SUPREME COURTSTATE OF NEW YORK
COUNTY OF KINGS
---------------------------------X
ARGO PAUMERE, ELEN PAUMERE,
Index No.: 27786/2010
Plaintiff,
-againstAFFIRMATION IN FURTHER
SUPPORT OF DEFENDANTS’
MOTIONS FOR: 1) SUMMARY
JUDGMENT AND 2)
DISMISSAL
IRINA HOCKENJOS a/k/a IRINA
PARAMONOVA a/k/a
and JOHN HOCKENJOS,
Defendants.
---------------------------------X MS 2, 3, 4
JOHN HOCKENJOS, being duly sworn, deposes and says:
1.
I am one of the Defendants in the above captioned
action. As such, I am fully familiar with the facts and
circumstances set forth herein.
I respectfully submit this
affidavit in further support of Defendants motion for summary
judgment, consolidation and dismissal.
2.
Defendants’ opposition for failure to attach a
pleading should fail as Plaintiff failed to allege any
prejudice.
3.
Attached as Exhibit A is the missing pleading.
The Order to Show Cause filed by my previous attorney
contains all necessary facts and expert opinions upon which
Defendants should be granted the requested relief.
-1-
PLAINTIFFS FAIL TO SHOW PROXIMATE CAUSE FOR ALLEGED CONSTRUCTION
DELAY CLAIMS, MOREOVER, PLAINTIFF’S LAWSUIT CONSTITUTES A DIRECT
VIOLATION OF DEFENDANT’S CIVIL RIGHTS THAT HAVE MATERIALLY
INJURED AND DAMAGED DEFENDANTS.
4.
Plaintiffs cannot establish proximate causation and
damages by Defendants merely exercising their civil rights under
the New York State Constitution, Civil Rights Law §§ 70-a, 76-a.
In fact, its Plaintiff that have violated this statute, and have
and continue to injure and damage Defendants who should be at
minimum be awarded full compensatory damages and legal fees and
disbursements by the court by separate motion.
5.
As such, under New York State CPLR §§ 3211(g)
Defendants on a motion to dismiss under the New York State antiSLAPP [Strategic Lawsuit Against Public Participation] law, the
court may award Defendants one or more of the following kinds of
damages: costs and attorneys' fees, other compensatory damages,
and punitive damages as follows:
a.
In order, to receive costs and attorneys' fees,
Defendant must show that the Plaintiff's lawsuit
against Defendant lacked a basis in fact and law
(already established by relevant evidence proffered
under Defendant’s Summary Judgment upon Plaintiffs).
b.
To get compensatory damages (i.e. damages that
compensate you for any other harm [Defendant’s pain
and suffering] as a result of Plaintiff’s SLAPP),
Defendant must also show that the Plaintiff was
maliciously attempting to impair [or restrain]
Defendants right to free speech, public participation
-2-
or petition [for example in this case, through
Department of Buildings and other City agencies
including in-situ construction at Defendant’s
premises, etc.] (the Plaintiff’s law suit and
affidavits themselves are sufficient proof made under
penalty of perjury together with Defendant’s separate
electronic evidence and recordings/statements made by
Plaintiffs and others on Plaintiffs behalf).
c. Further, if Defendant can show that if the attempt to
impair [or restrain] Defendants rights was the only
reason the Plaintiff sued Defendant (also, abundantly
evident given Plaintiffs strategic use of a separate
lawsuit that served no useful [material] purpose
except to violate Defendants civil rights and freedom
of speech) and to accomplish Plaintiff's goals if the
Defendant succumbed to fear, intimidation, mounting
legal costs or simple exhaustion and abandoned the
criticism, therefore, Defendant is entitled to larger
punitive damages.
d.
The statute defines an "action involving public
petition and participation" as one that involves a
public applicant or permittee [Plaintiff] seeking
damages from a Defendant on the basis of the
Defendant's efforts "to report on, comment on, rule
on, challenge or oppose" Plaintiff’s application to
the government. There is no question Plaintiffs
designed their separate lawsuit 27786/2010 to create
onerous costs to stifle Defendants free speech to
oppose and voice concerns of Plaintiffs dangerous and
wrongful Department of Buildings (DOB) filings and
construction work on their premises which later was
recognized and acted upon by DOB authorities as
credible and materially actionable, requiring MAJOR
enforcement action on multiple occasions against the
Plaintiffs to safe guard the public. Without
question, Plaintiffs lawsuit clearly was retaliation
against Defendants public right to voice legitimate
concerns regarding Plaintiffs government application
and approved construction gained under false
pretenses.
e. Plaintiffs lawsuit follows all the classic,
prototypical and widely accepted elements of a SLAPP
lawsuit:
-3-
i. Timing of the suit: On or about the hiring
another design professional [professional
engineer] to prepare new construction drawings
and apply for Plaintiffs [4th] construction
permit1 approved on or about April 12, 2011 [using
materially false and misleading certification
statements – a misdemeanor offense], and
subsequently disapproved/revoked with a full stop
work order issued October 15, 2011 based on
Defendant’s voiced and reported concerns of
related to public health, safety and welfare
rules and law violations.
ii. Making claims that are very difficult to disprove
or rely on [Plaintiffs alleged injuries and
Defendant’s alleged harassment that allegedly
caused delays and punitive damages to the
Plaintiff’s construction, a damage claim against
Defendants totaling altogether on or about $ 1.2
Million]
iii. Making claims that include extensive use of
ambiguous or deliberately mangled wording that
lets Plaintiffs make spurious allegations without
fear of perjury including an instant action with
no standing completely omitting a showing
irreparable harm [all 3 elements] to the court,
iv. Refusal to consider reasonable settlement, and
v. ceaseless attempts by Plaintiffs to run up
Defendants' legal costs [required to protect
Defendant’s rights] without any limitations.
f. The Plaintiffs have clearly established by their
lawsuit a malicious use [or abuse] of process claim
that could only have been possible with material
support of Plaintiffs attorney and therefore the court
must require the Plaintiff demonstrate that its
lawsuit "has a substantial basis in fact and law."
g. The damage [pain and suffering] to Defendants caused
by Plaintiffs lawsuit 27786/2010 [against Defendants]
has been great; leading to substantial injury to the
Past Plaintiff’s DOB construction permits had also been shown to violate DOB
laws, rules and regulations, and were subsequently revoked and/or issued stop
work orders to correct violating conditions based by Defendant’s legitimate
concerns of Plaintiff’s and/or agents bold misrepresentations to DOB.
1
-4-
Defendants that may greatly exceed the total value of
Plaintiff’s assets when through.
DEFENDANT’S ADVERSE POSSESSION CLAIM [IN CASE 7712-2010] SHOULD
BE GRANTED TO DEFENDANTS
6.
Plaintiff’s bold assertion that Defendants’ gave the
key to a previous owner is inadmissible hearsay and cannot form
the basis of this Court’s denial of such relief.
7.
In addition, the Defendants’ use of the subject parcel
was more than de minimis.
Driveway gates doubly locked
immediately after John and Irina Hockenjos purchased their
property in October 23, 1997 as established by multiple
affirmations and affidavits in the original case 7712-2010.
The
parcel was/is utilized and improved with added [solid] wood
fence, refurbished concrete, multiple storage sheds, covered by
overhead awning, and with some areas landscaped as further
described in the affidavit of Defendants attached to the motionin-chief as well as the affidavit attached to the instant reply.
8.
It is important to note that RPAPL 543 [effective July
8, 2008] does not apply as Plaintiffs wrongly suggest since such
RPAPL section was added [occurred] after Hockenjos’ right for
adverse possession had ripened and became vested on or about
October 23, 2007.
Franza v. Olin, 897 N.Y.S.2d at 806. (Subject
-5-
history of applicable changes to RPAPL [522 and 543] are fully
established by:
McKinney’s Consolidated Laws of New York
annotated, Book 14½, Real Property Actions and
Proceedings Law §§ 1 to 714 © 2009 Thomson
Reuters/West).
9.
Prior to the statutory change, the controlling law
RPAPL 522 [old law - without RPAPL 543] is the applicable law
for Defendants adverse possession claim, stated as follows:
For the purpose of constituting an adverse
possession by a person claiming title not founded
upon a written instrument or judgment or decree,
land deemed to have been possessed and occupied in
either of the following cases, and no others:
1. Where it has been usually cultivated or improved.
2. Where it has been protected by a substantial
enclosure [accents added for emphasis].
10.
Application of case law [including admissibility of
evidence] only further supports Defendant’s adverse possession
claim of the Disputed Property by affidavits attached to the
motion-in-chief as well as the affidavits attached to the
instant reply [for case 7712/2010]:
a. Mourelatos v. Fraternal Society of Canicatti, Inc.
2004, 6 Misc.3d 183, 787 N.Y.S.2d 814; under written
ruling [Stare decisis]:
-6-
A chain link fence enclosing servient
tenement constituted “substantial enclosure”
as required to establish adverse possession
of an easement.
