STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY ELIZABETH HALEY ROCKWELL, as Executor of the ESTATE OF MARJORIE D. ROCKWELL, Plaintiff SUMMONS ~ against — index No, © 3046-1 F RJINo. ‘THOMAS W. DESPART, Hon, Defendant YOU ARE HEREBY SUMMONED to answer the Complaint in this action, and to serve a copy of your Answer, or, if the Complaint is not served with this Summons, to serve an answer on Plaintiff's attomey within twenty (20) days after the service of this Summons, exclusive of the date of service, or within thirty (30) days after service where service is made in any other manner than by personal delivery within the State. In case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the Complaint. Trial is desired in the County of Albany. The basis for venue is the real property is located in Albany County. Dated: Albany, New York Yours, etc. May 22, 2019 GLE, = THOMAS F. GLEASON; ESQ. = RICHARD C. REILLY, Esq. Attomeys for Plaintiff 2 Office and Post Office Address 40 Beaver Street Albany, New York 12207 Telephone: (518) 432-7511STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY ELIZABETH HALEY ROCKWELL, as Executor of = the ESTATE OF MARJORIE D. ROCKWELL, 8 Plaintiff, COMPEAINE 2p ~ against — Index No: AEA0G6 -/| RJINo. GE 7 ‘THOMAS W. DESPART, Hon. Defendant. Plaintiff Elizabeth Haley Rockwell, as Executor of the Estate of Marjorie D. Rockwell (hereinafter referred to as “Plaintif?"), by and through their attorneys, Gleason, Dunn, Walsh & O'Shea, as and for a complaint, allege as follows: 1. At all times hereinafter mentioned, Elizabeth Haley Rockwell was and still is a resident of the County of Fairfield, State of Connecticut, residing at 61 Pecksland Road, Greenwich, Connecticut 06831-3647. 2. Elizabeth Haley Rockwell is the granddaughter of the deceased, Marjorie D. Rockwell (“Mrs. Rockwell”), and was appointed an Executor of Mrs. Rockwell’s estate (the “Rockwell Estate”) by Letters Testamentary, filed with Albany County Surrogate’s Court on March 30, 1995. 3. Elizabeth Haley Rockwell was reissued Amended Letters Testamentary, filed with Albany County Surrogate’s Court on March 12, 2019. 4, On information and belief, at all times hereinafter mentioned, Defendant Thomas W. Despart was and still is a resident of the County of Albany, State of New York. 5. The Last Will and Testament of Mrs. Rockwell, “authorize{d] [Mrs. Rockwell's] executors to grant to one or more ‘qualified organizations,’ (as defined in Section 170 (h) (3) 1of the Intemal Revenue Code of 1986, - » conservation restrictions in and to all or any part of [her] real estate located in said Loudonville.” 6. In order to effectuate the conservation objectives of the deceased, the executors of Mrs, Rockwell's Estate (including Plaintiff) created a minor subdivision of the Estate’s real property, known as the “Plan for the Estate of Marjorie D. Rockwell, Spring Street and Tumer Lane” (the “Plan”) and duly filed the Plan on April 3, 1998, in the Albany County Clerk's office as Map No. 10529, Drawer 0172 7. The Plan created three parcels, the largest of which was identified as “the Preserve” and was to remain “forever wild,” as an ecological preserve. 8, The qualified organization to which the Rockwell Estate transferred the Preserve by deed, dated June 1, 1998, was the Audubon Society of the New York State, Inc. (hereinafter the “Audubon Society”). This deed contained the following restrictive covenant: The Land shall be forever wild and shall be used as a research, education and management area for urban wildlife conservation and water resource protection .. . (Hereinafter, the “Forever Wild Restriction”). 9. The deed from the Rockwell Estate to the Audubon Society stated that the Forever Wild Restriction “runfs] with the land.” 10, Defendant acquired his interest in the Preserve from the Audubon Society by a deed dated April 12, 2013, containing the Forever Wild Restriction. Defendant had actual notice of the Forever Wild Restriction when he accepted the deed to the Preserve. 