Edscott Realty Corp. v LaPlante Enters., Inc.

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[*1] Edscott Realty Corp. v LaPlante Enters., Inc. 2018 NY Slip Op 51066(U) Decided on July 5, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2018
Supreme Court, Warren County

Edscott Realty Corp., Plaintiff,

against

LaPlante Enterprises, Inc., Charles R. LaPlante and Veronika M. LaPlante, Defendants.



61356



Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (John D. Wright of counsel), for plaintiff.

Caffry & Flower, Glens Falls (John W. Caffry and Amanda J. Kukle of counsel), for defendants.
Robert J. Muller, J.

Plaintiff Edscott Realty Corp. owns and operates the Olympian Village Motel (hereinafter Olympian Village), located on the shore of Lake George in the Town of Lake George, Warren County. Defendants Charles R. LaPlante (hereinafter LaPlante), Veronika M. LaPlante and LaPlante Enterprises, Inc. own and operate the Stepping Stones Resort (hereinafter Stepping Stones), located to the south of and immediately adjacent to Olympian Village. Defendants commenced an action against plaintiff in 1999 alleging, inter alia, that plaintiff had "usurp[ed its] littoral property interest in having reasonable, safe and convenient access to the water." More specifically, defendants claimed that boats berthed at Olympian Village "encroach[ed] into the space . . . used by [them] and [their] guests for [berthing] boats and . . . block[ed] the use of [the] southernmost Stepping Stones dock." Issue was joined with plaintiff asserting a counterclaim that one of Stepping Stones' docks extended past the littoral boundary line between the parties' properties.

This 1999 action was ultimately resolved by stipulation so-ordered by the Court (Aulisi, J.) on September 15, 2002 (hereinafter the 2002 stipulation), which stipulation provides as follows:

"The parties agree that the common boundary line between their parcels shall be as shown on a map of survey entitled, "LaPlante Enterprises," by Van Dusen & Steves dated January 25, 2002. Said boundary line being the dark bold line shown on said survey and [*2]said property and littoral line as continued into the waters of Lake George along the north edge of the former concrete dock location."Usage of the waters of Lake George by each party, their agents, invitees, guests, licensees, successors and assigns shall be in accordance with the stockade fence line as it runs parallel and three inches north of the aforesaid boundary line as shown on the aforesaid January 25, 2002[] survey by Van Dusen & Steves. That is to say the fence line as established three inches north of the boundary line shall be continued out into the waters of Lake George in an easterly direction along said course."The waters north of the fence line so continued shall be exclusively for [defendants, their] agents, guests, invitees, licensees and successors and assigns free from any interference whatsoever by [plaintiff, its] agents, guests, invitees, licensees, successors and assigns."The waters south of the fence line so continued shall be exclusively for the use of [plaintiff, its] agents, guests, invitees, licensees, successors and assigns free from any interference whatsoever by [defendants, their] agents, guests, invitees, licensees, successors and assigns."

Notwithstanding the entry of the 2002 stipulation, the parties' relationship continued to deteriorate. In 2008, defendants sought to modify the stockade fence running along the boundary line between Stepping Stones and Olympian Village by, inter alia, increasing its height. Plaintiff opposed the modifications and filed four separate CPLR article 78 proceedings between 2008 and 2014, each of which challenged various approvals issued by the Town of Lake George Planning Board and Zoning Board of Appeals. Plaintiff was largely unsuccessful in these proceedings and the modifications were eventually made by defendants.

In June 2014, defendants applied for a Class A marina permit from the Lake George Park Commission (LGPC). The President of plaintiff — Thomas Burke — wrote a letter opposing the application "on the basis that the operation of such a marina would result in . . . violation of [the 2002] stipulation." Burke further stated as follows:

"Due to the configuration of [Stepping Stones'] docks, with part of one dock (a roughly 'F' shaped dock) running parallel to the shoreline blocking direct access to the remaining docks, boaters trying to dock at the Stepping Stones Resort must travel to the south to maneuver around the 'F' dock to access their dock spaces. This requires the boaters to cross the parties' boundary line in close proximity to [Olympian Village's] lake shore in direct violation of the parties' stipulated settlement."

Notwithstanding Burke's opposition to the application, a Class A marina permit was issued to defendants on July 8, 2014. Plaintiff then commenced the instant action on April 9, 2015 by filing a summons and complaint, together with a notice of pendency.

