Eric M. Ferrante
Associate
INADMISSIBLE SETTLEMENT COMMUNICATION
March 5, 2021
Via Email
Walter A. Saurack, Esq.
Duane Morris LLP
RE: Fields Enterprises Inc. et al. v. Bristol Harbour Village Association, Inc.,
Dear Walter:
As you know, this Firm represents Plaintiffs and Counterclaim Defendants Fields Enterprises
Inc. (“FEI”) and Bristol Harbour Marina, LLC (collectively, “Plaintiffs”) in the above-captioned
action. As the summer months, and with them, the 2021 boating season, quickly approach we
are writing in yet another attempt to amicably resolve this dispute before the parties spend
significant sums pursuing competing appeals and more expensive discovery.1 We are hopeful
that, at a minimum, the BHVA chooses to engage in Plaintiffs’ most recent effort to resolve this
dispute as we believe there is significant common ground between the parties—as evidenced by
the fact the parties nearly reached agreement in spring 2020—and a resolution is in the
community’s best interest.
For the avoidance of any doubt, Plaintiffs’ proposal below is contingent upon the execution of a
comprehensive written agreement, executed by all parties, memorializing the parties’ agreement
on the points below and including mutual general releases of any claims the parties asserted or
could have asserted in the above-captioned action, as well as a discontinuance with prejudice of
the parties’ claims and counterclaims and any appeals in connection therewith. We believe the
1 In light of Justice Reed’s recent Decision and Order in Bachman, et al. v. Bristol Harbour
Village Association, Inc., et al., No. 128455-2020 (Sup. Ct. Ontario Cty. Feb. 24, 2021), BHVA should not anticipate collecting any attorneys’ fees against the Plaintiffs in this action as it is
clear that no such right exists under the Restated Declaration or New York law.
Walter A. Saurack, Esq.
INADMISSIBLE SETTLEMENT COMMUNICATION
March 5, 2021
Page 2
proposal below is consistent with the agreement that the parties nearly reached before litigation
was commenced and remains similar to the offer Plaintiffs made in October of last year.
A. The Elevator Dispute2
The primary issue driving this litigation is the parties’ dispute concerning Plaintiffs’ Nonresident
members’ ability to use the Elevator (which BHVA has admitted in letters to the
community encroaches on Plaintiffs’ property) to access Plaintiffs’ Marina. Although BHVA
justified its refusal to allow Non-residents to use the Elevator by pointing to health and safety
concerns related to COVID-19, it appears that this source of concern will not be present—or
will be significantly ameliorated—by the start of the 2021 boating season. However, it is clear
that BHVA will continue its refusal to allow Non-residents to use the Elevator this season and
into the future based on a newly articulated position that BHVA’s governing documents do not
allow such use.
Although BHVA’s governing documents may allow BHVA to place reasonable restrictions on
use of the Elevator, those documents expressly contemplate Non-resident members of the
Marina and do not prohibit Plaintiffs from renting boat slips to Non-residents. Indeed, to date,
and despite numerous letters to the community commenting on the issues in dispute, BHVA has
yet to point to a single provision of its governing documents barring Non-residents from joining
the Marina. Instead, the only documents BHVA has relied upon are the Cove Agreement and
its recognition in the 1990 Stipulation—two agreements to which BHVA is not a party.
Although we are confident that BHVA is not a third party beneficiary of either agreement, even
if it were it of course has the ability to waive any purported rights thereunder.3
Notwithstanding our confidence in Plaintiffs’ positions, and in the interest of avoiding the cost
and distraction of litigation to both themselves and the Bristol Harbour Village community,
2 Although we recognize that the Elevator may not be operational this season—a result
Plaintiffs hope can be avoided—this agreement will nonetheless inure to the long term benefit
of everyone involved once the Elevator is up and running again.
3 In a recent letter to the community, BHVA raised the possibility that if it were to allow Nonresident
members to join the Marina it could potentially be subject to liability to the actual
parties to the Cove Agreement, or to some sort of indemnification claim by Mr. Fields if the
parties to the Cove Agreement were to sue him for breaching the agreement. While we disagree
that allowing Non-resident members would be a breach of the Cove Agreement or 1990
Stipulation, and also do not believe BHVA’s fear finds any support in the law, Plaintiffs are
willing to agree to indemnify and hold BHVA harmless against any liability that might arise
under the Cove Agreement as a result of Plaintiffs’ renting of slips to Non-resident members.
Walter A. Saurack, Esq.
INADMISSIBLE SETTLEMENT COMMUNICATION
March 5, 2021
Page 3
Plaintiffs are willing to agree to an annual limit of 50 Non-resident slip renters,4 as well as a five
percent (5%) fee on Non-resident slip rental contracts to offset the cost of Elevator and other
maintenance, in exchange for an executed and recorded easement agreement memorializing
Plaintiffs’ Non-resident members’ right to use the Elevator. This easement agreement will also
grant BHVA an easement over Plaintiffs’ property to conduct scheduled maintenance of the
Elevator’s control room.5 To avoid future issues like those that occurred this boating season,
Plaintiffs will work with BHVA’s management company (currently, Crofton Perdue Associates,
Inc.) on all aspects of managing Non-resident member access.
Plaintiffs’ ability to rent to Non-residents is critical to the continued viability and operation of
the Marina as Non-residents allow Plaintiffs to stabilize business by filling empty slips once
BHVA residents have received their slip assignments. Therefore, if an agreement on this point
cannot be reached and BHVA’s refusal to allow Plaintiffs’ Non-resident members to use the
Elevator continues, Plaintiffs will have no choice but to seek to overturn on appeal Justice
Odorisi’s decision denying a preliminary injunction in this case.
