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FILED: SUFFOLK COUNTY CLERK 04/12/2013 INDEX NO. 007385/2012

NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 04/12/2013Exhibit 2

Exhibit 2

SHWAL & PLATT

by Neal R. PlattA Member of the Firm23rd Floor767 Third AvenueNew York, New York 10017(212) 332-3311Attorneys for Plaintiffs

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF SUFFOLK

DAVID CIARDULLO and ROGER B.ROTHMAN, in their respective capacities asTrustees of the Joan Ciardullo Trust, andMICHAEL CIARDULLO, in his capacity asExecutor of the Estate of Albert Ciardullo,

Plaintiffs, Index No. 007385/2012

-against-VERIFIED AMENDED

COMPLAINT

WILLIAM LOUIS FEHR, Junior, WILLIAMFEHR, Senior, PRIMA ASPHALTCONCRETE INC., MAXJEFFREY FEHR, asSuccessor Trustee of the Max Fehr RevocableTrust, LORRAINE SHERO, and SMRBHOLDING CORP.,

Defendants.

Plaintiffs DAVID CIARDULLO and ROGER B. ROTHMAN, in theirrespective capacities as trustees of the Joan Ciardullo Trust, and MICHAELCIARDULLO, in his capacity as executor of the Estate of Albert Ciardullo, by theirundersigned attorneys, allege the following as their Complaint:

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Exhibit 2

Exhibit 2

BRIEF STATEMENT OF CASE

1. This action seeks an injunction against, and damages arising out of,Defendants’ continuing trespasses upon certain parcels of real property jointly ownedby Plaintiffs, located on or near Furrows Road in the Town of Islip, County ofSuffolk, State of New York (the “Ciardullo Furrows Road Properties”). The actionalso seeks a declaration that no Defendant currently has any easement or right-of-wayto travel over certain “paper roads” appearing on an ancient land map, on grounds thatno such easement or right-of-way was ever granted, that there is no legitimate reasonfor its continuation, and/or because Defendants’ abuse thereof should equitably resultin its extinguishment. Plaintiffs allege that the damage caused by Defendants to theCiardullo Furrows Road Properties includes, but is not limited to, excavating andremoving minerals, dumping large amounts of fill, laying a rough gravel road over aportion of such properties, directing drainage onto such properties, and driving largeindustrial vehicles over such properties, some of which vehicles and related equipmentappear to be stored on such properties from time to time.

PARTIES

Plaintiffs

2. Plaintiffs DAVID CIARDULLO and ROGER B. ROTHMAN are trusteesof the Joan Ciardullo Trust, a New York trust, maintaining their offices for thetransaction of business at 145 South Fourth Street, Bayshore, New York 11706.

3. Plaintiff MICHAEL CIARDULLO is executor of the Estate of AlbertCiardullo, a New York decedent, maintaining his office for the transaction of businessc/o Suzanne Napolitano Goodman, Esq., Goodman & Goodman, 45 Jesse Way,Mount Sinai, New York 11766.

Defendants

4. Upon information and belief, Defendant WILLIAM LOUIS FEHR, Junior:

(a) is a citizen and resident of the County of Suffolk,New York;

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(b) maintains a place for the transaction of business at theoffices of Prima Asphalt Concrete Inc. and/or SMRBHolding Corp., 615 Furrows Road, Holtsville, New York11742; and

(c) has consciously participated in the acts of Defendantsalleged in this Complaint.

5. Upon information and belief, Defendant WILLIAM FEHR, Senior:

(a) is a citizen and resident of the County of Suffolk,New York;

(b) maintains a place for the transaction of business at theoffices of Prima Asphalt Concrete Inc. and/or SMRBHolding Corp., 615 Furrows Road, Holtsville, New York11742; and

(c) has consciously participated in the acts of Defendantsalleged in this Complaint.

6. Upon information and belief, Defendant PRIMA ASPHALT CONCRETEINC.:

(a) is a New York corporation, maintaining its offices for thetransaction of business at 615 Furrows Road, Holtsville,New York 11742;

(b) is record owner of a parcel of real property adjoiningcertain Ciardullo Furrows Road Properties, saidDefendant’s parcel(s) being non-residential and industriallyzoned, and known as Lot 023.009; and

(c) has consciously participated in the acts of Defendantsalleged in this Complaint.

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7. Upon information and belief, Defendant MAXJEFFREY FEHR, asSuccessor Trustee of the Max Fehr Revocable Trust:

(a) is successor trustee under a trust established by the Max Fehr Revocable Trust Agreement, dated June 16, 1993;

(b) has a mailing address at [ADDRESSES REDACTED]resides in the State of Florida;

(c) is record owner of one or more parcels of real propertyadjoining certain Ciardullo Furrows Road Properties, saidDefendant’s parcel(s) being non-residential and industriallyzoned, and known as Lots 023.013 and 025.000; and

(d) has consciously participated in the acts of Defendantsalleged in this Complaint.

