, Barbara Crane and her husband, owned the property. They bought it. They told Mr. Kessinger don’t use the driveway, and he didn’t. Some days he did, some days he didn’t [the plaintiff does not need to prove he used the driveway every single day to have an easement. And here, the defense attorney admits the driveway was used]. They’re claiming open, notorious, continuous and uninterrupted. They can’t prove that to the Court. They have got some affidavits from people that lived across the street that said it was in use. They got an affidavit from the son of a woman who is blind claiming that she saw all this happen but that doesn’t really go t the crux [this is a ridiculous statement, none of our witnesses were blind. Furthermore, we had multiple witnesses who were not related to us or known to us prior to our living at 216 Bryant]. The crux of this case and the key thing here because the last time we came in, we hadn’t had the opportunity to examine the witnesses [The defense examining witnesses was not necessary because of the clear facts of the case. Cross examination is not necessary when the defense can not raise a single triable fact]. We did take a deposition of Mr. Kessinger which I’m going to submit to the Court. It’s not long but it’s very, very probative of this whole case. This was done last October of ‘07. What did Mr. Kessinger say? Well, he said that Barbara Crane told me don’t use the place in any uncertain terms. Mrs. Crane, and I’ll quote, Mrs. Crane told him that she would never have bought the property if the City of North Tonawanda hadn’t assured her that she could build a fence down the middle of the driveway. Now, that’s what he said of Mrs. Crane [This interesting defense indicates that 1. The purchaser had a dirty agreement with the city. This does not invalidate a right to an easement; and 2. It proves a hostile right – the plaintiff continued to use the driveway despite being told not to use it. 3. This is hearsay evidence – no one from the city ever testified or talked to the defendant, for that matter. She admitted when asked if the city ever had any “reference” to the “property between the houses” she states, “Not to my knowledge, no.” pg 174 lines 17-19].
THE COURT: Now, when did she say this to him?
MR. LAUB: When she bought the place.
THE COURT: When was that again?
MR. LAUB: 2002.
THE COURT. Go ahead [Here we see the court paying particular attention to the fact that he was told not to use the property. He seems to be ignoring, however, the facts of the case, the defendant admits, “ Q: And you sent this letter to Mr. Kessinger because you wanted him to cease using the driveway; is that true? A: We wanted it in writing, yes. Q. But that’s what the intent was, to stop him from using the driveway? A: Yes” pg 211 line 5-11. ].
MR LAUB: Then my clients eventually – my client bought it from her mother type of situation [the hesitation and confusion here is because Laub was NOT the defendant’s attorney in this transaction, he was the seller (parent’s) attorney. The Defendant had no attorney. The biggest problem is though once again Mr. Kessinger testified that he hired an attorney, Darrell Huckabone, to take care of this easement problem. It’s interesting to note that Mr. Huchabone supposedly based upon the testimony of Mr. Kessinger said we’ll file the estate and get the agreement filed. The realtor representing the Kessinger’s assured him that there was an easement. He relied on a real estate agent to give him legal interpretation of whether or not there was an easement or not [We had an attorney. Also, a realtor is a NY State licensed professional hired to sell according to the regulations of New York State Real Property law. The defendant, however, had no legal advice from a realtor, they purchased their property from their parents, with their parents attorney, with no lawyer or realtor of their own to explain easement law to them. Furthermore, the previous owner could have filed a copy of her estate in any county in the state. It is very possible that her estate paperwork was filed in a different county as she left the area for a week or two often. She is allowed, by law, to file in any county in the state. Furthermore, her mother died in Florida and a will would have been filed there. Furthermore, the defense search was not a professional search. The female defendant, who babysits and delivers papers for a living and does not have a college degree or legal training admits in regard to the searches for an estate that she did only in Erie and Niagara County, “I did them myself,” pg 194 lines 1 through 11. This was not a professional search that should be used as a “fact” of the case]. It’s obvious that he didn’t take it to heart because he hired a lawyer to do it and it wasn’t done [A prescriptive easement is established by use and this is a smoke screen that the judge choked on and spit out as a fact of the case in his decision]. That’s why we’re in court today because there was no easement agreement back in 2002, 2003, 2004, during any of this period of time I asked him what happened. He said well, I contacted my attorney but he did no longer practice law and the file was gone and blah-blah-blah. Once again we’re here today with a gentleman who relied on an attorney to do something and he still went ahead and bought the property without the knowledge or without the understanding or the assurance that he had an easement to use the property [again incorrect, we had a shared driveway agreement and shared the care and use of the driveway amicably with the owner until she was evicted by the police after tax auction. Each owner of both properties amicably shared this driveway from 1889 to 2006 until the territorial defendants incapable of understanding “share” built that fence]. It couldn’t be open, it couldn’t be notorious and it couldn’t be continuous because for the last six years he hasn’t been able to use it. Now, what did we do? We went as the pictures show, we went and put a fence down our side right on the property line. We’ve come forward during this proceeding and said to the Court and said to counsel we will move the fence over more so on our property right next to a stone walk so that you can get your car in there. He said no, I want the whole fence torn down [ Offering us an 8 foot driveway is ridiculous. Take a look at the picture, look where the sidewalk is and ask yourself if you would be able to drive a car down the area without the defendant’s sidewalk included. This driveway was claustrophobic to drive down even with both sidewalks]. Well, I have here today, Judge, and I’m going to submit this to the court and to counsel certain documents [ Shyster, Mr. Laub passes more paperwork to the judge (when discovery is long past) ] What we did was we went and we got the width of his cars so he could go in an out. They come out at seventy inches, seventy-one inches, and I think depending – it’s seventy-four inches. What we’re proposing for this Court in order to satisfy and meet them halfway is that we’ll move the fence over and we will create a hundred and ten inches, a hundred and ten inches. You can see by the one document there, Your Honor, the one photograph sowing where the fence is on our property, we can move the fence over right next to the sidewalk and take the fence, if the Court could watch for one moment, we have a post here and the fence on the outside. We would move it over, take the fence and put the slats on the inside [The width of the car is not at issue here – the issue is the existence of and the placement of where the land was previously used for 10 years, open, notoriously and under claim of right – which included all the land “between the houses”].