Discussion -- As noted by Defendants affidavits and
motion-in-chief Defendants substantial enclosure
consists of a both a chain link fence and solid wood
fence, such that the chain link [pre-existed the wood
fence] and was erected by Defendants predecessor owner
on or before 1968 to enclose all sides of Defendants
rear yard including the Disputed Property -- such that
the same original [silver painted] chain link fence
was also used on the opposite side of Defendants rear
[side] yard property to further secure that property
from its neighbors to the north by the Defendant’s
predecessor owners.
The chain link fence and gates
were continuously pad locked and conspicuously posted
“Private property – No trespassing” sign visible from
Plaintiffs side door [in the Defendants driveway]
since as Plaintiffs claim [by affidavit] the elderly
predecessor owner almost exclusively used this side
door to enter and exit her house; Defendants locks
appeared immediately after Defendants purchased their
property October 23, 1997 (see Defendants property
deed and affidavits) to put a reasonably diligent
-7-
owner on notice of substantial enclosure of Disputed
Property while the Defendants back yard was used
exclusively by them to store personal property
[various appliances, specialize equipment/tools, etc.]
while their home was repaired inside.
Per numerous
affidavits annexed to case 7712/2010, Defendants added
a taller [solid] wood fence [to the existing chain
link fence].
Clearly, the required 10-year continuous
statutory period prior to the change in the RPAPL law
July 8, 2008 is met.
b. Parsons v. Hollingsworth (4th Dept. 1999) 259 A.D.2d
1054, 688, N.Y.S.2d 336; The rule of law [Stare
decisis]:
Evidence that claimants used a strip of land
between their property line and a fence that
was on a neighbor’s property openly and
continuously as a yard and storage
[Defendant’s [Hockenjos’] exact use in its
motion-in-chief -- more than a continuous
10-year period] created a presumption that
the use was hostile, for purposes of
determining whether claimant had title to
the strip of land by adverse possession
without written instrument; to rebut that
presumption, the neighbor needed to present
evidence the claimant’s use of the land at
issue was permissive [added words in
brackets for emphasis];
c. Doyle v. Hafner, 2006, 12 Misc.3d 844, 819 N.Y.S. 383;
Well settled case law established [thereafter referred
to in deciding similar cases]:
-8-
Affidavits, even unacknowledged affidavits,
of claimant’s predecessor in interest and
neighbors to effect that a driveway
encroaching on an adjoining property owner’s
land had been encroaching… was sufficient to
show the claimant had acquired title to
property underlying the driveway by virtue
of claimant’s adverse possession; in absence
of any probative evidence to the contrary
from the owner of adjoining lot;
Discussion – Court should note, Plaintiffs [Paumeres] failure to
state the predecessor owner’s interest, business or means to
pass through numerous obstacles such as, Defendants doubly
locked [8-feet wide] [double] gate [specially sized for motor
vehicles to pass, not people] and solid fence across Defendants
own driveway [that includes and accesses all of Defendants
exclusive and privately owned rear yard property] or have a key
[as alleged by Plaintiffs] to allow Plaintiffs predecessor owner
[an elderly person] to completely by-pass Defendants elaborate
perimeter security [fence] and other physical impediments at its
gates: a) parked vehicle almost continuously in front of
Defendants driveway gates [preventing such gates from opening]
and b) fixed storage sheds inside Defendants fence blocking
access; all but denying any [unfettered] access [or trespassing]
of the Defendants fully enclosed rear yard and Disputed Property
inside Defendants substantial [fenced] enclosure [that closed
off all sides with locked gates given the urban setting] in
Defendants rear yard.
In essence such [key] access by
-9-
Plaintiffs predecessor owner would defeat the very reason
Defendants choose to lock and secure [protect] their personal
belongings and improvements inside their fenced rear yard.
Moreover, the fencing created privacy [from everyone outside
Defendants immediate household that often times used only the
doors from their house to access the rear].. there is no
probable reason for anyone to enter Defendant’s house or
property [especially given the overpowering physical impediments
and obstacles as aforementioned] would be a significant feat
that included barring anyone to enter the Defendants rear yard
through Defendants driveway gates [such access as alleged by
Plaintiffs was simply not possible] and these facts are
reinforced by motion-in-chief affidavits.
Defendants [secure] substantial enclosure and improvements
established the statutory elements: “(1) hostile and under claim
of right; (2) actual; (3) open and notorious; (4) exclusive; and
(5) continuous for the required period”; all material factors
and basic elements to legally grant Defendants adverse
possession [that put a reasonably diligent Plaintiffs
[predecessor] owner on notice for more than the required
statutory period of 10 years].
Further, Defendants reasonably
believed they owned the Disputed Property [under a claim of
right] based on the Defendants predecessor owner’s assurances
the chain linked fence enclosing Defendant’s rear yard property
-10-
or/and Disputed Property at time of transfer to the Defendants –
that explains why Defendants immediately secured and locked
their gates [under a claim of right] to reliably protect their
urban property from outsiders; other elements: (1) hostile –
doubly locked chain link fence and wooden fence (double fence);
(2) actual – from Defendant’s property survey shows the
substantial enclosure (double fence) of Defendant’s property and
Disputed Property blocking Plaintiffs access to the Disputed
Property (by Exhibit C of original summons and complaint
7712/2010); (3) open and notorious – conspicuously posted signs
in multiple locations and expressly stating “WARNING - PRIVATE
PROPERTY - NO TRESPASSING” (by Exhibit B of original affirmation
7712/2010) that was viewable from practically all of the
Plaintiff predecessor owner’s exterior pass doors to/from their
home, as such, the word private meaning intended for one’s
[Defendants] exclusive use; (4) exclusive – fully enclosed and
locked Defendant’s rear yard with only regular access from
Plaintiffs home (see aforementioned Defendant’s property survey
highlighting the fully enclosed Defendant’s rear yard); (5)
continuous – from on or about October 23, 1997 (by affirmation
and affidavits 7712/2010) to October 23, 2007 meeting the
required statutory vesting period for using the section of the
law (RPAPL 522) before the statutory change in the RPAPL law
allowing the prior law to control the Defendant’s vested
-11-
interest rights as cited in well-settled case law, Franza v.
Olin, 897, N.Y.S.2d, 804, 808 (4th Dept. 2010); citing Walling v.
Przybylo, 7 N.Y.S.3d, 228,232 (2006).
11.
All elements of adverse possession are satisfied and
the likelihood of success for the Defendants’ is good,
therefore, Plaintiffs’ summary judgment to dismiss Defendants’
action [on case no. 7712/2010] should be denied.
9.
Lastly, Plaintiffs were on notice of Defendants’ adverse
possession claim when Plaintiffs purchased their property since
they conducted a property survey showing a Defendant’s fence
encroachment (as presented by Defendants in 7712/2012) and in
spite of such knowledge chose to proceed with the property
purchase without resolving such conflict.
10
Indeed, it has been long held that:
Where a purchaser has knowledge of any fact sufficient
to put him upon inquiry as to the existence of some
right or title in conflict with that he is about to
purchase, he is presumed either to have made the
inquiry and ascertained the extent of such prior
right, or to have been guilty of a degree of
negligence equally fatal to his claim to be considered
a bona fide purchaser.
Maiorano v. Garson, 65 A.D.3d 1300, 886, N.Y.S.2d 190 (2d
Dept. 2009) (citing to Williamson v. Brown, 15 N.Y. 354, 362
(1857)).
-12-
Defendant has provided evidence [Plaintiffs property survey]
suggesting that Plaintiff were aware, or should have been aware,
of the adverse possession right by Defendants restricting the
conveyance of the Disputed Property, therefore, Plaintiffs
negligence was equally fatal against a claim of adverse
possession by such Defendants. It essence, Plaintiff acquiesced
this conflict in title at the time of purchase [Acquiesce occurs when a person knowingly stands by without raising any
objection to the infringement of their rights, while someone
else unknowingly and without malice aforethought makes a claim
on their rights – consequently, the person whose rights are
infringed loses the ability to make a claim against the
infringer, or succeed in an injunction suit due to the
infringer’s conduct].
PLAINTIFF’S ACTION SHOULD BE DISMISSED FOR PLAINTIFFS’ FAILURE
TO COMPLY WITH THIS COURT’S ORDER
12.
The violations of the Court Order are
sufficiently alleged in the affidavit of Defendants
attached to the motion-in –chief AND in the Order to Show
Cause.
-13-
Dated: Brooklyn, New York
January 8, 2013
Yours, etc.,
________________________
By: JOHN HOCKENJOS
One of the Defendants
Pro se litigant
2368 East 23rd Street
Brooklyn, New York 11229
(917)705-2063
Sworn to before me this
___ Day of January 2013
_______________________
Notary Public
-14-
SUPREMECOURTSTATE OF NEW YORK
COUNTY OF KINGS
---------------------------------X
ARGO PAUMERE, ELEN PAUMERE,
Index No.: 27786/2010
Plaintiff,
-againstAFFIDAVIT IN FURTHER
SUPPORT OF DEFENDANTS’
MOTIONS FOR: 1) SUMMARY
JUDGMENT AND 2)
DISMISSAL
IRINA HOCKENJOS a/k/a IRINA
PARAMONOVA a/k/a
and JOHN HOCKENJOS,
Defendants.
