| Honeyman Point Beach Assn., Ltd. v Schiff |
| 2009 NY Slip Op 05946 [64 AD3d 681] |
| July 21, 2009 |
| Appellate Division, Second Department |
| Honeyman Point Beach Association, Ltd., et al.,Appellants, v Russell Schiff et al., Respondents. |
—[*1] Irwin S. Izen, Commack, N.Y., for respondents Russell Schiff and Linda Schiff. Warren Bittner, Miami Shores, Fla., and Jacqueline Bittner, Perth Amboy, N.J., respondentspro se (one brief filed).
In an action to recover damages for breach of implied contract and unjust enrichment, theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Suffolk County (Farneti, J.), dated March 7, 2008, as granted those branches of the separatemotions of the defendants Jacqueline Bittner and Warren Bittner and the defendants RussellSchiff and Linda Schiff which were to dismiss the complaint pursuant to CPLR 3211 (a) (1) and(7) insofar as asserted against them, and denied their cross motion for summary judgment on theissue of liability.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
In 1947 the Honeyman Point Subdivision was created and a declaration of covenants andrestrictions (hereinafter the declaration) was filed, which gave the subdivision lot owners theexclusive right to use a private beach. In 2005 some of the lot owners paid to replace a bulkheadin the beach area that had deteriorated over time. An action was commenced against thedefendant lot owners who refused to contribute to the expense of the new bulkhead, alleging thatthe grant of the right to use the beach under the declaration created a "corresponding obligation"to share in the costs of maintaining the beach.
The defendants separately moved, inter alia, to dismiss the complaint for failure to state acause of action, asserting that the declaration provided for the expiration of the right to use thebeach prior to the time they purchased their lots. The plaintiffs cross-moved for summaryjudgment on the issue of liability, asserting that the defendants misconstrued the language in thedeclaration, and that any "covenants" contained therein, including the right to use the beach,were to be deemed automatically renewed by a stated date unless terminated in writing, whichdid not occur. The Supreme Court granted those branches of the defendants' separate motionswhich were to dismiss the complaint insofar as asserted against them and denied the plaintiffs'cross motion for summary judgment on the issue of liability, finding, inter alia, that the right touse the beach expired [*2]pursuant to the terms of thedeclaration, and that any corresponding duty to maintain the beach was thereby extinguishedbefore the bulkhead was replaced in 2005.
On appeal, the plaintiffs have abandoned their claim that the right to use the beach wasautomatically renewed upon the absence of a written termination agreement, and they argue forthe first time that the right to use the beach did not constitute a "covenant" subject to expirationunder the terms of the declaration, but rather an easement that runs with the land and passes tosuccessive lot owners. Contrary to the defendants' contention, this issue may be raised for thefirst time on appeal because it is one of law which appears on the face of the record and couldnot have been avoided if it had been raised at the proper juncture (see Romain v Grant, 60 AD3d838, 839 [2009]; Beepat v James, 303 AD2d 345 [2003]). However, since theplaintiffs interchangeably referred to the right to use the beach as both a "covenant" and"easement" before the lower court, and relied upon the language in the declaration that they nowseek to disavow, they are estopped from raising the new claim, which is inconsistent with theposition taken before the Supreme Court (see Matter of Sbuttoni, 16 AD3d 693, 694 [2005]; Kohilakis vTown of Smithtown, 167 AD2d 513, 514 [1990]). In any event, the language of thedeclaration did not unequivocally establish an intent to create a right in the nature of an easementrather than a revocable license (see Willow Tex v Dimacopoulos, 68 NY2d 963, 965[1986]). Accordingly, the Supreme Court properly granted the defendants' separate motions todismiss the complaint.
The parties' remaining contentions either need not be reached in light of our determination orare without merit. Mastro, J.P., Eng, Belen and Hall, JJ., concur.