THE COURT: Okay.
MR. LAUB: That would create – they keep saying our mirrors stick out, we can’t get through the back, what have you it can’t happen, can’t happen based upon the width of their cars. We have created a hundred and ten inches in our proposal for a seventy-two inch wide car. Even if his mirrors stick out two inches on this side, it’s under eighty inches and we’ve created a hundred and ten inches. So under the circumstances I think we have tried to meet them halfway. We don’t have to. It’s our position that there is no easement, implied easement or easement by prescription or constructive easement.
It’s also our position that they have not prove as the Court well knows in an order to show cause and in a summary judgment motion we’ve got to assume for the sake of the Court’s argument that everything that the Defendant is saying is true but we still get a judgment [ No, indeed, this rambling is not a typographical error – this was actually the defense oral argument]. That isn’t the case. The only thing that could happen here is we would have to have a hearing to determine the facts issue because there is a big area of what happened during a certain period of time, what did Mr. Kessinger actually do once he found out that he didn’t have an easement by prescription or a constructive easement or implied easement. Did he make any attempt whatsoever to do anything? No. Once again that is a question of fact. The court does have the power and as I put in my papers to rule in favor of the defendants and grant a summary judgment motion to us, a reverse summary judgment motion, and I have so requested that. The minimum would be a question of fact to be decided by the Court. Under those circumstances I think, Judge, that he wants us to rip up the fence. As I’ve advised the Court we put in our papers , we have small children. If we have a guy, neighbor, whatever it might be, friend of his, guest, whatever it might be, coming in and out like this and the children playing on the side of the house, all of a sudden we’re going to have accidents [This is a ridiculous argument – the fence could have been placed in such a way as to cut off the driveway from the rest of the double lot without impacting the easement or the children’s safety. The only pedestrian known to have been hit in the driveway was the female defendant hitting the plaintiff as her husband waved her on and said, “keep going she isn’t stronger than the car.”] I know it doesn’t mean a lot to maybe Mr. Tiede and his clients but it does to our clients. We put a fence along there. We even agreed to move it over. We even propose we sell him the strip of land outside of it so we would just keep the one strip next to the house. Once again they want everything that we proposed thrown out. They want us to rip out the fence, have no protection for our children and allow their cars to go in and out because that’s they way they thought they were getting it even though they had no protection at the time of purchasing the house, that’s they key thing Why did he go through with this knowing full well he never had a written agreement or easement by prescription or anything else [this is a ridiculous attempt to “dumbify” the plaintiff. Question of validity of the easement was only brought up after my unethical neighbors decided to ignore its presence]. Now, we had to get a permit from the North Tonawanda officials to build our fence and we did. How would they give it to us if we weren’t allowed to have a fence on our property? How would they? [Yes, that is exactly what they did]. They have stated in no uncertain terms right up until today that there is no easement on record that gives these people the right to go in and out on our property [No one from the city testified. The city’s negligence in issuing a building permit does not void an easement]. However, we have gone the extra mile to try and accommodate them and they’re still not satisfied [We offered a written settlement to buy the property between the homes for $1500 with the fence having a right angle at the crab apple tree to the corner of the house. They wanted $6000, a reward for ill manners, expected us to pay for and move the fence, and only offered a portion of the easement. Should they be allowed to kidnap our cat and demand payment for its return? How is it any less ethical to make us purchase our kidnapped right? The defendants refused to put anything in writing and present it as a legal document]. So, under the circumstances, Judge, if the Court doesn’t feel that this motion is ripe for a judgment, summary judgment motion for the Defendants, the least we should have is the right to have a hearing on the questions of fact that took place during this whole period of time. They’re claiming fifty-seven years yet it would appear in the last eight years it hasn’t been open, it hasn’t been notorious and it hasn’t been uninterrupted and continuous [ Once again, though this shyster can not add, he still hasn’t managed to inaccurately add to the prerequisite 10 years necessary to make an easement null]. So therefore they have not met their burden of proof [we offered plenty of evidence to the contrary. For example, in addition to all the other examples, on page 186 lines 4-7 of the defendants deposition, "Q. So it's fair to say that more than one person has used that driveway, to your knowledge, anyway? A. Yes, Q. As a driveway or access point, however you want to refer to it A. Yes." in contrast this oral argument by the defense has no factual information it is a stammering smoke cloud with no facts].
Thank you.
THE COURT: Thank you. Now I appreciate the comments from both sides. Obviously this is what may on the outside seem like a simple issue or argument, but it is very involved. I would like to do a little more research [The only research this judge did was to find some convoluted evidence involving easements with commercial property that gave inapplicable evidence which APPEARED in favor of the defense but was not relevant to our case – he did not, however, read any of the case evidence]. I’m going to reserve my decision. You’ll get my decision in the mail Thank you everyone for being here today.
MR. LAUB: The only think I would like to submit to the Court is the deposition transcript that I referred to.
THE COURT: Any objection?
MR. TIEDE: No, as long as we can also submit the transcript and I think we already have.
THE COURT: The deposition of the Defendant.
THE COURT As a matter of fact I’m pretty positive that you did.
MR. TIEDE: Your Honor, do I have an opportunity to reply to anything he said?
THE COURT: I think I’ve heard enough from both sides. You both were very thorough. I appreciate that very much, both excellent arguments. Thank you.