B. The Stairway Parcel Dispute:
Plaintiffs maintain FEI’s ownership of the Stairway Parcel (Tax ID No. 168.16-1-8.3).
However, Plaintiffs recognize that the Stairway Parcel provides a valuable method of access to
the BHVA beach (as well as to Plaintiffs’ Marina) via the staircase traversing the parcel. Thus,
to clear any cloud in title while allowing BHVA continued access to its beach via the Stairway
Parcel, Plaintiffs propose the following:
BHVA will execute a quitclaim deed in favor of Plaintiffs that confirms Plaintiffs’
ownership of the Stairway Parcel and releases any claims to ownership or possession
that BHVA has asserted therein; and
4 As a show of good faith and Plaintiffs’ sincerity in resolving this dispute, this number is down
from the 60 Non-residents proposed in our letter dated October 23, 2020.
5 For the avoidance of any doubt, BHVA is not presently granted access over Plaintiffs’
property for the purposes of performing any upgrades and/or repairs to the Elevator. Upon
information and belief, BHVA has not obtained the proper permits, nor has it agreed to
indemnify or otherwise insure Plaintiffs against any loss that may occur as a result of the
Elevator work BHVA seeks to perform on Plaintiffs’ property. However, as a show of good
faith, Plaintiffs have been and continue to be willing to discuss a one-time license to allow
BHVA access over Plaintiffs’ property for the purposes of performing upgrades and/or repairs
to the Elevator (while the parties finalize the more fulsome agreement set forth herein), subject
to BHVA providing proof of the requisite permits, insurance (which reflect FEI, BHM, and
Jeremy Fields as Additional Insureds), liability releases, and town approval.
Walter A. Saurack, Esq.
INADMISSIBLE SETTLEMENT COMMUNICATION
March 5, 2021
Page 4
Plaintiffs will execute and deliver to BHVA an easement agreement granting BHVA a
permanent easement over the Stairway Parcel so that BHVA may maintain a staircase
for access to the BHVA beach.
In short, BHVA will retain its ability to use the Stairway Parcel to access the beach (the parcel’s
only beneficial use to BHVA) and Plaintiffs will continue to pay the taxes on it, just as they
have done since at least 2016.6
C. Disputes Regarding Other Lakeside Improvements, Including the Swim Platform
and Bathrooms:
As we previously set forth, Plaintiffs also desire to resolve the other remaining issues between
the parties concerning the other lakeside improvements owned by Plaintiffs.
Plaintiffs are willing to execute and deliver to BHVA a Bill of Sale, transferring to BHVA
certain floating dock improvements which include a conforming Swim Platform and the
gangway on Dock A.7 Plaintiffs will also permit and allow the BHVA, subject to terms to be
negotiated by the parties (including the sharing of maintenance costs), to use the bathroom
facilities owned by Plaintiffs at 5670 Shore Drive.8 Additionally, Plaintiffs will grant BHVA an
easement over Plaintiffs’ property located adjacent to BHVA’s beach (Tax Parcel ID No.
168.16-1-8.11) for the purposes of conducting scheduled maintenance and repairs to the Elevator, the Stairway, and the BHVA beach.9 In exchange, BHVA will execute an easement
agreement clarifying and memorializing Plaintiffs’ easement rights necessary for Plaintiffs to
operate the Marina and maintain the floating dock improvements in Canandaigua Lake,
specifically including an easement over Dock A and recognizing Plaintiffs’ right to use the
6 Indeed, the Ontario County real property tax records reflect that the entities in Plaintiffs’ chain
of title have paid the real property taxes on the Stairway Parcel since at least 1990 and that
BHVA has never received or paid a tax bill on the parcel in that time.
7 The Swim Platform and Dock A were recently modified by Plaintiffs offsite in an effort to
ensure compliance with historical State and local permitting documents and guidance from State
and local permitting authorities.
8 Plaintiffs will need to be named as an Additional Insured on the insurance policy insuring the
transferred improvements so long as they continue to remain in Canandaigua Lake.
Additionally, Plaintiffs will need to be named as Additional Insured on BHVA’s general
liability policy and/or BHVA will need to indemnify Plaintiffs against any potential
injuries/damages that may occur in connection with BHVA’s use of the bathroom facilities.
9 BHVA cannot prevail on its easement by necessity claim because the beach is not landlocked
and instead is accessible in two ways: (1) from Cliffside Drive via the Elevator and (2) via
Canandaigua Lake.
Walter A. Saurack, Esq.
INADMISSIBLE SETTLEMENT COMMUNICATION
March 5, 2021
Page 5
easements recorded with the Ontario County Clerks Office at Liber of Deeds 782 page 506, map
5386 (the kayak/suncraft launch).
The proposal above and will clarify the patchwork of ownership and easement rights around the
lakefront, will allow BHVA to collect increased contribution from Plaintiffs to be put toward
Elevator repairs and maintenance, and will allow the Bristol Harbour community to enjoy the
amenities owned and maintained by Plaintiffs while ensuring the continued viability of the
Marina for BHVA residents. We trust you will share this proposal with the BHVA Board of
Directors for their consideration and we hope to hear back from you.
This letter is written without prejudice to or waiver of any of Plaintiffs’ rights or remedies,
whether available at law or equity, or any of Plaintiffs’ claims asserted in the above-captioned
action, all of which are expressly reserved.
Please feel free to contact me if you would like to discuss any of the above. We look forward to
hearing from you.
Sincerely,
/s/ Eric M. Ferrante
Eric M. Ferrante
Associate
EMF
