Matter of Tedeschi v Lake George Park Commn.

[*1] Matter of Tedeschi v Lake George Park Commn. 2017 NY Slip Op 51001(U) Decided on August 8, 2017 Supreme Court, Warren County Muller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 8, 2017
Supreme Court, Warren County

In the Matter of the Application of Frederick C. Tedeschi, Petitioner,

against

Lake George Park Commission, Michael C. Hopper, Doris Hopper, Respondents.



62478



For Petitioner:

Mazzotta, Sherwood & Vagianelis, P.C.

(Ronnie Sills Lindberg of counsel)

9 Washington Square, Suite 1

Albany, NY 12205

(518) 452-0941

For Respondents Michael C. Hopper and Doris Hopper:

McPhillips, Fitzgerald & Cullum, L.L.P.

(James E. Cullum of counsel)

288 Glen St, Glens Falls, NY 12801

(518) 792-1174
Robert J. Muller, J.

The current action involves a dispute over the interpretation of a restrictive covenant. The Court previously set forth the underlying facts when it dismissed the proceeding as to the Lake George Park Commission (LGPC) and converted the remaining claim to a declaratory judgment action ( Tedeschi v. Lake George Park Commission, 53 Misc 3d 1219(A) (2016)).

Plaintiff and defendants each own property in the Shore Colony on Assembly Point located on Lake George in the Town of Queensbury, Warren County. Owners at the Shore Colony have an undivided one-hundredth (1/100) interest in a beach, boardwalk and main docks. They are also subject to various restrictive covenants.

There are boat slips at a main dock, which are designated by letters and are individually [*2]owned by some — but not all — members of the Shore Colony. Such owners are authorized to and typically place finger docks at such locations. Finger docks attach to the outside edge of the main dock and extend perpendicularly therefrom into the lake providing a place to moor a boat. Defendants, unlike plaintiff, own a boat slip.

Defendants received permission from the LGPC to use an articulating dock as their finger dock at their boat slip. An articulating dock functions as a finger dock and appears similar to the other finger docks when fully in the water during boating season. However, an articulating dock enables the owner to lift the end of the dock that is farthest from the main dock out of the water, preventing damage to the dock during the winter season. To accomplish this, two upright boards are attached to the outside edge of the main dock and extend up perpendicularly to where a horizontal crosspiece board attaches. A chain or rope from the crosspiece attaches to the far end of the dock and is used to pull up the dock (which has a hinge attachment on the side of the main dock).

After defendants placed their articulating dock at their slip location, plaintiff commenced this proceeding (later converted to a declaratory judgment action) alleging that the articulating dock violates a relevant restrictive covenant of the Shore Colony. Plaintiff has now moved for summary judgment seeking, among other things, enforcement of the restrictive covenant. Defendants have cross-moved for summary judgment dismissing the action.

The law regarding restrictive covenants has been set forth by the Appellate Division as follows:

The law favors free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them. Moreover, courts will enforce such restraints only where the party seeking enforcement establishes their application by clear and convincing evidence. Where the language used in a restrictive covenant is equally susceptible of two interpretations, the less restrictive interpretation must be adopted.

(Ernie Otto Corp. v Inland Southeast Thompson Monticello, LLC, 91 AD3d 1155, 1156 [2012], lv denied 19 NY3d 802 [2012] [internal quotation marks, citations and brackets omitted]; see Halfond v White Lake Shores Assn., Inc., 114 AD3d 1315, 1317 [2014]; Ludwig v Chautauqua Shores Improvement Assn., 5 AD3d 1119, 1120 [2004], lv denied 3 NY3d 601 [2004]; Greek Peak v Grodner, 155 AD2d 827, 827-828 [1989], affd 75 NY2d 981 [1990]).

Here, the deed description and pertinent restrictive covenant provide in relevant part as follows:

Also, an undivided one one-hundredth (1/100th) of the "Beach," "Boardwalk" and "Main Docks" as shown on said map, excepting and reserving "Boat Slips" and the finger docks and use thereof by the grantor, his heirs and assigns.This conveyance is made and accepted subject to the following covenants, conditions and restrictions which shall run with the land:1. The portion of the aforesaid premises, of which an undivided 1/100 part is described, shall be owned in connection with the ownership of one or more of the lots on said map and used only for bathing and beach purposes in common with other undivided owners thereof and the parties of the second part shall not erect or move any building or obstruction on said premises, or partition same by action other otherwise. (Emphasis [*3]added).