So, compare oral arguments.

Plaintiff: case law quoted, clear and concise, facts (proven in the evidence and by eyewitness statements and depositions).

Defendant: no facts presented, shyster evidence (after discovery has ended), hearsay, no law, not concise, rambling and inaccurate.

MORE TO COME – answers, bills of particular, and motions – the thorough motion of the plaintiff’s attorney showing legal cases and the ridiculous documents of the defense with their wonderful answer “this is not a driveway” as their defense.

[magrep]

The latest update - Hurray! The fence is down. Of course now we have a battle to get it repaired as my neighbors cut the posts off at the ground. We also have to get the judge's order corrected becuase he allowed them to move the fence to a point that will interfere with our ingress and agress. Now, we will set up posts, take a picture to prove that and seek remedy from the higher courts. We also, have not been granted a trial for damages as of yet. Now, also, on the plus (for us anyway) our neighbors have been forclosed on and have been moving furniture out and are expected to be out shortly. So, thanks heavens this is ending. Folks, when you do something to tresspass on the rights of others consider the consequences. My neighbors have lost their home over the support of keeping a fence they didn't have a right to keep. they paid for the fence and for the attorney to keep it but in the end lost the fence and the house.

[magrep]

It is dawn and since our neighbors took down the fence in the daylight we can see the damage they have done to the driveway. They had told us they were sawing them off at the ground and my husband said, "whatever" so that they would just get it done and not start a new argument. Later the wife came out and said, "We did it to the court order." Which is true. The judge crossed off everything about repairing the driveway. This is required by law, incidentally, when someone commits a tortuous act that damages property they must repair it to its original state. The judge was kind enough to cross this off to cause as much additional litigation as possible. If it took a jack hammer to put it in then it was compact and within a year we are going to have big caverns there. If they didn’t remove the posts someone is liable to blow a tire on the driveway as the dirt surrounds it. We left and did not see their finishing as I had a sleep study to do. My sleep has not been adequate since I have worried about people sneaking around in my yard each night. Anyway, they may have removed the posts and filled the holes with dirt. They have added soil and dug up the end of the driveway where she planted a garden 2 years in a row to taunt me; corn and squash to verbosely admire when I was in the yard. What they should have done was dig up (professionally) a foot of the gravel, filled the holes, and then put in new gravel. However, they probably do not understand that there is a structure principle to a stone drive as they made their own stone drive by dumping a bunch of inch size crushed stone in their driveway which was largly absorbed by the surrounding earth. I feel so angry that I have gone through this all this time by the system and these people. We didn’t do anything to anyone. We got along fine with people and if we sensed an issue with people we just left them alone. Having said these things, looking at it from a perspective leaving all the emotion of our victimization behind I can say a few positive things. I can say that now that these people have had to face that they did something wrong (even if they can’t admit it), they have ignored us and are continuing to do so. I can say that I do feel some pity and empathy for these people. It is a horrible thing that they drove up this huge hill, poured mud on it, and then (wanting to be on the top), couldn’t understand the slide down the muddy slope. They took out a huge loan on a nearly paid for house to put in a fence, bought wood stoves instead of a furnace (small room wood stoves not an efficient wood furnace) and then spent, spent, spent the rest for a ‘keeping up with the Jones’ episode. They took out a high enough home equity that they had exactly enough to pay their mortgage. The husband lost his job and could not find a new one. They continued to pay their lawyer for this fiasco and continued to spend money on their yard. They spent up all the credit they had and then lost their home to foreclosure. They are moving as we speak. I see the pain this family has. I see that a dawning seems to be coming over them. Because