Plaintiff alleges that defendants are liable for breach of contract as a result of violating the 2002 stipulation and seeks monetary damages together with a permanent injunction restraining defendants from operating a Class A marina [FN1] and, further, from allowing its guests to cross the [*3]littoral boundary line established in the 2002 stipulation. Issue was then joined with defendants asserting three counterclaims: (1) that plaintiff violated the 2002 stipulation because one or more boats berthed at Olympian Village crossed the littoral boundary line established therein; (2) that they are entitled to a declaration "that the rights of the parties to the exclusive use of certain parts of the waters of Lake George, as agreed to in [the 2002] stipulation, are limited to the berthing of boats at the docks at their respective properties and . . . does not affect the rights of the parties or others to navigate upon said waters"; and (3) that, if the Court finds that the rights of the parties under the 2002 stipulation include the exclusive use of all waters of Lake George to the north and south of the agreed-upon boundary line, plaintiff violated the 2002 stipulation by allowing guests at Olympian Village to operate boats in the waters north of the boundary line. Discovery has now been substantially completed. Presently before the Court is defendants' motion for (1) summary judgment dismissing the complaint and granting the second counterclaim; (2) an Order cancelling the notice of pendency and awarding costs and expenses; and (3) an Order imposing costs and sanctions.[FN2] Each aspect of the motion will be addressed ad seriatim.

Summary Judgment

On a motion for summary judgment, the movant must establish, by admissible proof, its entitlement to judgment as a matter of law (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]).

At the outset, defendants contend that they are entitled to summary judgment dismissing plaintiff's request for a permanent injunction restraining them from operating a Class A marina.Specifically, defendants contend that they cannot be restrained from operating a Class A marina because the statute of limitations for challenging the LGPC's issuance of the Class A marina permit has expired. Indeed, "a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding" (CPLR 217 [1]).



Here, the Class A marina permit was issued by the LGPC on July 8, 2014 and, as such, any proceeding seeking to vacate the permit had to be commenced on or before November 8, 2014. In seeking an Order whereby defendants are restrained from operating a Class A marina, plaintiff is seeking — in essence — to vacate the permit. The Court therefore finds that plaintiff's request [*4]for a permanent injunction is barred by the statute of limitations.[FN3]

Briefly, even if it was not barred by the statute of limitations, the Court would nonetheless find that defendants are entitled to summary judgment dismissing plaintiff's request for a permanent injunction restraining them from operating a Class A marina. LaPlante submitted an affidavit in support of the motion stating, in pertinent part:

"We applied for the [Class A p]ermit when it was learned that such a permit was required to operate the preexisting boat launch. Prior to that time, we believed that as a resort with housekeeping cottages, we were exempt from the need to obtain a Class A [m]arina to seasonally rent out one berthing space. . . ."The boat launch existed and was in use at the time my wife and I purchased the property in 1991 and we and our guests have used the boat launch since that time. The use of the boat launch is limited to us and our guests. It is not open to the general public."No new construction or activities, such as non-resort guests using the boat launch, have occurred as a result of the [Class A marina p]ermit."The [Class A marina p]ermit in no way violates or otherwise causes any violations of the 2002 [s]tipulation."

Plaintiff has not submitted anything to refute these statements and, in fact, has not submitted anything whatsoever in opposition to this aspect of the motion.

Defendants next contend that they are entitled to summary judgment dismissing the remaining claims in the complaint because plaintiff has violated the 2002 stipulation — regardless of how it is interpreted. Specifically, defendants contend that a boat berthed at Olympian Village's dock crossed the littoral boundary line in violation of the 2002 stipulation, as they interpret it. Defendants further contend that guests at Olympian Village regularly navigate the waters of Lake George north of the littoral boundary line in violation of the 2002 stipulation, as plaintiff interprets it.

"The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" (Caroll v Rondout Yacht Basin, Inc., ___ AD3d ___, ___, 2018 NY Slip Op 04051, *1 [2018], quoting WFE Ventures, Inc. v Mills, 139 AD3d 1157, 1160 [2016] [internal quotation marks and citations omitted]). It is therefore "well settled that 'a party who seeks to recover damages from the other party to the contract for its breach must show that he himself is free from fault in respect of performance'" (County of Jefferson v Onondaga Dev., LLC, 151 AD3d 1793, 1795 [2017], quoting Rosenthal Co. v Brilliant Silk Mfg. Co., Inc., 217 App Div 667, 671 [1926]).