---------------------------------X MS 2, 3, 4
STATE OF NEW YORK
COUNTY OF Kings
}
} SS:
}
JOHN HOCKENJOS, being duly sworn, deposes and says:
1.
I am one of the Defendants in the above captioned
action. As such, I am fully familiar with the facts and
circumstances set forth herein.
I respectfully submit this
affidavit in further support of Defendants motion for summary
judgment and dismissal.
2.
In order to properly respond to Plaintiffs Affirmation
in Opposition, the Court must understand the following history
and background:
We want to clarify the facts that were completely
misrepresented, mislead, falsified and defrauded by Mr.
Giannola, Paumeres attorney on Paumeres direction with the the
intention to confuse the court because this is only means that
a court [or corruption] can take real property and real
-15-
property rights from its rightful owner. Mr. Giannola is a
real estate attorney and Argo Paumere is a real estate agent
completely understand that Hockenjos’ real property and sole
residence for 15 years is absolutely identical to all 47 real
properties located on East 23rd Street between Avenue W and
Avenue X, on Tax Map - Block 7405 including Paumeres new
investment property purchased July 15, 2009 next to the
Hockenjos’ property. In 1925 all 47 identical properties were
built by the same developer and have identical size which is
29.17 feet x 100 feet, each property has identical private
driveway and back yard and detached two story house (see
Summary Judgment upon 27786/2010, Exhibit W, Sub-exhibit 7 –
photographs [showing most of the 47 property owner’s cars
parked in their driveways] and their deeds). On the tax map,
easements that forever exist on each single lot and comes with
the land are not shown because each lot gives same size of
easement to its neighbor’s driveway and then takes same size
easement from the adjoining owner their driveway. Each owner
pays less taxes on the easement that is a burden for him and
given to the adjoining owner and pays more taxes on the
opposite side of the lot for the easement the other adjoining
owner provides to him. This explanation is so important to
understand that each lot has its own driveway and not any part
of this granted easement or his own land immediately adjacent
to that easement could be taken away for an expansion of the
adjoining owner’s land. In Hockenjos’ situation, we ordered
the NYC Department of Finance to show our driveway easement
which is 2 feet x 100 feet that burdens Paumeres property, and
Hockenjos’ are paying taxes on the 2 foot strip for 15 years.
This granted driveway easement is approximately about onefourth of Hockenjos driveway. Each property has a side door
which is a small utility door which it swings over [within]
the 2 feet Hockenjos dominant easement over Paumeres property
which states in the deed that Paumere obligated to maintain
the door as the same now exists and not interfere with
Hockenjos’ driveway in anyway. Argo Paumere clearly
understands it, that is why in his affidavit given to the
court on 7712/2010 he swore under oath he is not interfering
with Hockenjos’ driveway or easement which is later a perjured
statement because Paumeres for 3 years are bullying the
Hockenjos’ from their property by granted by deed: a small
easement strip of 2 feet and Hockenjos’ unencumbered property
of over 6-feet, making serious attempts to take over all
Hockenjos’ land as a driveway and back yard against Hockenjos’
will without any compensation, openly without any hesitation
explaining to the Hockenjos’ face that Argo Paumere is a big
person and he must take Hockenjos’ land as he wishes to expand
-16-
the one he bought for free and Hockenjos’ would not be able to
stop him.
Since June 2009 one month before Paumeres bought property next
to the Hockenjos’, the Paumeres started the property
extortion-stealing process by deception and coercion. For
that purpose Paumeres created a documents with property survey
attached to obtain signatures from adjoining owners including
the Hockenjos’ that adjoining owners are refusing from their
property and property rights for Paumeres unjust enrichment
and economic gain for free. For intimidation and success Fire
Engine 246 was used. Everything related to Paumere looks and
sounds unbelievable but it is real and completely unlawful.
Despite the fact that Hockenjos’ never signed their property
to the Paumeres Fire Company Engine 246 and other City
agencies: Police Department, Building Department, Department
of Environmental Protection keep coming to the Hockenjos’ on
Paumeres constant complaints that the only Hockenjos’ do not
have a driveway and cannot use it on Paumeres demand.
Interesting fact Paumeres in front of an army of inspectors
and police continue to park on Paumeres on driveway not only
cars, large construction vans, excavators, tractors but openly
bullying Hockenjos’ out of their own property interfere with
Hockenjos’ quite use and enjoyment and occupancy of Hockenjos’
own property for 15 years which Hockenjos’ legally bought and
paid its property taxes. On June 18, 2010 in front of the
Hockenjos’ inspector of the Department of Buildings called
Paumeres to meet the Paumeres inside Paumeres construction
fence even though the inspector had no business inside and
pick-up paperwork and Paumeres were watching as the inspector
was giving to the Hockenjos’ a false violation for using
Hockenjos’ own property as a driveway to park 3 of Hockenjos’
vehicles. Later on, DOB and ECB realized the violation was
written in error but Paumeres continued to insist that
Hockenjos’ could not have any use or enjoyment of Hockenjos
own property. For 8 months Argo Paumeres directed his
construction dumpster being placed that way that the whole
construction operation would take place not on Paumeres own
driveway but on the Hockenjos’ driveway. Paumeres placed on
Hockenjos’ driveway “NO PARKING” which was considered
harassment and was ordered removed by Police, as well as
changing the placement of Paumeres dumpster by Department of
Transportation but none of that stopped the Paumeres and they
continued to make complaints to the Department Buildings
stating that not only Hockenjos does not have driveway, all of
Hockenjos’ property must be used by the Paumeres but also
claiming that Hockenjos’ fence surrounding Hockenjos’ back
yard must be removed and Department of Buildings should order
-17-
it removed. But Elen Paumere decided to remove it herself did
not pay attention to John Hockenjos’ protests and hit him with
electric drill and continued to destroy Hockenjos’ fence until
the Hockenjos’ called the Police. During all 3 years Paumeres
were approved to build that way that they would take all
Hockenjos’ land will be gone. Hockenjos’ protests submitting
complaints to the Department of Buildings written by
professionals and experts but Paumeres started and continued
to than tamper with Hockenjos’ expert witnesses and Hockenjos’
attorneys and finally with Hockenjos’ title company.
Hockenjos’ Title Company was not only abusing the Hockenjos’
but started pushing the Hockenjos’ to sign stipulation that
would override and overrule Hockenjos’ deed and will permit
Paumeres to determine if Hockenjos’ can use Hockenjos’ own
property and withdrew from Hockenjos’ case to defend
Hockenjos’ property. Hockenjos’ did not have a possibility to
reply to the Title company because Paumeres new approval to
build on Hockenjos’ driveway just came and needed to be looked
at but title company already was in a rush to falsely accuse
the Hockenjos’ for non-cooperation to agree to give up
Hockenjos’ own property rights which title company cannot do
by law. Paumeres are accomplishing an unbelievable task to
get Hockenjos’ property, money by using City agencies, police
and Hockenjos’ own title company in court. On September 21,
2010, when Hockenjos’ contempt motion should have been heard,
Paumeres adjourned for four months and Department of Buildings
inspector declared that Hockenjos’ property will be granted by
the court to the Paumeres and the Department of Buildings is
discussing this with the Paumeres. On September 30, 2010, as
predicted by the Department of Buildings, Hockenjos’ motion to
protect Hockenjos’ property was denied without any explanation
and without a contempt motion being heard. On November 12,
2010, Paumeres filed a new case where they demanded Hockenjos’
be restrained forever from all Hockenjos’ land by deed,
Hockenjos’ fence surrounding Hockenjos’ back yard must be
removed on Paumeres demand, Hockenjos’ cars must be removed
from Hockenjos’ own private driveway and the Paumeres will be
enjoying, using and occupying Hockenjos’ driveway, driving to
Hockenjos’ back yard where the Paumeres were planning to build
a garage on Hockenjos’ land. Also, Paumeres demand from the
court on top of Hockenjos’ land, Paumeres will also receive
from the Hockenjos’ about $ 1.5 Million dollar award for false
accusations fabricated by the Paumeres. Paumeres friend
Alexander Vassilenko and architect that committed fraud on the
building application and drawings, Igor Zaslvskiy who falsely
accused Hockenjos’ for harassing and attacking them without
any proof. Title company did the same crime against the
-18-
Hockenjos’ not only steal Hockenjos’ property for the Paumeres
by agreeing with Paumeres demands and falsify the facts but
falsely accusing the Hockenjos’ of harassment which never
happened but opposite Title Company apologized to the
Hockenjos’ for abuse and rudeness they perpetrated in emails
to the Hockenjos’. For the Paumeres benefits, Title Company
asked the court to dismiss Hockenjos’ case with prejudice so
that the Paumeres can take Hockenjos’ title over Hockenjos’
property. Paumeres falsified statements to the court about
their illegal construction stating they never had any
violations and accusing Hockenjos’ to use Hockenjos’ rights of
freedom of speech and inform the court that the Paumeres were
given numerous stop work orders to correct violating
conditions, severe violations and falsifications before the
ECB. Paumeres have practically illegally built 3 and half
story house on a full stop work order using corrupted
connections with the Department of Buildings.