everything has gone their way for so long they have not been able to face the reality of their behavior. This has culminated in the loss of their dream. Their children have a wonderful yard and rooms of their own which they are loosing, they had the pride of home ownership. They had the potential, though not utilized, of being in community. They now have the sad realization that they have lost it all through poor planning and “living large.” I am so thankful that I have a job, a husband, my children have their health and are in college working toward a good life to come for them. While my husband and I are not in perfect health we have so much. I am thankful for my old brown siding because it is on my house. I am thankful for my car repairs, because it means I don’t have to walk. I am grateful for my senile old cat because it means I have company. I am grateful for my husband’s snores as they mean I have a place to sleep. I am grateful for the dishes he breaks because it means I have food to put in them. I am grateful for the pain I live with every day because it means I have every day to see the sun perkle through the grasses. I am grateful for my pet that recently died because she was such a wonderful friend I am happy to have known. Perhaps these folks learned from this and can begin their new life not repeating the old mistakes – that is what I pray for them anyway. They are just people who made very bad choices. They couldn’t admit their wrong; a sin I am certainly not without. I am so grateful my wrongs have not brought me to the same road of life. I hope such a road is not hidden to me as it has been to them. I forgive these people through my thankfulness (though I hope to never see them again). Peace, beauty, and acceptance are the meaning of life.

[geberaj]

What I want to know now is: can you drive in and out of the driveway without wrecking your tires, and did the neighbors take down enough of the fence so it no longer obstructs the easement?

[magrep]

Yes, the potential exists to ruin the tires. Because the judge removed the portion saying they have to do the work in a workman like manor, remove the posts, and filling in the holes they figured they didn't have to do it. They do not understand it is part of the law to restore when you have committed a tortuous act over another's easement and damaged it. So, by the judge crossing off that portion in the judgment he managed to give them express permission not to do it properly. They sawed off the fence at the posts and then explained it was, ‘according to the judgment.’ The husband came over and somewhat apologized for 4 years of harassment saying he didn’t like bullies because he had been bullied and that it wasn’t his idea to put the fence up. He came over because his wife had just been screaming out her bedroom window at us (which begins the answer to your other question). My husband drove a van through the easement (my son has a van that is at the shop being repaired). The van hung at least one foot over where the judge said the fence could be. So, the judge made a new interpretation of where the fence should be by coming to the sight after appeal (which is introducing new evidence and not lawful). He felt that from the crab apple tree to the corner of the sidewalk was enough room. However, an experienced professional driver can not fit a van through that area and in fact it hung over by over a foot. They did not properly restore the property (she even dug huge holes to dig up the plants she had planted after an injunction to prevent her from doing this), they left the fence posts in at the ground, and the judge has a placement on record that will allow the next home owner to place the fence over the easement. Way to go, “honorable” Caruso!!! As for the apology of the neighbor, while he absolves himself he doesn’t address the issues of his wife, who came over Friday to sort her papers (even though she doesn’t live there anymore) so she could loudly talk, point, laugh, and stare in our direction. Her mother’s boyfriend yelled as he brought a friend of her’s back after moving, “Suck my ‘&*&*&.”” And, the girlfriend of hers let us know, “you’re going to rot in hell.” We ignored this. So, perhaps one party figures he has washed his hands of it while he lives in the same house with someone who still promotes the nasty behavior. thank heavens they are moving!!!! Classic enabling behavior. Now, we have to go after Caruso because he has made it impossible to hold the parties responsible guilty and positioned himself in their place for some unknown reason.