8. Upon information and belief, Defendant LORRAINE SHERO:

(a) is record owner of a parcel of real property adjoiningcertain Ciardullo Furrows Road Properties, saidDefendant’s parcel(s) being non-residential and industriallyzoned, and known as Lot 011.000;

(b) is the present or former wife of Defendant William LouisFehr, Junior; and

(c) has consciously participated in the acts of Defendantsalleged in this Complaint.

9. Upon information and belief, Defendant SMRB HOLDING CORP.:

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(a) is a New York corporation, maintaining its offices for thetransaction of business at 615 Furrows Road, Holtsville,New York 11742;

(b) is a lessee or licensee of all or part of such offices; and

(c) has consciously participated in the acts of Defendantsalleged in this Complaint.

VENUE

10. The judgment demanded would affect the title to, or the possession, use orenjoyment of, real property situated in the County of Suffolk.

11. Venue is proper in the County of Suffolk pursuant to CPLR § 507.

ALLEGATIONS COMMON TO ALL CAUSES OFACTION

The Ciardullo Furrows Road Properties

12. For many years, the Ciardullo Furrows Road Properties were owned bycompanies and entities in which a controlling interest was held by the now-deceasedCiardullo brothers, namely, Biagio and Albert.

13. Plaintiffs obtained ownership of the Ciardullo Furrows Road Properties bydeed dated November 30, 2007 (the “Deed”), a copy of which is annexed to thisComplaint as Exhibit 1. Plaintiffs’ said ownership has continued uninterrupted to thedate of this Complaint. As shown by the Deed, such properties are those depicted onTax Map District 500, Section 068.00, Block 01.00, Lot Nos. 010.000, 013.001,014.000, 015.000, 016.000, and 018.000.

14. The Ciardullo Furrows Road Properties are non-residential, industriallyzoned, and unimproved.

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Defendants’ Activities on Adjoining Parcels

15. For many years, Defendants have operated one or more sand, gravel, andcement businesses on parcels adjoining the Ciardullo Furrows Road Properties. In thecourse of their businesses, Defendants have engaged in various unauthorized anddestructive activities in respect of the Ciardullo Furrows Road Properties, includingbut not necessarily limited to, excavating and removing minerals, dumping largeamounts of fill, laying a rough gravel road over a portion of such properties, directingdrainage onto such properties, and driving and storing large industrial vehicles.

Defendants’ Continuing Trespass Upon, andDamage to, the Ciardullo Furrows Road Properties

16. At no time have Defendants had authority or consent of Plaintiffs or anyof their predecessors to enter upon the Ciardullo Furrows Road Properties orto change such properties in any way, or to remove anything therefrom, or to directdrainage onto such properties, or to dump or otherwise place anything thereon.

17. Notwithstanding Defendants’ lack of any authority or consent of Plaintiffsor any of their predecessors to do so, Defendants have entered upon the CiardulloFurrows Road Properties and caused severe damage to such properties by excavatingand removing minerals, dumping large amounts of fill, laying a rough gravel road overa portion of such properties, directing drainage onto such properties, and driving largeindustrial vehicles over such properties, some of which vehicles and related equipmentare stored on such properties from time to time.

18. The damage inflicted by Defendants upon the Ciardullo Furrows RoadProperties has rendered such properties unfit for use or sale for most purposes withoutcostly remediation and regrading.

19. By virtue of the foregoing, the value of the Ciardullo Furrows RoadProperties has been substantially reduced, the saleability thereof has been adverselyaffected, and Plaintiffs’ rights as owner have been violated and invaded.

20. At all relevant times, Defendants have known that the Ciardullo FurrowsRoad Properties were privately owned and were the property of Plaintiffs and theirpredecessors, and that their entering, excavating and removing minerals, dumping fill,

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laying a rough gravel road over a portion of such properties, directing drainage ontosuch properties, and driving industrial vehicles over such properties, and storing somesuch vehicles on such properties with related equipment without permission of theowner of such properties were unauthorized.

21. In performing the acts alleged above, Defendants have acted maliciously,wantonly, and/or with a recklessness that betokens an improper motive orvindictiveness, and/or have engaged in outrageous or oppressive intentionalmisconduct, or with reckless or wanton disregard of safety and of Plaintiffs’ rights.

Demands

22. Plaintiffs and/or their predecessors have made several demands uponDefendants (or some of them) to cease the activities complained of in this Complaint,one or more of which demands were in writing. Defendants have ignored and/ordefied all such demands.

No Adequate Remedy at Law

23. Plaintiffs have no adequate remedy at law.

FIRST CAUSE OF ACTION(Continuing Trespass)

24. Plaintiffs repeat and reallege each allegation set forth in Paragraphs 1through 23, above.

25. In excavating and removing minerals, dumping fill, laying a rough gravelroad over a portion of such properties, and driving industrial vehicles over suchproperties, directing drainage onto such properties, and storing such vehicles andrelated equipment on such properties, Defendants have trespassed upon, and arecontinuing to trespass upon, the Ciardullo Furrows Road Properties.