Here, LaPlante states as follows:

"Beginning in the summer of 2013, [p]laintiff allowed a boat owned by Kevin Clifford [FN4]to [*5]be berthed on the north side of [p]laintiff's dock, which was the same dock that was at issue in the 1999 [a]ction. "The boat was approximately 31 feet long and 11 feet wide. When it was berthed on the north side of the dock it extend[ed] over the littoral property line extension in violation of LGPC Regulation 6 NYCRR § 646-1-6 (k)[FN5]and the 2002 [s]tipulation. "After I made an oral complaint to the LGPC, the boat was moved, apparently without any formal enforcement action being taken by the LGPC."It was not until February 3, 2015 that the Olympian Village . . . obtained a permit to reduce the width of its dock by 2.5 feet on the northern side, which would hypothetically allow Kevin Clifford's boat to be berthed without encroaching on our side of the boundary line."However, [p]laintiff breached the 2002 [s]tipulation by continuing to berth [the] boat in a manner that used the waters north of the common littoral boundary line extension."

LaPlante further states:

"[Olympian Village's] guests regularly navigate north of the common boundary to access the other 8/10th of Lake George which — under [p]laintiff's interpretation — is exclusively for [Stepping Stones'] guests."Additionally, on or about August 13, 2010, one of [Olympian Village's] guests actually interfered with [defendants'] use of the waters, when said guest in a pontoon boat hit a boat belonging to one of [Stepping Stones'] guests which was properly [berth]ed at [Stepping Stones'] docks."

Given these statements from LaPlante, the Court finds that defendants have satisfied their initial burden of demonstrating that they are entitled to summary judgment dismissing the remaining claims in the complaint.

The Court further finds that plaintiff has failed to raise a triable issue of fact as to whether it violated the 2002 stipulation. Indeed, its opposition papers fail to address this issue entirely.[FN6]

Finally, defendants contend that they are entitled to summary judgment granting their second counterclaim because the rights of the parties to the exclusive use of certain parts of the waters of Lake George — as set forth in the 2002 stipulation — apply only to the berthing of boats at their respective properties and not to the navigation of boats on Lake George. LaPlante — who has owned Stepping Stones since 1991 and was a party to the 1999 action — states as follows:

"The 2002 [s]tipulation granted each party the exclusive right to berth boats at the docks [*6]on their respective sides of the littoral boundary and prevented each party from berthing boats in ways that cross the littoral boundary line extension. "Access to Lake George is one of the main draws of my business. I would not have entered into an agreement that limited my rights or the rights of our guests to navigate on significant portions of the public waters of Lake George."

"It is well settled that '[a] written agreement that is clear and complete on its face must be enforced according to the plain meaning of its terms'" (Van Etten Oil Co., Inc. v Aero Star Petroleum, Inc., 131 AD3d 740, 741 [2015], quoting Matter of Warner v Board of Educ., Cobleskill—Richmondville Cent. Sch. Dist., 108 AD3d 835, 836 [2013], lv denied 22 NY3d 859 [2014]; see Samuel v Druckman & Sinel, LLP, 12 NY3d 205, 210 [2009]). "In order to determine whether the terms of an agreement are ambiguous, a court must 'examine the entire contract and consider the relation of the parties and the circumstances under which it was executed'" (Van Etten Oil Co., Inc. v Aero Star Petroleum, Inc., 131 AD3d at 741, quoting Matter of Warner v Board of Educ., Cobleskill—Richmondville Cent. Sch. Dist., 108 AD3d at 836 [internal quotation marks and citations omitted]). "'When the language of a contract is ambiguous, its construction presents a question of fact which may not be resolved by the court on a motion for summary judgment'" (Van Etten Oil Co., Inc. v Aero Star Petroleum, Inc., 131 AD3d at 741, quoting Leon v Lukash, 121 AD2d 693, 694 [1986] [citations omitted]; accord 1000 N. of NY Co. v Great Neck Med. Assoc., 7 AD3d 592, 593 [2004]).

Here, the language of the 2002 stipulation is ambiguous with respect to how far the parties' littoral rights extend into the waters of Lake George. The stipulation states simply that "the boundary line shall be continued out into the waters of Lake George in an easterly direction" and "[t]he waters north of the [boundary] line so continued shall be exclusively for [defendants]" while "[t]he waters south of the [boundary] line so continued shall be exclusively for [plaintiff]." Further, while defendants' interpretation of the language is reasonable, so too is the interpretation advanced by plaintiff — namely, that the language was intended to describe not only the berthing of boats but also the ingress and egress of boats docking at the parties' respective properties. The Court therefore finds that defendants have failed to demonstrate their prima facie entitlement to summary judgment granting their second counterclaim.