What I want to know now is: can you drive in and out of the driveway without wrecking your tires, and did the neighbors take down enough of the fence so it no longer obstructs the easement?

[magrep]

Well, Judge Caruso, good thing you allowed that fence to protect the defendant’s children. They no longer live there. They choose to sink every cent they had into the defense of their spite fence while representing themselves pro-se in foreclosure. These children were raised from toddlers to older children, home schooled, where they were isolated in an environment of hatred, running to the window to look out and yell scornful comments. They thought that, since everyone in the legal industry catered to them, they were led by the hand of god to personally smite us and in the end lost their home. Do you believe you have done them a favor? And what about us? I was raised with a family who took matters in their own hands. I did not follow their teachings. I argued with family over and over that I would do everything by the law and it all would be okay in the end. Burning their fence down, I argued in family gatherings, was not the answer. Violence was not the answer. I believe in self defense and I am firmly against other physical actions of violence. And yet, here I am 4 years later after having to pay $20,000 to get my rights back (approximately a years’ salary) without a dime of what I have spent. It is time for you to be the man of justice you ought to be. It is time for you to stand up and admit (if only to yourself) that you erred. You continue to err by placing the fence at a new location also obstructing, however small, a portion of our easement. Shall we have to go through this with the new neighbor because you failed in your obligations to the Appeal Court who stated, “remove the fence forthwith.” They did not state, “remove part of the fence” or “move the fence to where you feel it ought to be after new evidence.” You listened to someone who mis informed you – certainly a human error of judgment. Is this what you planned when you wished to be a judge? To have petty dishonest people win over honest law abiding people through corrupt tongue and ear? This is a shame! I feel ashamed. Do not move to North Tonawanda, folks; it is a shameful place. For those of us already here perhaps we can work together to stop this dirty little secret society of ours.

[magrep]