Paumeres without any hesitation demand on the court to declare
perpetual easement without any law or facts supporting it.
Hockenjos’ have a proof of all above mentioned including
pictures, videos and emails and recorded conversations, as
well, as Paumeres who are claiming and complaining to the
Department of Buildings that the 2 feet of easement is blocked
while at the same time walking freely on the easement.
Paumeres fraudulently accusing Irina and John Hockenjos’
yelling, thrusting cameras in their face when in reality
Hockenjos’ have proof that the Paumeres are doing that to the
Hockenjos’ as well as making preparations for breaking into
the Hockenjos’ car by taking pictures inside Hockenjos’ car by
Elen Paumere and Argo Paumere and another person were
watching. Hours later the same person broke into Hockenjos’
car. We believe Paumeres did severe damage to Hockenjos’ cars
by purposely dropping debris, and destroying Hockenjos’ fence
and gates causing severe financial damage. On January 5,
2012, Paumeres had an attempt under DOB stop work order with
no permission to do cement work were trying to break and
destroy the concrete on Hockenjos’ driveway forcing Hockenjos’
to hire a security guard causing another financial damage to
the Hockenjos’ in a situation where the Paumeres are demanding
Hockenjos’ property Paumeres are trying to force the
Hockenjos’ out of their driveway using a dangerous demolition
of Hockenjos’ driveway against building code, all safe
construction practices and in violation of a stop work order.
When getting Hockenjos’ property on false DOB application
pretenses did not happen, we believe that Argo Paumere
committed a severe crime against the Hockenjos’ by trying to
put the Hockenjos’ in jail for a severe crime they did not
-19-
commit up to seven years in prison using corrupted police who
lied under oath for [the Paumeres sole gain]. After the
Hockenjos’ false criminal accusation were dismissed and police
officer was indicted and arrested by a Grand Jury on five
different kinds of lying. Argo Paumere was trying to
interfere with a TV reporting who was interviewing the
Hockenjos’ on May 31, 2012 without any concerns for committing
a severe crime of false accusations Argo Paumere stated that
he witnessed that Mr. Hockenjos was trying to kill a police
officer and he has a video tape showing that. Also Argo
Paumere in front of the Hockenjos’ was trying engage himself
with the reporter demanding his telephone number that someone
connected can call that reporter on Argo Paumeres behalf.
Same offer on multiple times Paumere demonstrated with Police
and Department of Buildings inspectors that someone important
will be talking to them helping demonstrate that City workers
and police are corrupt and possibly paid off by the Paumeres.
In Paumeres own case 27786/2010 Paumeres are not asking but
demanding on the court as they are sure about this court’s
decisions will grant them Hockenjos’ property for free against
Hockenjos’ will as Department of Buildings inspectors informed
the Hockenjos’ for the record. But deep down it looks like
Paumeres understand that they are committing a severe crime
against the Hockenjos because Paumeres are demanding on the
court not only removing all Hockenjos’ surveillance cameras
because the Paumeres do not need witnesses and proof how they
are extorting-stealing Hockenjos’ property but also it is
absolutely unbelievable and unspeakable the demands on the
court annulling all of Hockenjos’ constitution, civil and
human rights as not to speak and not to take pictures and not
to live in Hockenjos’ own home (20-feet away from the
Paumeres) and not using Hockenjos’ own driveway by staying
away from Hockenjos’ own property and be restrained to
complain to all known law enforcement from Police to FBI. At
the same time, Argo and Elen Paumere continue defamation on
the web and in the press falsely naming the Hockenjos as
convicted criminals, Rusian mafia, and other things. In his
complaint, Argo Paumere is denying that Hockenjos can call his
and Paumeres wife’s actions against Hockenjos’ unlawful and
wants that to be falsely named an innocent civil action. We
want to underline that the Paumeres are complete strangers,
were never Hockenjos’ neighbors (before moving in on or about
June 2, 2011 and did not act as Hockenjos’ neighbors and do
not have any rights supported by any [civil] law to demand and
take over Hockenjos’ property. Paumere did not inherit
Hockenjos’ property, did not own Hockenjos’ property before
-20-
the Hockenjos’ as new emigrates to the United States who came
to New York on or about 1997 when Hockenjos’ had owned their
home do not have any claim for adverse possession on
Hockenjos’ property which is 10-year requirement. Actions by
Paumeres are completely covered as criminal under Penal Law
Article 155 grand larceny and under several federal laws which
requires severe punishment and imprisonment for not only the
Paumeres but anyone who is involved to deliver to Paumeres
Hockenjos’ property by breaking the law. Hockenjos’ want to
remind the court that both Hockenjos’ are citizens of the
United States and John Hockenjos is a naturally born citizen
of the 4th generation and the Paumeres crime against the
Hockenjos’ by stealing land from United States citizens is
forbidden by the Constitution of the United States without
basis in law or fact.
We want inform the court that Paumeres on numerous occasions
threatened Hockenjos’ lives and we believe are harming
Hockenjos’ health causing life threatening situations because
Paumeres will not take no for demanding Hockenjos’ land and
money and Hockenjos’ are afraid for our lives and well-being;
evidence is clear.
Mr. Giannola on multiple occasions was trying to interfere
with Hockenjos’ representation convincing Hockenjos’ attorneys
that Hockenjos’ went to homes of Mr. Vassilenko and Mr.
Zaslvskiy which is a completely untrue as everything else in
their affidavits and Hockenjos’ do not even know their home
addresses to serve them on the perjury and fraud by signing
such false affidavits. There is no proof for any of their
statements including any telephone bill for alleged telephone
harassment and proof of alleged general contractor or attacks
on them which are complete fraud and perjury. Looks like Mr.
Giannola reassured those people it is ok to commit perjury in
court to continue committing extortion of Hockenjos’ property
himself by purposely confusing the court in different places
stating the Hockenjos’ driveway is a shared driveway and
Paumeres must drive on Hockenjos’ driveway and use Hockenjos’
easement as a Paumeres ‘right of way’ when in reality Paumeres
have their own driveway and their own ‘right of way’ on the
other side of their house [20 feet away]. Another
falsification and fraud purposely presented by Mr. Giannola
that Paumeres do nothing wrong but just doing construction of
their own home and Hockenjos’ guilty of everything that the
Paumeres are doing to the Hockenjos’. Mr. Giannola has
another version of how to deliver Hockenjos’ property to
Paumeres by demanding that the Hockenjos’ park in the back
controlling the use of Hockenjos’ land which deed does not
permit. When his own clients parking and using on their own
-21-
driveway (on the other side of their house) anyway they wish
including parking where they want to : in the front or between
the houses. Mr. Giannola does not see anything wrong
demanding Hockenjos’ driveway for his clients telling
Hockenjos’ attorneys that the Paumeres can demand Hockenjos’
driveway but Hockenjos’ cannot demand Paumeres driveway. In
this case, Hockenjos’ are demand the court to deliver Paumeres
driveway as compensation for Hockenjos’ stolen property and
money.
3.
Plaintiffs state in their reply to Defendants’ motions
that Defendants do not understand the parties’ respective
property rights.
However, based on the interminable [never
ending] problems that Plaintiffs have had with the Department of
Buildings since 2009 evidenced in Exhibit B attached hereto - It
seems to be Plaintiffs [Paumeres] who do not understand the
parties’ rights and the Department of Buildings agrees with the
Defendants by Disapproving Plaintiffs latest actions improper
placements of Plaintiffs building relative to the property.
4.
The most telling fact of Plaintiffs’ intentions and
their failure to understand Defendants’ property rights is that
Plaintiffs openly demanded the Defendants’ property with DOB
approval to build on it.
5.
See Exhibit C.
Outrageously, on November 12, 2010, one month and 12
days after the court decision denying the preliminary injunction
in our action filed under index number 7712/2010 [a court
decision based on Paumeres answer they “have never denied use of
the two foot easement … nor have ever claimed or asserted
title…”]; Plaintiffs [Paumeres] filed a new action 27786/2010,
-22-
verifying their intention to interfere with our property and
property rights [under ‘color of law’] any way.
6.