26. By reason of Defendants’ trespasses, Plaintiffs have been deprived of theuse and value of such properties, have suffered and will suffer increased expense inthe restoration, remediation, regrading, maintenance, and improvement thereof, andhave suffered and will suffer great loss in the value thereof and in the saleability

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thereof, all to Plaintiffs’ damage in a sum not less than Two Million ($2,000,000)Dollars.

SECOND CAUSE OF ACTION(Continuing Nuisance)

27. Plaintiffs repeat and reallege each allegation set forth in Paragraphs 1through 23, above.

28. Defendants’ actions alleged above constitute a continuing nuisance that hascaused damage to the Ciardullo Furrows Road Properties.

29. By reason of Defendants’ continuing nuisance, Plaintiffs have beendamaged in an amount not less than Two Million ($2,000,000) Dollars.

THIRD CAUSE OF ACTION(Unjust Enrichment)

30. Plaintiffs repeat and reallege each allegation set forth in Paragraphs 1through 23, above.

31. By reason of the foregoing unauthorized and improper acts of trespass andnuisance, Plaintiffs have conferred upon Defendants a substantial benefit for whichDefendants have failed to pay.

32. By reason of Defendants’ unjust enrichment, Plaintiffs are entitled to thevalue of the benefit conferred upon Defendants in an amount not less than TwoMillion ($2,000,000) Dollars.

FOURTH CAUSE OF ACTION(Declaration of No Easement or Right-of-Way)

33. Plaintiffs repeat and reallege each allegation set forth in Paragraphs 1through 23, above.

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34. On a certain map entitled “Map of Property belonging to George C.McEwen” filed in the Office of the Clerk of the County of Suffolk on December 18,1871, as Map No. 284, upon which the Ciardullo Furrows Road Properties and theabove-described property of Defendant Shero appear, there also appeared certainnon-existent “paper” roads denominated “First Street,” “Second Street,” and “ThirdStreet,” running generally east-west, and “Centre Avenue,” running generallynorth-south (each, a “Paper Road”; together, the “Paper Roads”).

35. The entire length of every Paper Road abuts at least one of the CiardulloFurrows Road Properties.

36. For the past several years, Defendants have been traversing portions of thePaper Roads.

37. Beginning in 2012, certain Defendants began to assert that their traversingportions of the Paper Roads was pursuant to a claim of right.

38. Upon information and belief, no Defendant has ever had any right to usethe Paper Roads.

39. Upon information and belief, there is no easement or right-of-way of recordproviding any Defendant with a right to use the Paper Roads to any extent.

40. Defendants have not confined their traversing activities to the Paper Roads,but instead have traversed certain of the Ciardullo Furrows Road Properties withblatant disregard to the boundaries of the Paper Roads and of the Ciardullo FurrowsRoad Properties.

41. To the extent that any of the Ciardullo Furrows Road Properties and anyDefendants’ adjoining properties were ever owned by a single owner as part of acommon parcel, upon information and belief, no easement or right of way to use thePaper Roads was ever intended by such single owner to be conferred upon anyDefendant or its predecessors.

42. Even if there had been such an intention, Defendants have abused any sucheasement or right-of-way so egregiously and maliciously as to necessitate and justify

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its judicial extinguishment pursuant to Real Property Actions and ProceedingsLaw §§ 1501 and 1951, and other applicable laws.

RELIEF REQUESTED

WHEREFORE, Plaintiffs respectfully request the following:

Permanent Injunction

(a) a permanent injunction directed to Defendants, their agents,representatives, attorneys, successors and assigns, and allpersons in active concert or participation with them,directly or indirectly, as their interests may appear, to cease(with respect to the Ciardullo Furrows Road Properties) anyall acts of trespass, nuisance, and any acts by whichDefendants may be unjustly enriched;

Money Judgment Plus Attorneys’ Fees

(b) a money judgment against Defendants, jointly andseverally, in an amount not less than Two Million($2,000,000) Dollars to be determined at trial, together withinterest (including but not limited to prejudgment interestpursuant to CPLR § 5001(a) on grounds that judgment willhave been awarded on grounds of acts depriving orotherwise interfering with the enjoyment of real property),costs, disbursements, and attorneys’ fees of this action;

Declaration of No Easement or Right-of-Way

(c) a declaration that no Defendant has the benefit of anyeasement or right-of-way providing such Defendant with aright to use the Paper Roads to any extent;

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Punitive Damages

(d) punitive damages against Defendants, jointly and severally,in an amount to be determined at the trial of this action; and

Additional Available Relief

(e) such other and further relief as this Court may deem justand proper.

Dated: New York, New YorkApril 12, 2013

SHWAL & PLATT

by: Neal R. PlattA Member of the Firm23rd Floor767 Third AvenueNew York, New York 10017(212) 332-3311Attorneys for PlaintiffsDavid Ciardullo and Roger B. Rothman, in their Respective Capacities as Trustees of theJoan Ciardullo Trust, and Michael Ciardullo, inHis Capacity as Executor of the Estate of AlbertCiardullo

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