If you are not fresh in reading my and my husbands case please read it again if you have any personal interest or knowledge. The below is an address to neighbors to please think about what they saw in the rare happenstance that they seek out the information in regard to Kessinger v. Sharpe. I encourage my neighbors to read this. It is shocking that such an injustice occurred. One might think it was the judge's laziness that caused this but if you look it indicates it is a likelihood that he was receiving feedback from someone who felt we were the guilty party and the individuals who harassed us for four years were sweet angels. My neighbors went on a constant campaign to trash us verbally with any new neighbors who came to town. All the neighbors who lived here when it was a shared driveway at purchase supported us. When someone new would come to town the wife would run over and immediately discuss how we were harassing them. She would tell all her family we were harassing them and anyone passing on the street. It was an outright campaign. I believe someone did the same to the judge as well. We, however, just ignored this and kept to ourselves. We were not going to go to each and every person and tell them the truth so that we could throw fuel on the fire and create a hostile neighborhood. Well, my neighbors, upon realizing we had filed an appeal and would win our easement back ceased to pay for their mortgage. They lived in it right up to the day they were supposed to have the fence down and they took it down in the dark and moved in the morning. The husband went back to school prior to this just long enough to take out student loans. Once he mysteriously did not need student loans anymore he stopped going to school (coincidently at the time when the lawyer was done being paid for). My ethical neighbors received an inheritance of $55,000 in late November. They immediately bought a new house with this $55,000. So, instead of paying the debt for the house they bought for $1 and then took out a $57,000 loan on they decided since they could not have their fence they had no obligation to keep the house and felt no ethical obligation to pay for the loan they took on this house. They abandoned their home, and without any sense of obligation took their $55,000 they should have paid their huge debts too (credit cards, student loans, and $57,000 home equity) and bought themselves a new home in Middleport. When they moved their friends and family would screech obscenities at us since they were unaware the people were moving due to foreclosure and stupidity. We found out a little more about what they had to say about us after they moved when people told us what they had to say. I wonder how it is that people can believe we did the harassing? Any of you reading this who experienced this 4 years of events ask yourself what you saw and heard. You saw my neighbors park over the driveway line for four years. You did not see us do that to them. You saw them place their cans in our driveway where we had to move them to get out (this is what they claimed was our harassment – touching their cans). You heard them constantly slam things: every door to the house, windows, cans, car doors (notice how quiet and peaceful it is now?). You saw them look in our direction and talk about us none stop. Did you think we were unaware of this? Did you see me do it back? How much of that did you see in reverse? Almost none. This is a pretty mean thing, sitting around gossiping about people in front of them. Everyone knows when they are being spoken about from that distance. We forgive anyone who did that with them in front of us, we can’t dislike everyone. But, did I do it back? What you saw was me loose my temper in the 4th year of harassment where my neighbor decided that she could threaten me with her car bumping it into me… pushing me along and knocking me over which finally caused me to loose temper. And what did I do? Did I strike her back, No. Did I throw things at her, No. I just pointed out my side. And she got away with knocking me over with her car. Her husband waved her on and she moved the car forward until she knocked me on the ground. Their constant gossip with the police allowed her to go scot-free the same as it allowed them to have an initial judgment in their favor and to just walk away from a $57,000 loan. Ask yourself if I stepped into my driveway when my neighbor came in it at less than 5 miles an hour in an attempt to park her car where she had been denying our right for four years if I had reason to want to stop her. Ask yourself if it is the same thing to step in front of a car going 30 miles an hour and stepping in front of one on your own property at 5. And, ask yourself if you stepping there means that your neighbor (after making a full stop) has a right to take her foot off the break, put it on the gas and run you over. Keep in mind you didn’t see the more constant things that occurred in the back but I bet she bragged about them…. hacking our tree off, poisoning our flowers (an subtle admissions thereof?) What peace we have now, what a blessing. We are still going to sue these people to get back our attorney’s fees. This woman bragged ahead of time she was going to put this fence there and ignore our rights. Her father stated, “I am going to put up that fence and you and your attorney can watch me drive the first fencepost.” If only our attorney had acted a little quicker we might have been able to get an injunction which could have prevented all this. If anyone is interested in viewing the great philosophical petty nonsense of these great ones who have managed to convince a judge of their greatness feel free to visit their website. You will note a hypocritical meandering of values which are the absolute opposite of the behavior herein. A self delusion website where an individual believes that the entire world is at his beck and call listening to his great sophomoric rhetoric. http://jvsharpe.com/

[Eat My Gun]

Uh, we stopped caring a long time ago.

If the system fails you, seek an alternative remedy....

[magrep]

Uh, we stopped caring a long time ago.

If the system fails you, seek an alternative remedy....


Thank you, I have, though, gotten a lot of positive feedback. Interestingly enough through facebook where people who know me and knew me in the past had run across my writing here, added me as a friend and commented about this. Much of what is written here are facts, not my commentary. For instance, the court records. I have also heard some interesting feedback on other people's experiences with the local courts and the North Tonawanda Police. I have had a number of people have issues of trespass with neighbors where the police have refused to file reports with neighbor issues. I have also received correspondence in regard to police and issues of traffic lights and tickets related to them where liability may have been reduced to the city by way of not filing a report when the city traffic lights may have contributed to accidents. My point here is that people do care, even if it bores you. I can understand your boredom but does not indicate that “no one” cares. In fact, it is rarely true that anything at all applies to “no one” since we can not say that the entire population of the earth was polled and does not care. Thank you, for the advice. I am seeking further remedy, the papers will be filed shortly and activity on this case will soon increase. But you should care as well, as should many people because a judge’s failure to take the time to read the facts of a case and appropriately judge is a travesty. It is an insult to our system and it is what occurs in the most corrupt regions of Guatemala. What is the point of this judge’s presence on the bench? Is it to force people to settle? Is it to wear a robe and admire himself all day? Is it to force people to get along? C’est ne pas lui! it is to settle an adversarial relationship appropriate to the statutes and common law. Furthermore, one should be concerned that lazy, unethical liars managed to use the system to harass a family for several years. I worry for those not intelligent enough to know they have been wronged or too frightened, too poor, or too frail to do something about it. What a shame! Judge Caruso fills me with disgust. “Audi Alteram Partem – hear the other side! – a demand made insistently through the centuries, is now a command, spoken with the voice of the Due Process Clause of the Fourteenth Amendment, against state governments, and every branch of them… whenever any individual, however lowly and unfortunate, asserts a legal claim” (Frankfurter, Felix, in Caritativo v. California, 357 U.S. 549, 558