In this action, Plaintiffs demanded the restraint of
Defendants use and sovereign [supreme] rights over Defendants’
own driveway:
h. [a 6-feet or more] wide zone [clearly depicted on
both parties property surveys] of exclusive and
absolute property of the Defendant’s [to occupy and
PARK their vehicles as they wish] and;
i. a supplemental easement area - Defendant’s express
[dominant] right in a [2-foot] strip of land [over
Plaintiff’s property]
j. when combined together comprise a whole driveway
interest of 8 feet [or more] in Defendant’s favor and
Defendant’s sole interest as a driveway and ‘right of
way’ from both parties deeds and surveys;
By Plaintiff’s action, Plaintiffs demonstrated their intention
to deny and injure Defendant’s explicit driveway right
guaranteed under both parties’ deeds and fully depicted on both
parties property surveys to have and hold a whole driveway in
two parts while the same Plaintiffs confidently and forcefully
asserted the opposite and denied interfering with Defendant’s
driveway under case 7712/2010.
7.
The absence of a garage does not annul the easement
-23-
rights because according to the deeds the garage could be built
any time as the owners wish.
In fact, most of the 47 identical
properties on the block including Plaintiffs’ property do not
have a garage but are entitled to use the driveway [and
easement] to [use and] PARK [multiple] vehicles anywhere along
the entire length of their driveway.
Practically speaking all
47 owners including the Plaintiffs use their driveway to PARK
[outdoors] and do not use a garage [in the rear yard] even if
they have one; despite this no one is denied their right to
park.
As in the instant action, the Plaintiffs use their
driveway (on the other side of their house) for parking their
cars, storing materials, tractors, excavators, dump trucks and
dumpsters [that coincidentally also occupy the driveway easement
from their neighbor to the south].
8.
The deeded description simply denotes the rear most
[spatial] limit [or extent] of the easement “to a garage or
garage to be erected”; and does not intend or explicitly
regulate or restrict [in anyway] the owner’s manner of use of
such granted private driveway anywhere along its full length.
9.
My wife and I have continuously used our driveway to
park our up to three (3) cars and cars of others since we bought
our Property in 1997.
Although we avoid parking the cars on the
Driveway Easement, we use the Driveway Easement to maneuver our
cars and to open our car doors when we enter and exit the cars
-24-
as they are parked on our driveway.
10.
Yet Plaintiffs continue their campaign of harassment
with DOB complaints (10 or more) and the latest complaints on 415-11, 5-17-11, 7-22-11 against Defendants driveway all resolved
after meeting with Department of Building
Commissioners/officials.
11.
Regarding the Plaintiffs side door, by express
restriction in the deeded description, the Plaintiffs are bound
and obligated to “maintain the door as the same now exists”, and
as such, the Court by declaratory judgment should be adhere to
such explicit restriction hereby compel enforcement of such
obligation so as to preserve and protect Defendants’ right to
the same unencumbered real property before and after the
Plaintiffs’ construction; in short, any contemplated change to
the side door should be prohibited by the Court based on an
express deed restriction contained therein.
12.
The enlarged door proposed by Plaintiffs door will
interfere with Defendant’s reasonable driveway parking and would
unreasonably damage Defendant’s personal property and vehicles
in effect eliminating and reducing parking that Defendant is
entitled to have.. especially given Defendant’s obligation is
reasonably frozen by deed as: maintain the door as the same now
exists.
13.
At issue is the Plaintiffs’ Department of Buildings
-25-
(DOB) approved drawings, showing replacement of the original
door with a new enlarged door in direct violation of the express
restriction stated in the deed.
More specifically, Plaintiffs
approved drawings to install a new ENLARGED door measuring 30
inches (wide) x 80 inches (tall) in a different position will to
replace the original door, resulting in a material change [and
enlargement] of the original side door swing over Defendant’s
sovereign [supreme] property; that is specifically prohibited by
both parties deeds.
To conform to the deeds the Plaintiffs must
reduce the proposed enlarged door swing by whatever means so
Defendant’s obligation and burden are not unfairly increased and
cause a direct violation of the both parties deeded tracking
language “to maintain”.
In effect, the only side door permitted
is the original door that measures 27 inches (wide) x 78 inches
(tall) in the original position on the northerly side of the
Plaintiffs’ building.
14.
As a result, Plaintiffs’ approved drawings violate the
expressly deeded pre-conditions to “maintain” the original door
swing over Defendants driveway and clearly violates of both
parties deeds, and consequently, such contemplated changes must
be ruled in contrary to the deed(s) and prohibited by the Court.
The fact that the door is not changed, should not reasonably bar
the Court from making such determination by declaratory judgment
in the Defendants’ favor.
-26-
15.
Plaintiffs repeatedly deviated from the deed’s
tracking language; Plaintiffs distort the rights and obligations
between the parties, and as a result, continuously mislead the
Court [and Department of Buildings].
16.
For example, as Plaintiffs’ allege in Paragraph 8 of
their opposition that, “…over that two feet for the purpose of
driving back to their yard to park their vehicle”.
The
restrictive words being used [injected] here such as “driving”,
“yard”, “park” and “vehicle” do not appear in both parties’ deed
description(s) yet the Plaintiffs assert such claims without any
legal standing or explanation as to how they arrived at their
conclusive findings.
17.
To be clear such restrictions cannot be enforced
without standing and/or explicit language in the deeds which
Plaintiffs fail to demonstrate, therefore, such restrictions
have no basis and can only be described as Plaintiffs’ “wishful”
thinking and/or a conscious [and deviant] attempt to injure and
defile [and violate] the Defendant’s original deeded rights
enjoyed by 47 other properties on the same block including the
Plaintiffs, by using the court and heavily betting the court
will not carefully seek legal standing before rendering its
finding and decision.
18.
To further clarify, the deed places absolutely no
restrictions on the Defendants’ right to use, occupy and enjoy
-27-
their unencumbered driveway property of more than 6 feet in
width in any lawful manner they wish, in fact, the Department of
Buildings, a City agency having [land use and zoning]
jurisdiction over such matters as “off-street” parking, ruled by
official legal findings on August 16, 2010 that the Defendants’
driveway and vehicle parking [of 3 vehicles] is legal and may
continue.
19.
The Defendants sovereign [supreme] rights may even
include fencing off their unencumbered [driveway] property
between the buildings to better enjoy, occupy and use this
property in any lawful manner they wish.
20.
Plaintiffs seemingly agree that a prima facie case is
established by Defendants’ summary judgment; as evidenced by the
311 complaints contained in Paumere-Plaintiffs action, they are
generally anonymous by evidentiary proof and material fact but
not always, in fact, one 311 complaint was registered by Borough
Buildings Commissioner who issued a stop work order against the
Plaintiffs’ premises;
Department of Buildings violations in
many instances resulted in serious enough violations that
Department of Buildings issued stop work orders to force the
owner and/or his agent(s) to comply or take corrective
action(s), therefore, Defendants completely agree that Plaintiff
eventually complied with the Department of Buildings orders,
rules and regulations to avoid
further penalty and/or cured
-28-
these outstanding matters.
Defendants further agree with
Plaintiff, by their nature violations and stop work orders, they
in fact DO delay the Plaintiffs construction but Defendants
disagree that such orders and/or complaints leading to such
orders are frivolous or baseless especially when the complaint
originates from the Borough Commissioner, the highest ranking
Kings County building official in the City of New York.
It also
follows Defendants being residential property owners, are not
Department of Buildings’ officials having any authority to
examine buildings or order such violations and stop work orders
that result in the such material delays to the Plaintiffs’
construction - only Department of Buildings officials have that
power.
Therefore, there is no triable fact issue.
The
Plaintiffs’ conclusion that all these complaints are frivolous
and baseless and were reported by the Defendants, is likewise,
not supported by material facts as presented by Plaintiffs to
the court.
21.
Plaintiffs capricious and arbitrary increase in the
size and character of the side door swing which opens out onto
the Defendant’s driveway is a breach of Defendants’ property
rights.
Sadly, the Plaintiffs fail to understand [or more
likely knowingly refuse to comply with rules and standards setforth in both parties deeds] that the Defendants’ exclusive and
absolute property owned by the Defendants to enjoy, occupy and
-29-
use such property is not for the Plaintiffs’ taking or control.
There is no legal statute or remedy offered by Plaintiffs or
even available to the Plaintiffs to accomplish such sweeping
change to a deed [much less request relief] that takes the
Defendant’s deeded property and violates Defendant’s reasonable
and legal PARKING of their vehicles just as the Plaintiffs PARK
and just as many of the 47 other neighboring properties on the
block PARK.
See Motion-in-Chief at Exhibit W-7.
The arrogance
of the Plaintiffs is beyond comprehension and defies all bounds
of human decency to the point of being pure RECKLESS.
No matter
what - the Plaintiffs have no legal authority to claim private,
exclusively owned land rights and yet the Plaintiffs, with a
straight face, make such erroneous claims to the Court [and
Department of Buildings] that can only be defined as seeking the
most direr unjust consequences for the Defendants and society in
general; while meeting the all of the criminal elements provided
in the law:
1) mental state (mens rea) - intent,
2) conduct (actus reus) – professional, official or other
misconduct or failure by act or omission of duty,
3) concurrence – criminal intent that precedes or co-exists
with the criminal act(s) and
4) causation – criminal harm that would not have happened
-30-
without direct participation of the offender(s) [the owner,
architect, engineer, lawyers, officers of the court, State
and City officials, and others in many cases working
together against the interests [rights] of the Defendant]
All these acts with the intention to recklessly deprive the
Defendants of their hard earned property, assets and money.