To the extent that defendants have not met their initial burden with respect to the second counterclaim, the Court need not consider plaintiff's opposition papers. That being said, were the opposition papers to be considered, the Court would find that plaintiff has succeeded in raising a triable issue of fact. Francis Clifford — a former shareholder of plaintiff who has operated Olympian Village since 1991 and was a party to the 1999 action — submitted an affidavit stating as follows:

"[T]here has been a long history of [Stepping Stones'] guests crossing near and through . . . Olympian [Village's] swimming area in order to access [Stepping Stones'] docks. This predated the 1999 litigation."The parties negotiated a resolution to the [1999] litigation which we believed would resolve a number of outstanding issues between the parties, including the interference by boats operated by [Stepping Stones'] guests . . . ."The purpose of [the language used] was, in part, to ensure that [Stepping Stones'] guests did not operate boats in a manner which interfered with . . . Olympian[ Village's] guests [*7]using the beach/swimming area on . . . Olympian[ Village's] property."There is simply no basis for LaPlante's suggestion that the word 'usage' was to be limited to the berthing . . . of boats. If the parties had intended such a limited meaning, we would have used more specific, limiting language."The word 'usage' was intended by the parties to encompass all uses, including the operation of boats and other vessels."

Defendants suggest that the Court — were it to accept plaintiff's interpretation of the 2002 stipulation — would need to limit the guests at Stepping Stones to navigating only those waters north of the littoral boundary line while simultaneously limiting the guests at Olympian Village to navigating only those waters south of the boundary line. The Court finds, however, that this suggestion is disingenuous and takes plaintiff's argument to an unreasonable extreme. Plaintiff does not contend — nor could it — that the parties' littoral rights extend to the opposite side of Lake George. Plaintiff does, however, suggest that the parties' littoral rights extend to that portion of Lake George immediately adjacent to the shoreline — where boats navigate in and out of the parties' respective dock spaces. The Court finds this interpretation reasonable in view of the language of the 2002 stipulation.

Based upon the foregoing, the first aspect of defendants' motion is granted to the extent that they are awarded summary judgment dismissing the complaint.[FN7] The Court declines, however, to award summary judgment granting the second counterclaim.

Counsel for the parties are hereby directed to appear for a conference on July 20, 2018 at 10:00 A.M. at the Warren County Courthouse in Lake George, New York for the purpose of establishing a date for the trial of defendants' counterclaims.



Cancellation of Notice of Pendency

Defendants contend that the notice of pendency must be cancelled because this action does not fall within the purview of CPLR 6501, which authorizes the filing of such notice "in any action . . . in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property . . . ." According to defendants, plaintiff is not claiming title to or interest in their real property; this is merely a breach of contract action.

While plaintiff has not presented any opposition to this aspect of the motion, the permanent injunctions demanded by plaintiff could certainly affect defendants' use and enjoyment of their property — specifically, their shoreline. As such, the Court finds that defendants' contention is without merit.

This notwithstanding, CPLR 6513 provides that "[a] notice of pendency shall be effective for a period of three years from the date of filing." The notice of pendency under consideration here was filed on April 9, 2015 and, as such, expired on April 9, 2018. To the extent that plaintiff has not filed a motion to extend the notice of pendency (see CPLR 6513) — and counsel for plaintiff indicated at oral argument that it has no plans to do so — this aspect of defendants' motion is now moot.

Insofar as defendants' request for costs and expenses is concerned, CPLR 6514 (c) provides that "[t]he court, upon motion of any person aggrieved and upon such notice as it may require, may direct any county clerk to cancel a notice of pendency, if the plaintiff has not commenced or prosecuted the action in good faith." To the extent that the Court has not — and cannot — direct the county clerk to cancel the notice of pendency, CPLR 6514 (c) is no longer applicable.

Based upon the foregoing, the second aspect of defendants' motion is denied in its entirety.



Costs and Sanctions

Defendants contend that they are entitled to costs and sanctions because this action is without merit and was commenced by plaintiff merely to harass them.

Courts may impose discretionary costs or sanctions against a party who engages in "frivolous conduct" (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [a], [b]). Conduct will be deemed frivolous if "(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false" (Rules of Chief Admin of Cts [22 NYCRR] § 130-1.1 [c]; see Kinge v State of New York, 302 AD2d 667, 670 [2003]).

Under the circumstances, the Court finds that defendants are not entitled to either costs or sanctions. To the extent that the language of the 2002 stipulation is ambiguous with respect to how far the parties' littoral rights extend into the waters of Lake George, it cannot be said that the action is completely without merit in the law. Further, because plaintiff's interpretation of the language of the 2002 stipulation is reasonable, it cannot be said that the action was commenced only to harass defendants. Indeed, plaintiff has presented numerous videos of boats passing dangerously close to its fishing and swimming areas while attempting to dock at Stepping Stones.Based upon the foregoing, the third aspect of defendants' motion is denied.