11. On information and belief, Defendant has violated the Forever Wild Restriction and undertaken actions on the Preserve without having a program in place to comply with the Forever Wild Restriction.12. On information and belief, the Defendant contests the legal validity of the Forever Wild Restriction and does not intend to maintain the Preserve in accordance with the Forever Wild Restriction. 13. The Appellate Division, Third Department has expressly recognized that the Forever Wild Restriction in Defendants deed for the Preserve “may be enforced by the [Rockwell] Estate.” (Gorman v. Despart, 164 A.D.3d 1059, 1061 [2018}). 14, Defendant's violations of the Forever Wild Restriction imposed on the Preserve, if | allowed to continue, will cause Plaintiff irreparable injury, destroying Mrs. Rockwell's testamentary intent, for which Plaintiff has no adequate remedy at law. AS AND FOR A FIRST CAUSE OF ACTION or Declaratory Relief) 15, Plaintiff repeats and realleges each and every allegation contained in paragraphs “1” through “14” above as if fully set forth herein, 16. On information and belief, a case and controversy exists between the parties because Defendant disputes that he is obligated to comply with the Forever Wild Restriction, 17. Therefore, Plaintiff is entitled pursuant to CPLR 3001 to declaratory relief that: the Defendant and the Preserve are bound by and subject to the Forever Wild Restriction; that the Forever Wild Restriction requires that the Preserve be forever maintained as an “Ecological Preserve” for the promotion of urban wildlife conservation and preservation; and that the Forever Wild Restriction precludes Defendant from destroying, removing, or otherwise disturbing vegetation on the Preserve or from the construction of any type of structure in the Preserve. AS AND FOR A SECOND CAUSE OF ACTION (For Injunctive Relief) 18. Plaintiff repeats and realleges each and every allegation contained in paragraphs “1” through “17” above as if fully set forth herein. 19, Defendant has acted, and is threatening to act, in violation of the Plaintiff's rights.20. On information and belief, Defendant intends to continue to act in violation of the Plaintiff's rights. 21. Plaintiff has no adequate remedy at law. WHEREFORE, Plaintiff respectfully requests that this Court issue a judgment against Defendant: (@ Declaring that the Defendant and the Preserve are bound by and subject to the Forever Wild Restriction; that the Forever Wild Restriction requires that the Preserve be forever maintained as an “Ecological Preserve” for the promotion of urban wildlife conservation and preservation; and that the Forever Wild Restriction precludes Defendant from destroying, removing, or otherwise disturbing vegetation on the Preserve or from the construction of any type of structure in the Preserve; and (b) Granting Plaintiff a permanent injunetion restraining and enjoining Defendant from destroying, removing, or otherwise disturbing the vegetation in the Preserve in violation of the Forever Wild Restriction; and requiring the Preserve be maintained as “forever wild;” (©) Awarding Plaintiff the costs of this action; and (@ Awarding such other and further relief as the Court deems just and proper. Dated: Albany, New York Yours, etc. May 22, 2019 crEAsoN DUNN, WALSH & O'SHEA Chas CS jomas F. Gleason, Esq. Richard C. Reilly, Esq. Attorneys for Plaintiffs Office and Post Office Address 40 Beaver Street Albany, New York 12207 Telephone: (518) 432-7511STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY ELIZABETH HALEY ROCKWELL, as Executor of the ESTATE OF MARIORIE D. ROCKWELL, Plaintiff, against THOMAS W. DESPART, Defendant. —— SUMMONS and COMPLAINT INDEX NO. 0 S074, ~/ RJENO. HON. GLEASON, DUNN, WALSH & O'SHEA Attorneys for Plaintiff Office and Post Office Address 40 Beaver Street, Albany, New York 12207 (518) 432-7511