| Town of Riverhead v Silverman |
| 2008 NY Slip Op 07235 [54 AD3d 1025] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Town of Riverhead, Plaintiff, v Henry B. Silverman et al.,Appellants, and Wells Creek Home Owner's Association, Inc., Respondent, et al.,Defendant. |
—[*1] Ciarelli & Dempsey, Riverhead, N.Y. (John L. Ciarelli of counsel), for respondent.
In an action, inter alia, to enforce an easement and for injunctive relief, the defendants HenryB. Silverman and Melissa Silverman appeal from an order of the Supreme Court, Suffolk County(Cohalan, J.), dated June 26, 2007, which granted the motion of the defendant Wells CreekHome Owner's Association, Inc., pursuant to CPLR 3211 (a) (1), to dismiss the cross claimasserted by them against that defendant.
Ordered that the order is affirmed, with costs.
In 1986 William J. Nohejl, Sr., obtained approval to subdivide land he owned in Aquebogue,located in the Town of Riverhead, into five lots. That year, he filed a declaration of covenantsand restrictions (hereinafter the Declaration), dated December 3, 1986. In pertinent part, theDeclaration provided for an easement connecting Peconic Bay Boulevard with Reeve's Creek,also known as Wells Creek, to benefit each of the subdivision lot owners, as well as for access toa floating dock and walkway in Wells Creek at the terminus of this easement. Following thecommencement of this action, the defendants Henry B. Silverman and Melissa Silverman(hereinafter the appellants), who now own the parcel over which the easement runs and fromwhich the dock extends into Wells Creek, interposed a cross claim against the defendant WellsCreek Home Owner's Association, Inc. (hereinafter the Association), seeking to quiet title to thedock, although they acknowledge the rights of the members of the Association to use and enjoythe dock. The Association moved to dismiss the cross claim pursuant to CPLR 3211 (a) (1).[*2]
To prevail on a motion to dismiss pursuant to CPLR 3211(a) (1), the movant must demonstrate that " 'the documentary evidence utterly refutes plaintiff'sfactual allegations, conclusively establishing a defense as a matter of law' " (R.I. Is. House, LLC v North Town Phase IIHouses, Inc., 51 AD3d 890, 893 [2008], quoting Goshen v Mutual Life Ins. Co. ofN.Y., 98 NY2d 314, 326 [2002]; seeHSBC Bank USA, N.A. v Decaudin, 49 AD3d 694, 695 [2008]). "[D]ismissal pursuantto CPLR 3211 (a) (1) cannot rest on an ambiguous document" (R.I. Is. House, LLC v NorthTown Phase II Houses, Inc., 51 AD3d at 895).
The Declaration set forth Nohejl's intention to reserve title to the dock to either convey it to ahomeowners' association for the use and benefit of its membership, comprised of the owners ofthe plots of the subdivision, or, if that was not feasible for stated reasons, to dedicate or conveytitle in the dock to the Town of Riverhead. We note that the appellants are presumed to be onnotice of the provisions of the Declaration, which is in their direct chain of title (see FairmontFunding v Stefansky, 301 AD2d 562, 564 [2003]). By deed dated December 21, 1993, and a"correction quitclaim deed" dated December 21, 2004, Nohejl conveyed title to the dock to theAssociation. While Nohejl failed to comply with a provision in the Declaration that purported torequire him to convey title to the dock to a homeowners' association within 60 days after theconveyance of the final parcel in the five-lot subdivision, this failure neither divested him of titleto the dock nor resulted in the retroactive conveyance of the dock to the appellants'predecessors-in-interest in their capacity as owners of the land from which the dock extends. Inthis regard, we also note that no document in the appellants' chain of title expressly refers to thedock, or the conveyance thereof to them as grantees.
Since the documentary evidence submitted by the Association conclusively established that itowned the dock, and that the appellants had no ownership interest therein other than as membersof the Association (insofar as they are members thereof), the Supreme Court properly granted theAssociation's motion to dismiss the cross claim asserted against it pursuant to CPLR 3211 (a) (1).Rivera, J.P., Miller, Angiolillo and Chambers, JJ., concur. [See 2007 NY Slip Op31877(U).]