These are the same elements that were at work on February 5,
2012 at 6 PM in a highly publicized fraud that began with the
Plaintiffs (and was reported by the New York Daily News [who
also reported on the Hon. Larry D. Martin’s judicial misconduct
and admonishment, and dismissed defamation case against the New
York Daily News and others], American Bar Association Journal,
The Wall Street Journal, The Cato Institute, and other
internationally recognized publications in Japan, England,
Canada and elsewhere); that occurred in the Defendant’s driveway
when Defendants were falsely arrested, and one falsely
imprisoned and maliciously prosecuted while the other was
assaulted and battered by the several New York City Police
(NYPD) officers in a highly organized, joint effort that began
as Defendants arrived at their home and were denied access to
their private driveway [the subject of this case] by Plaintiffs
with the police and were detained on Defendant’s [driveway]
property by Plaintiff [despite a TRO by this court against such
-31-
interference by Plaintiffs].
Based on falsified accounts and
criminal complaints of what happened, Defendants were facing up
to 7-years in prison but thankfully these official false
accounts were disproven by Defendants and found to be a complete
pack of lies intended to discredit and deprive the Defendants of
their hard earned property, assets, money and freedoms
guaranteed under the First, Fourth, Sixth, Eighth and Fourteenth
Amendments of the Constitution of the United States through the
Civil Rights Act, [Federal] Title 42 U.S.C. §§ 1983 and 1988, as
well as Article I, §§ 1, 5, 6, 9 and 11 of the New York State
Constitution, for violations of Defendants’ civil rights:
This criminal case was considered by a national
publication and declared one of the most egregious
[severe] instances of injustice nationwide [in 2012]
[and was compared with two other high profile
[recent] murder trials: Scott Petersen and Casey
Anthony], where [Defendant’s] own [home] surveillance
camera system and digital evidence [specifically,
focused on the Plaintiffs property 2 also known as
Defendant’s driveway easement], was used to prove
beyond a reasonable doubt that Defendants were
innocent of all criminal charges against them and in
fact, the Police officer(s) were guilty of
unthinkable crimes and official misconduct themselves
perpetrated against the Defendants [the real victims]
that included acts of perjury and lying under the
color and pretense law and in reckless disreqard of
the law that eventually lead to the Police being
arrested and/or punished. All of Defendant’s
[security] digital evidence is now safe-guarded real
time on separate servers worldwide with separate
2
Despite Plaintiffs forceful demand of this court to have Defendants restrained from
maintaining surveillance cameras [focused on Plaintiffs property].
-32-
authorized and confidential users as recommended by
KCDA and others.
Further, the motive 3 of NYPD Police to exercise such
extreme and scandalous behavior against all morality
or law, and to [intentionally] use deceptive law
enforcement conduct against the Defendants [in
Defendant’s own private [legal] driveway property] is
unclear but remains under intense investigation by
the Kings County District Attorney’s (KCDA) Office –
Rackets [Corruption] Division - Civil Rights and
Police Integrity Unit and/or other agency units.
Defendants continue to cooperate with KCDA’s office
on this on-going criminal investigation and
prosecution of City officials, while Defendant
continues to remain the [sole] lead [and protected]
witness for District Attorney’s office 4.
22.
The Defendants view the Plaintiffs action 27786/2010
and the numerous efforts by Plaintiffs and/or their agents
working with Department of Buildings and others including the
court, as further attempts to promote or permanently deprive the
Defendants of their basic human rights of basic shelter, food,
employment and security, in order to reduce Defendant’s hard
earned property, assets and money to a pile of ashes that in the
end all parties involved must eventually be prosecuted and
punished to the fullest extent of the law, like those unlawful
acts and omissions by police officers, one of whom was
criminally indicted [arrested] by a Grand Jury on May 31, 2012
According to KCDA, whether the Police [motive] was somehow to advocate for the
Plaintiffs or the officers saw some financial opportunity to lie about being almost
run over by Defendant’s car is unclear.
3
4
Despite Plaintiffs vigorous demands of this court to have Defendants restrained from
making [frivolous] complaints [or speaking] [to the KCDA’s office].
-33-
based on the Plaintiffs testimony and is now facing up to 20years in prison, if convicted of all counts.
23.
Further, testament to the recklessness nature of
Plaintiffs; Elen Paumere has engaged § 215.10 “Tampering with a
witness in the fourth degree” on more than one occasion which
could see her charged with a class A misdemeanor [up to a year
in prison plus fines] even after being warned to cease and
desist in this case by inter alia intimidating and threatening
Defendant’s expert witness in a dual violation of 8 C.F.R., Part
33 for a naturalized citizen violating her true faith and
allegiance to the Constitution and laws of the United States of
America; a strict condition of her citizenship in this country.
PLAINTIFFS FAIL THE PROXIMATE CAUSE TESTS FOR THEIR CLAIMS,
MOREOVER, PLAINTIFF’S LAWSUIT CONSTITUTES A DIRECT VIOLATION OF
DEFENDANT’S CIVIL RIGHTS THAT HAVE MATERIALLY INJURED AND
DAMAGED DEFENDANTS.
24.
Plaintiffs cannot establish proximate causation given
Plaintiffs lawsuit itself is a prejudiced and violated
Defendants civil rights, and as such has caused recognized
injury and damage to the Defendants under the law that may be
compensated as a remedy to the Defendants.
25.
Further, under New York State Constitution, Civil
Rights Law §§ 70-a, 76-a and New York State CPLR §§ 3211(g)
-34-
Defendants on a motion to dismiss under the New York State antiSLAPP [Strategic Lawsuit Against Public Participation] law, the
court may award Defendants one or more of the following kinds of
damages: costs and attorneys' fees, other compensatory damages,
and punitive damages as follows:
k.
In order, to receive costs and attorneys' fees,
Defendant must show that the Plaintiff's lawsuit
against Defendant lacked a basis in fact and law
(already shown by evidence proffered and to be
referenced in Defendant’s Summary Judgment).
l.
To get compensatory damages (i.e. damages that
compensate you for any other harm [Defendant’s pain
and suffering] as a result of Plaintiff’s SLAPP),
Defendant must also show that the Plaintiff was
maliciously attempting to impair [or restrain]
Defendants right to free speech, public participation
or petition [for example, through Department of
Buildings and other City agencies including in-situ on
Defendant’s premises, etc.] (the Plaintiff’s law suit
and affidavits themselves are proof together with
Defendant’s other digital evidence and recorded acts
and statements made by Plaintiffs and others).
m. Further, if Defendant can show that if the attempt to
impair [or restrain] Defendants rights was the only
reason the Plaintiff sued Defendant (also, abundantly
evident given Plaintiffs strategic use of a separate
lawsuit that served no other useful [material] purpose
except to violate Defendants civil rights and freedom
of speech) and to accomplish Plaintiff's goals if the
Defendant succumbs to fear, intimidation, mounting
legal costs or simple exhaustion and abandons the
criticism, therefore, Defendant is entitled to larger
punitive damages.
n.
The statute defines an "action involving public
petition and participation" as one that involves a
public applicant or permittee [Plaintiff] seeking
damages from a Defendant on the basis of the
Defendant's efforts "to report on, comment on, rule
on, challenge or oppose" an application to the
-35-
government. There is no question Plaintiffs designed
their separate lawsuit 27786/2010 to create onerous
costs to stifle Defendants free speech to oppose and
voice concerns of Plaintiffs dangerous and wrongful
Department of Buildings (DOB) filings and construction
work on their premises which later was recognized and
acted upon by DOB authorities as credible and
materially actionable, requiring MAJOR enforcement
action on multiple occasions against the Plaintiffs to
safe guard the public. Without question, Plaintiffs
lawsuit clearly was retaliation against Defendants
public right to voice legitimate concerns regarding
Plaintiffs government application and approved
construction.
o. Plaintiffs lawsuit follows all the classic,
prototypical and widely accepted elements of a SLAPP
lawsuit:
i. Timing of the suit: On or about the hiring
another design professional [professional
engineer] to prepare new construction drawings
and apply for Plaintiffs [4th] construction
permit5 approved on April 12, 2011 [using
materially false and misleading certification
statements – a misdemeanor offense], and
subsequently disapproved/revoked with a full stop
work order issued October 15, 2011 based on
Defendant’s voiced concerns of public health,
safety and welfare rules and law violations.
ii. Making claims that are very difficult to disprove
or rely on [Plaintiffs alleged injuries and
Defendant’s alleged harassment that allegedly
caused delays and punitive damages to the
Plaintiff’s construction, a damage claim against
Defendants totaling altogether on or about $ 1.2
Million]
iii. Making claims that include extensive use of
ambiguous or deliberately mangled wording that
lets Plaintiffs make spurious allegations without
fear of perjury including an instant action with
no standing completely omitting a showing
Past Plaintiff’s DOB construction permits had also been shown to violate DOB
laws, rules and regulations, and were subsequently revoked and/or issued stop
work orders to correct violating conditions based by Defendant’s legitimate
concerns of Plaintiff’s and/or agents bold misrepresentations to DOB.