Plaintiff's primary argument is that the two boards attached to the side of the dock and the crosspiece (hereinafter referred to as the lift) constituted a building or obstruction on the main dock in violation of the restrictive covenant. The lift was not a "building" in any reasonable, common or normal sense in which that word is used (see e.g. C.D. Sumner, Annotation, What Constitutes a "Building" Within a Restrictive Covenant, 18 ALR3d 850). To the extent the term "obstruction" is ambiguous as used in the covenant, "the less restrictive interpretation must be adopted" (Ernie Otto Corp. v Inland Southeast Thompson Monticello, LLC, 91 AD3d at 1156). As such, absent other language in the document indicating an intent for a more expansive use of the term obstruction, such term in a covenant generally connotes an intent to prohibit the placing of barriers that might restrict the free flow or movement over the relevant area (see Sunrise Plaza Assoc. v International Summit Equities Corp., 152 AD2d 561, 561 [1989], lv denied 75 NY2d 703 [1990]).

The pertinent language of the deed and restrictive covenant, when read together, provide support for defendants' position. Initially, it merits noting that boat slips are specifically excepted from the 1/100th ownership share. Thus, ownership of a 1/100th share does not include an ownership interest in the area used for boat slips and finger docks. The common ownership in the beach, boardwalk and main docks is specifically stated to be for bathing and beach purposes. There is no showing in the papers before the Court that defendants' lift and articulating dock inhibits in any meaningful way the use of or access to the beach, boardwalk and main docks for bathing or beach purposes.

The lift is not located on the walking area of the main dock. It does not hinder access or use of the dock; particularly as such use relates to the purposes authorized for those who — like plaintiff - own a 1/100 share in the common areas (but do not own a boat slip). The structure is attached to the side of the main dock and defendants have produced uncontested proof that owners of boat slips attach docks to the side of the main dock. Any new obstacle on the side of the dock and extending vertically therefrom does not inhibit use or access to the pertinent areas for the purposes authorized by the covenant.

The restriction regarding an "obstruction" does not contain language indicating in any fashion a restriction regarding a view (cf. Witter v Taggart, 78 NY2d 234, 237 [1991] [covenant prohibiting structures "which shall obstruct or interfere with the outlook or view"]). Reading a restriction regarding view into the covenant under these circumstances would be adopting an expansive interpretation rather than, as the law requires, the less restrictive interpretation (see e.g. Ernie Otto Corp. v Inland Southeast Thompson Monticello, LLC, 91 AD3d at 1156 ). Indeed, read in context, the intent of this restriction pertains to access and use regarding commonly owned areas, and no mention is made of view. Furthermore, plaintiff's reliance on cases interpreting covenants restricting structures is misplaced (see e.g. Freedman v Kittle, 262 AD2d 909, 911 [1999]). Simply stated, the term structures is not used in the relevant covenant. Plaintiff's assertion that the articulating dock may somehow weaken or compromise the integrity of the main dock is supported solely by speculation (see e.g. Park Place At Malta, LLC v Berkshire Bank, 148 AD3d 1414, 1416-1417 [2017] ["mere speculation . . . was patently insufficient to defeat summary judgment"]).

Plaintiff's have failed to establish a prima facie case for summary judgment. Defendants, [*4]on the other hand, have put forth sufficient evidence to support summary judgment and plaintiff has failed to raise a triable issue. Defendants' motion for summary judgment dismissing the action is thus granted and plaintiff's motion denied.

The request for counsel fees is denied (see e.g. Schuyler Meadows Country Club, Inc. v Holbritter, 95 AD3d 1408, 1409 [2012], lv denied 19 NY3d 813 [2012]). The remaining arguments are academic or unavailing.

Based upon the foregoing analysis, upon review of the papers as hereafter set forth, it is

ORDERED that plaintiff's motion for summary judgment is denied; and it is further

ORDERED that defendants' cross motion for summary judgment dismissing the action is granted, and the action is dismissed; and it is further

ORDERED that any relief not specifically addressed has been considered and is hereby denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with Plaintiff's Notice of Motion dated March 28, 2017 and Defendants' Notice of Cross Motion dated May 17, 2017. Counsel for defendants is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.

Dated: August 8, 2017

Lake George, New York

ROBERT J. MULLER, J.S.C.

Papers Reviewed:

1. Plaintiff's Notice of Motion for Summary Judgment, dated March 28, 2017;

2. Affidavit of Frederick C. Tedeschi, dated March 24, 2017, Exhibits Annexed thereto;

3. Plaintiff's Memorandum of Law, dated March 28, 2017.

4. Defendants' Notice of Cross Motion for Summary Judgment, dated May 17, 2017;

5. Affidavit of Michael C. Hopper, dated May 17, 2017, Exhibits Annexed thereto;

6. Defendants' Memorandum of Law, dated May 17, 2017.

7. Reply Affidavit to Cross Motion of Ronnie Sills Lindberg, Esq., dated May 30, 2017;

8. Supplemental Affidavit of Ronnie Sills Lindberg, Esq., dated June 2, 2017; Exhibits Annex thereto.