Appeal from an order of the Supreme Court, Herkimer County (John H. Crandall, A.J.), entered June 21, 2021. The order, among other things, modified a prior temporary restraining order entered May 11, 2021. The plaintiffs and the defendant are tenants in common to six parcels of real property located in Middleville, NY, with plaintiff having a 2/3 ownership interest. The remaining 1/3 ownership interest is owned by Theodore P. Smith who holds a life estate and Anna J. Smith, as Trustee of the Theodore P. Smith Income Only Irrevocable Trust, who holds a remainder interest. Defendant owns and operates The Ace of Diamonds Mine and Campground, LLC on the subject Property. Said business is a single member LLC with the sole member being Anna J. Smith as trustee for the Theodore P. Smith Income Only Irrevocable Trust. As an income only irrevocable trust, Theodore P. Smith is entitled to all income earned by the trust during his lifetime. The income generated from operating the Ace of Diamonds is the means by which Theodore P. Smith earns his livelihood and supports his family. Theodore P. Smith took over the Ace of Diamonds business in 1996 upon the retirement of his parents. Plaintiffs' filed a summons, verified complaint, notice of pendency, proposed order to show cause containing a request for a TRO and preliminary injunction. The verified complaint sought a judgment partitioning the property at a private sale. The court signed the order to show cause which granted plaintiffs' request for a temporary restraining order. In an order entered May 11, 2021 the court granted a temporary restraining order declaring that defendant shall not be permitted to conduct mining operations of any kind during the pendency of this action (CA 21-874). Theodore P. Smith passed away on March 7, 2022. As a result, the remaining 1/3 ownership interest is now owned only by Anna J. Smith, as Trustee of the Theodore P. Smith Income Only Irrevocable Trust. In addition, Anna Jane Smith, as Executor of the Estate of Theodore P. Smith, was substituted in place of deceased defendant Theodore P. Smith on October 18, 2022. The combined size of all six parcels involved in this matter total approximately 51 acres. In an order entered June 21, 2021 the court, among other things, modified the temporary restraining order by prohibiting the defendants from conducting commercial mining operations of any kind on the property during the pendency of the action or arranging for or permitting the commercial mining of any mineral resources from the property during the pendency of this action (Appeal no. 1; CA 21-995). In an order entered September 28, 2021 the court denied a cross motion by defendants? cross-motion to have this action proceed in accordance with New York Real Property Actions and Proceeding Law Section 993; granted a motion by plaintiff for a preliminary injunction, prohibiting defendants from conducting commercial mining operations of any kind on the property during the pendency of this action and prohibiting defendants from arranging for or permitting the commercial mining of any mineral resource from the property during the pendency of the action. In addition the court set the undertaking amount that plaintiffs undertake and post at the sum of $1.00 for all damages and costs awarded by a verdict (or report or decision) in favor of defendants in this action with respect to the granting of said preliminary injunction; and denied defendants' request for a stay of all proceedings in this action pending an appeal (Appeal no. 2; CA 21-1407).
Robbery
JOHN J. MORRISSEY | SUB | |
WILLIAM G. ZICKL | SUB |
Criminal Possession Stolen Property
Burglary
LEAH NANCY FARWELL | SUB | |
V. CHRISTOPHER EAGGLESTON | SUB |
Arson
TIMOTHY S. DAVIS | SUB | |
SCOTT MYLES | SUB |
Criminal Possession Weapon
ABIGAIL DOROTHY WHIPPLE | 10 | |
DANIEL JAMES MATTLE | 5 |
Sex Offender Registration Act
TIMOTHY S. DAVIS | SUB | |
NANCY GILLIGAN | SUB |
Sex Offender Registration Act
Promoting Prison Contraband
BRIDGET L. FIELD | SUB |
Custody
Neglect
THOMAS MANNING LEITH | SUB | |
ERIN WELCH FAIR | 10 | |
ELIZABETH SCHENCK | 5 |
Preliminary Injunction
ANNA J. SMITH | 15 | |
KEVIN G. COPE | 15 |
Preliminary Injunction
Contract
JACK DANZIGER | SUB | |
DANIEL J. BOBBETT | SUB |
Contract
SUSAN M. WEICHERT | SUB | |
DAVID ANTHONY LONGERETTA | SUB |
Original Proceeding Pursuant to CPLR art 78
Summary Judgment
MEGHANN N. ROEHL | 15 | |
JESSE A. DRUMM | 15 |
null
Preliminary Injunction
ANNA J. SMITH | 15 | |
KEVIN G. COPE | 15 |
Summary Judgment
JOHN A. COLLINS | 10 | |
ERIN E. MOLISANI | 15 |
Dismiss Complaint
HILARY C. BANKER | 10 | |
FRANK M. BOGULSKI | 5 |
Dismiss Complaint
MORGAN JAMIE DUNBAR | 15 | |
KIMBERLY A. CLINE | SUB | |
MOLLIE C. MCGORRY | 15 | |
NEAL A. JOHNSON | 15 |
Dismiss Complaint
Settle Record
Summary Judgment
DAVID J. WOLFF, JR. | 15 | |
JOSEPH G. MAKOWSKI | 15 |
CPLR art 78
RICHARD J. LIPPES | 15 | |
DANIEL A. SPITZER | 15 | |
CARIN S. GORDON | 15 |
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