5
-36-
irreparable harm [elements] to the court,
iv. Refusal to consider any settlement, and
v. ceaseless attempts by Plaintiffs to run up
Defendants' legal costs [to protect Defendant’s
rights] without any limitations.
p. The Plaintiffs have clearly established by their
lawsuit a malicious use [or abuse] of process claim
that could only have been possible with material
support of Plaintiffs attorney and therefore the court
must require the Plaintiff demonstrate that its
lawsuit "has a substantial basis in fact and law."
q. The damage [pain and suffering] to Defendants caused
by Plaintiffs lawsuit 27786/2010 [against Defendants]
has been great; leading to substantial injury to the
Defendants that may greatly exceed the total value of
Plaintiff’s assets when through.
26.
In terms of the real property, Plaintiffs are again
urged to read the both parties deeds and property surveys that
together clearly reveal that the vast majority (more than 6
feet) of the Defendants’ driveway is unencumbered and
exclusively owned property used by Defendant’s for the purpose
to legally PARK their vehicles with an occasional use of the 2
feet easement and ‘right of way’ portion to reasonably swing
open a car door to assess their vehicles and/or maneuver their
vehicles in the driveway.
But the Plaintiffs are seriously
asking the Court to transfer the Defendants’ valuable
[exclusive] property rights to Plaintiffs based on the
Defendant’s DOMINANT 2 feet easement over
the Plaintiffs’
property which does not in any way control the use or ownership
of the Defendants’ unencumbered [driveway] property.
-37-
Plaintiff’s arguments do not get more bold and absurd than that.
The Defendants’ own a private driveway which consists of more
than 6 feet of Defendants’ unencumbered property but according
to the Plaintiffs, the Defendants should be restricted from the
Defendants’ own use of that unencumbered property . . . it is a
very difficult demand for Defendants’ to swallow as one can only
imagine.
Yet the appetite for DELIBERATE thinking and endless
harm to Defendants only grows. The Plaintiffs also do not
“understand” that the only ‘right of way’ is Defendants’ ‘right
of way’ in conjunction with Defendants’ driveway [rights] which
gives the Defendants’ a right of reasonable use the driveway at
the exclusion of other users.
Again the deed only describes
easement rights and obligations it does not restrict the use of
the Defendants’ unencumbered property; the only easements in the
Defendants’ driveway are a 2-feet dominant driveway easement and
easement to maintain a side door swing over Defendants’
driveway; according to the deed the only ‘right of way’ that
exists [in Defendant’s driveway] is granted to the Defendant’s
and is a driveway easement.
SUMMARY JUDGMENT AGAINST DEFENDANTS’ ADVERSE POSSESSION CLAIM
[CASE 7712/2010] SHOULD BE DENIED
27.
Defendants have properly set forth that there are no
issues of material fact.
-38-
28.
There is no affidavit by anyone which attests that a
key was ever provided to the neighbor and the same is explicitly
denied
29.
In addition, such parcel had a “NO TRESSPASSING –
PRIVATE PROPERTY” signs and the gates doubly locked specifically
to exclude anyone: the gates pad locked and cable locked for on
or about 14 years to excluded anyone and everyone including the
Plaintiff’s predecessor-in-interest from accessing the disputed
property.
Given the placement of vehicles in the Defendants’
driveway which continuously blocked the swing of the double
driveway gates spanning the width of the driveway [and fence
enclosing the disputed property to the rear of Defendants’
property - and a large shed placed inside the enclosed property
blocking the gated opening, it was nearly impossible for anyone
much less the elderly predecessor owners to gain unfettered
access
30.
Further, numerous locks were placed on the gates
meaning more than one key would be required by the predecessor
owners.
Clearly, from early 1998 to the present the disputed
property was and continues to be exclusive to the Defendants’.
31.
In sum, Defendants have improved and maintained the
Fence and the Disputed Property for over ten years in an open
and notorious manner.
The Defendants’ use of the Disputed
Property, including by enclosing it with the Fence, has been
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exclusive and continuous.
The Plaintiffs’ construction plans
had included destruction of the [substantial enclosure] Fence,
and they planned to take over the Disputed Property currently
enclosed therein, therefore, summary judgment against Plaintiffs
[27786/2010] action should be denied and Defendant’s adverse
possession [7712/2010] granted.
32.
Finally, Defendants’ easement is a non-possessive
interest while adverse possession is a possessive interest, for
which, no prior agreement exists.
Exclusive and hostile
elements are fully met and shown here for the possessory
interest by the Defendants’.
Further, it is well settled that
"an easement created by grant may be extinguished by adverse
possession" (Spiegel v Ferraro, 73 NY2d 622, 625 [1989]).
It is
also well established that “an easement created by grant,
express or implied can only be extinguished by abandonment,
conveyance, condemnation, or adverse possession.” Gerbig v.
Zumpano, 7 N.Y.2d 327 (1960).
Therefore, in this regard the
court must be guided by the aforementioned citations.
33.
Presently, NY Real Property and Proceedings Law 543
concerning Adverse Possession clearly states:
“(1)
Notwithstanding any other provision of this article, the
existence of a de minimis [de minimis] [n1] non-structural
encroachments including, but not limited to, fences, hedges,
shrubbery, plantings, sheds and non-structural walls, shall be
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determined to be permissive and non-adverse.
28.
However, the Defendants’ use of the subject parcel was
more than de minimis.
The parcel was utilized and improved with
multiple storage sheds, surfaced paved with concrete, covered by
an awning, driveway gates doubly locked and some area landscaped
as further alleged in the affidavit of Defendants attached to
the motion-in-chief as well as the affidavit attached to the
instant reply.
29.
RPAPL 543 [effective July 8, 2008] does not apply
since such RPAPL section was added [and occurred] after
Hockenjos’ right for adverse possession ripened and/or became
vested.
Franza v. Olin, 897 N.Y.S.2d at 806. (Subject history
of applicable changes to RPAPL [522 and 543] are fully
established by: McKinney’s Consolidated Laws of New York
annotated, Book 14½, Real Property Actions and Proceedings Law
§§ 1 to 714 © 2009 Thomson Reuters/West).
30.
Prior to this change, RPAPL 522 [old law] controlling
in this lawsuit [notably, without RPAPL 543] for Defendant’s
adverse possession claim, the statute states:
For the purpose of constituting an adverse
possession by a person claiming title not founded
upon a written instrument or judgment or decree,
land deemed to have been possessed and occupied in
either of the following cases, and no others:
1. Where it has been usually cultivated or improved.
2. Where it has been protected by a substantial
enclosure.
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31.
Further application of case law [including admissible
evidence in support] only fortifies the Defendant’s adverse
possession claim of the Disputed Property through the affidavit
of Defendants attached to the motion-in-chief as well as the
affidavit attached to the instant reply:
a. Mourelatos v. Fraternal Society of Canicatti, Inc.
2004, 6 Misc.3d 183, 787 N.Y.S.2d 814; under written
ruling [Stare decisis]:
A chain link fence enclosing servient
tenement constituted “substantial enclosure”
as required to establish adverse possession
of an easement.
--- As noted Defendants affidavits and motion-in-chief
Defendants substantial enclosure consists of a both a
chain link fence and solid wood fence, such that the
chain link [pre-existed the wood fence] and was
erected by Defendants predecessor owner in 1968 and to
enclose all sides of Defendants rear yard including
the Disputed Property -- such that the same [silver
painted] chain link fence was also used on the
opposite side of Defendants rear [side] yard property
to further secure that property to the north.
The
chain link fence and gates were continuously pad
locked and visible from Plaintiffs side door [in the
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Defendants driveway] since as Plaintiffs claim the
predecessor owner almost exclusively used this side
door to enter and exit her house; so Defendants locks
appeared as soon as the Defendants purchased their
property starting in October, 1997 (see Defendants
property deed) to put a reasonably diligent owner on
notice of substantial enclosure of Disputed Property
while the Defendants back yard was used by them to
immediately store personal property [kitchen
appliances, etc.] while their home was renovated
inside.. Later in early 1998 per numerous affidavits
annexed to case 7712/2010, Defendants added a taller
[solid] wood fence [to the existing chain link fence]
whose multiple locks to the gates remained to the
present day.