Therefore, having considered the Affidavit of Amanda J. Kukle, Esq. with exhibits attached thereto, sworn to October 15, 2017, submitted in support of the motion; Affidavit of Charles R. LaPlante with exhibits attached thereto, sworn to October 5, 2017, submitted in support of the motion; Memorandum of Law of Amanda J. Kukle, Esq., dated October 5, 2017, submitted in support of the motion; Affidavit of John D. Wright, Esq., sworn to November 21, 2017, submitted in opposition to the motion; Affidavit of Francis Clifford with exhibits attached thereto, sworn to November 21, 2017, submitted in opposition to the motion; Affidavit of Kevin Clifford with exhibit attached thereto, sworn to November 21, 2017, submitted in opposition to the motion; Reply Affidavit of Amanda J. Kukle, Esq., sworn to December 21, 2017; and Reply Memorandum of Law of Amanda J. Kukle, Esq., dated December 21, 2017, and oral argument having been heard on June 12, 2018 with John D. Wright, Esq. appearing on behalf of plaintiff and John W. Caffry, Esq. and Amanda J. Kukle, Esq. appearing on behalf of defendants, it is hereby

ORDERED that the first aspect of defendants' motion — which seeks summary judgment dismissing the complaint and granting the second counterclaim — is granted to the extent that the complaint is dismissed; and it is further

ORDERED that the first aspect of defendants' motion is otherwise denied; and it is further

ORDERED that counsel for the parties shall appear for a conference on July 20, 2018 at 10:30 A.M. at the Warren County Courthouse in Lake George, New York for the purpose of establishing a date for the trial of defendants' counterclaims; and it is further

ORDERED that the second aspect of defendants' motion — which seeks an Order cancelling the notice of pendency and awarding costs and expenses — is denied in its entirety; and it is further

ORDERED that the third aspect of defendants' motion — which seeks an Order imposing costs and sanctions — is denied in its entirety; and it is further

ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly 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 the Notice of Motion dated October 6, 2017 and the submissions enumerated above. Counsel for defendants is hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry upon counsel for plaintiff in accordance with CPLR 5513.



Dated: July 5, 2018

Lake George, New York

ROBERT J. MULLER, J.S.C. Footnotes

Footnote 1:While the complaint erroneously states that defendants obtained a Class B marina permit and goes on to request that defendants be restrained from operating a Class B marina, the error has not resulted in prejudice to defendants and will be disregarded by the Court (see CPLR 2001; State of NY Higher Educ. Servs. Corp. v Sparozic, 35 AD3d 1069, 1070 [2006]).

Footnote 2:The memorandum of law submitted in support of the motion was 39 pages in length and, as such, violated the Court's rule that "memoranda of law shall be limited to 30 pages (exclusive of cover page and table of contents)." While the memorandum of law was nonetheless considered, counsel for defendants is hereby directed to review the Court's rules — available online at http://www.nycourts.gov/courts/4jd/mt-rules/MullerCourtRules2018.pdf — prior to the filing of any future motions.

Footnote 3:It must also be noted that plaintiff has failed to name a necessary party — namely the LGPC. With that said, because the LGPC is subject to the jurisdiction of the Court and could be summoned, this does not constitute grounds for dismissal (see CPLR 1001 [b]; Matter of Gleason v Town of Clifton Park Planning Bd., 90 AD3d 1205, 1206 [2011]).

Footnote 4:Kevin Clifford is the assistant manager of Olympian Village.

Footnote 5:6 NYCRR 646-1.6 provides as follows: "No vessel shall be berthed at a dock, wharf or mooring without the prior consent of the adjoining landowner so as to encroach beyond the adjacent property line extended into the lake on the same axis as the property line runs onshore where it meets the lake, or at a right angle to the mean high-water mark, whichever results in the lesser setback."

Footnote 6:The Court notes that both Kevin Clifford and his father Francis Clifford — who operate the Olympian Village — submitted affidavits in opposition to the motion and certainly could have addressed LaPlante's statements relative to plaintiff's breaches of the 2002 stipulation. They did not, however, instead focusing solely on defendants' alleged breaches.

Footnote 7:While defendants have arguably established their entitlement to summary judgment granting their first and third counterclaims, they have not moved for such relief and CPLR 3212 (b) — which authorizes the Court to award summary judgment even where such relief has not been sought — applies only to nonmoving parties.