To be sure, more than meeting the
required 10-year statutory period prior to the change
in the RPAPL law.
b. Parsons v. Hollingsworth (4th Dept. 1999) 259 A.D.2d
1054, 688, N.Y.S.2d 336; The rule of law [Stare
decisis]:
Evidence that claimants used a strip of land
between their property line and a fence that
was on a neighbor’s property openly and
continuously as a yard and storage
[Defendant’s [Hockenjos’] exact use in its
motion-in-chief -- more than a 10-year
period] created a presumption that the use
was hostile, for purposes of determining
whether claimant had title to the strip of
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land by adverse possession without written
instrument; to rebut that presumption, the
neighbor needed to present evidence the
claimant’s use of the land at issue was
permissive;
c. Doyle v. Hafner, 2006, 12 Misc.3d 844, 819 N.Y.S. 383;
Well settled case law established [thereafter referred
to in deciding similar cases]:
Affidavits, even unacknowledged
[unrecognized] affidavits, of claimant’s
predecessor in interest and neighbors to
effect that a driveway encroaching on an
adjoining property owner’s land had been
encroaching… was sufficient to show the
claimant had acquired title to property
underlying the driveway by virtue of
claimant’s adverse possession; in absence of
any probative evidence to the contrary from
the owner of adjoining lot;
--- It should be noted throughout, Plaintiffs
[Paumeres] failure to state the predecessor owner’s
interest, business or means to pass various obstacles
through Defendants doubly locked [8-feet wide]
[double] gate [sized primarily for motor vehicles to
pass] and solid fence across Defendants own driveway
[that accesses Defendants exclusively owned [entire]
rear yard property] or have a key [as alleged by
Plaintiffs] to allow Plaintiffs [elderly] predecessor
owner to by-pass Defendants elaborate perimeter
security [fence] and other physical impediments: a)
parked vehicle in front of Defendants driveway gates
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[preventing the such gates from opening] and b) fixed
storage sheds inside Defendants fence blocking access;
all denying [unfettered] trespassing of the Defendants
fully enclosed rear yard and Disputed Property inside
Defendants substantial fenced enclosure [closing off
all sides] in Defendants rear yard.. in essence such
[key] access by Plaintiffs predecessor owner would
defeat the very reason Defendants choose to lock and
secure [to protect] their personal belongings and
property inside their fenced rear yard.
Moreover, the
fencing created privacy [from everyone outside
Defendants immediate household].. there is no probable
reason for anyone to enter Defendant’s property
[especially given the overpowering physical
impediments and obstacles placed by Defendants] to bar
anyone to enter the Defendants rear yard through
Defendants driveway gates [access that as alleged by
Plaintiffs] and these facts are reinforced by motionin-chief affidavits.. Defendants [secure] substantial
enclosure and improvements established the under claim
of right, open and notorious, continuous, exclusive,
and actual; all material factors and basic components
to legally grant Defendants adverse possession [that
put a reasonably diligent [predecessor] owner on
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notice for more than the statutory period of 10
years].
Further, Defendants reasonably believed they
owned the Disputed Property [under claim of right]
based on the predecessor owner’s statements the fenced
property was the Defendants and a property survey
verifying chain link fence and enclosed property or
properties was not ordered at time of sale – which
helps explain why Defendants were so anxious to lock
their gates [under such claim of right] immediately
after the sale;
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COMPLAINT SHOULD BE DISMISSED
32.
The side door “maintained as the same now exists” s
stated in the deed clearly complies with the deed, however,
Plaintiffs proposed enlargement of such door and its relocation
is in contravention to the deed and should not be allowed by the
court since an enlargement of the side door will trample on the
Defendants’ unencumbered property, and interfere and impede with
the Defendants’ unfettered right to PARK vehicles on their
unencumbered property and such enlargement will represent an
irreparable harm to Defendants as it translates to a taking
[transfer] of real property.
33.
Plaintiffs’ enlarged construction with the new
enlarged side door providing a primary and convenient access for
the Plaintiffs building from the public street to access their
greatly enlarged cellar and first floor levels; this access will
greatly interfere with the Defendants’ driveway given its ideal
placement close to the public street and convenience for loading
and unloading vehicles to the Plaintiffs’ newly expanded home.
The court is reminded that the Plaintiffs greatly enlarged
building no longer represents the ‘building erected’ as stated
in the deed, now such side door will now serve a much greater
person occupancy from the past with greater needs that come with
it and create much more foot traffic and materially change the
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flow and handling of goods in and out to support the greater
occupancy; as a result, this will greatly change the character
and dynamics of movement within Defendants’ driveway and will
interfere with the Defendants’ unfettered driveway use and
‘right of way’ by deed since use by the Plaintiff in the
driveway will displace and preclude the Defendants’ requirement
for use to safely move vehicles within their driveway; which
were conditions that existed prior to the Plaintiffs enlarged
building.
PLAINTIFF’S CONTEMPT
34.
Contempt to punish for violating the TRO against the
Plaintiffs is pending and awaiting a ruling of the court.
As
for the Plaintiffs new action, the relief sought by the
Plaintiffs is in direct contradiction of the TRO and should not
be granted on that basis alone, for example, the request to
restrain the Defendants from being 25 feet from the Plaintiffs
and their contractors, such a request is a de facto restraint of
the Defendants’ use their own driveway, and driveway easement
and ‘right of way’ which is in direct contravention to the TRO
that preserves the status quo and allows the Defendants’
unfettered access to their driveway.
Such restraint cannot be
in conflict with a prior restraint or co-exist and therefore
must be denied by the court as a matter of law.
35.
Mention is also made of Justice Saitta’s order
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enjoining Plaintiffs and Defendants from speaking with each
other, which Defendants offered no proof of being violated.
Likewise, it is Defendants’ own determination that “very serious
violation” were issued against the Plaintiffs by the NYC
Building Department.
Defendants have not established their
expertise in the NYC Building Code or construction industry,
fail to attach an expert affidavit.
36.
The architects affidavit as part of Defendants’
summary judgment motion at Exhibit R establishes a factual issue
of the many examples of irreparable harm to the Defendants’
driveway found to exist in the Plaintiffs numerous approved
drawings to construct and are also found in the 311 complaints
as well.
Further, it should be noted that many of the 311
complaints resulted in severe violations that in many cases
caused a stoppage of work from days, weeks or months to correct
the violating and harmful conditions before work could proceed
again.
In some instances the violations put life and property
in peril like the Stop Work Order (SWO) issued on June 21, 2010
for which Plaintiffs contractor was fined $ 2,400.00 and
complaint by the Department of Buildings, Borough Commissioner
on May 12, 2010 that also issued a Stop Work Order (SWO).
37.
It is an undisputed material fact that not one single
311 complaint presented by the Plaintiffs was ever labeled
“frivolous and baseless” by anyone other than Plaintiffs, who
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again have failed to allege any expertise on the issue.
38.
Clearly Defendants cannot be held accountable for an
interaction between a DOB inspector and the Plaintiffs.
If
Plaintiffs stop work when inspectors arrive, Defendants cannot
be held liable.
Plaintiffs have 12 DOB/ECB violations ranging
from cured/resolved, in violation to active/pending.
Some of
these DOB/ECB violations were very serious and involved putting
life and property in peril.
Further, the Defendants’ April 12,
2012 approved plans were revoked and stop work order issued 1017-12. Further with recent violations to Defendants’/contractor
for working with expired permits issued on May 15, 2012 and
illegal occupancy of their building under construction without
required DOB sign-offs or certificates issued on June 4, 2012…
the Plaintiffs’ weak track record of compliance and safety puts
to question why Plaintiffs’ would block any citizen’s right to
protect themselves and the community from harm.
39.
In any event, making complaints to any governmental
agency cannot be considered an interference with anyone’s rights
and shows Plaintiffs lack standing to file a cause of action for
the same.
40.
What is beyond clear is that Plaintiff’s have violated
the June 14, 2010 order and Plaintiff’s have misstated the facts
and concealed evidence from this Court.
41.
With 52 concerned neighbors on the block who
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petitioned the Department of Buildings against the Plaintiffs’
dangerous acts all are well aware of the Defendants’ predicament
of being unlawfully thrown out of their unencumbered property
for SIMPLY using that property to PARK and are in SHOCK, every
neighbor on the block including the Plaintiffs, rightfully
enjoys these “off street” PARKING benefits without a barrage of
harassment that the Defendants have endured for more than 3
years; yet for the Defendants, the Plaintiffs are on a campaign
to do the very things the Plaintiffs enjoy day in and day out;
PARK their materials, equipment, and vehicles anywhere they wish
in their driveway which includes the driveway space between the
houses and the easement; this behavior can only viewed by the
court as a complete breakdown of an owner’s independent right to
use their unencumbered property in any reasonable way they wish
and be allowed to protect such property when that right comes
under attack.
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WHEREFORE, Defendants granting of their requested relief and
additional and further relief as this Court deems just and
proper.
Dated: Brooklyn, New York
January 8, 2013
Yours, etc.,
________________________
By: JOHN HOCKENJOS
One of the Defendants
Pro se litigant
2368 East 23rd Street
Brooklyn, New York 11229
(917)705-2063
Sworn to before me this
___ Day of January 2013
_______________________
Notary Public
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