| Yauchler v Serth |
| 2014 NY Slip Op 01233 [114 AD3d 1069] |
| February 20, 2014 |
| Appellate Division, Third Department |
| Gene Yauchler, Appellant, v Joseph Serth,Respondent. |
—[*1] Joseph Serth, Pattersonville, respondent pro se.
McCarthy, J. Appeal from a judgment of the Supreme Court (Reilly Jr., J), enteredAugust 2, 2012 in Schenectady County, which, among other things, granted defendant'scross motion for summary judgment dismissing the complaint.
In October 2005, defendant sold plaintiff a parcel of lakefront property. In the deed,defendant reserved to himself certain rights to the use and "stewardship" of a boat launcharea and agreed to assume certain responsibilities related to those rights. Plaintiffcommenced this action pursuant to RPAPL article 15 seeking a declaration thatdefendant had forfeited his rights as to the boat launch area by failing to fulfill hisobligations under the deed. Plaintiff moved for summary judgment and defendantcross-moved for summary judgment dismissing the complaint. Supreme Court deniedplaintiff's motion and granted defendant's cross motion. Plaintiff appeals.
Initially, defendant's affirmation dated December 23, 2011 and its attachmentsshould not be considered on the motions.[FN*]It is unclear whether Supreme Court considered these papers as, contrary to statute, theorder does not "recite the papers used on the motion[s]" (CPLR 2219[*2][a]). In any event, defendant could not validly submit anunsworn affirmation, as he is a party to this action and is not an attorney (seeCPLR 2106). The annexed documents are not certified (see CPLR 2105; seealso CPLR 5532) and, as we cannot rely on defendant's affirmation, they lackcontext and foundation. Accordingly, we will not consider any of the materials containedin the supplemental record, as none of them was properly before Supreme Court (seeMatter of Theodore LL. v Phelan, 254 AD2d 605, 605 n 2 [1998]).
Supreme Court erred in dismissing the complaint in its entirety, as questions of factexist regarding whether defendant violated certain terms of the deed. Plaintiff claims thatdefendant materially breached the terms of the deed by: (1) failing to provide proof ofadequate insurance on the boat launch; (2) failing within the year precedingcommencement of the instant action to notify plaintiff of the names of all persons whopossess keys to the boat launch gate; (3) failing within the year precedingcommencement of the action to supply plaintiff with the names and telephone numbersof all persons whom defendant has allowed to access the lake via the boat launch; (4)failing to properly maintain the boat launch, causing or permitting it to become strewnwith trash; and (5) wrongfully interfering with plaintiff's use and quiet enjoyment of hisproperty by changing the lock on the boat launch gate and refusing to supply plaintiffwith a key or combination to the lock. In support of his motion for summary judgment,plaintiff submitted, among other things, his sworn affidavit and verified complaintalleging the aforementioned violations of the deed, and a copy of the deed, whichprovides, in pertinent part, that: "[Defendant] will construct a gate and maintain the boatlaunch at his own cost and expense. There will be a minimum of [$1 million] ofinsurance on the boat launch at all times provided by [defendant]. The launch will beclosed to the public at all times except for the persons who are residents of Mariaville.They can get a key with a signed blue tag from [defendant]. [Defendant] will annuallyprovide the names and phone numbers of all people using the boat launch to [plaintiff],and update it periodically every time five (5) individuals are added to the list of users.[Defendant] will be allowed 3 non-residents to use the boat launch only if their namesand phone numbers are provided ahead of time to [plaintiff]. [Defendant] must showproof of insurance yearly to [plaintiff]. If [defendant] violates any of the terms of thisagreement, [defendant] will then forfeit his stewardship of the boat launch. Violationsmust be determined by a court of competent jurisdiction. [Plaintiff] will have a key oraccess to the boat launch."
Defendant submitted his sworn affidavit denying plaintiff's allegations. Defendantalso submitted a copy of his September 2010 letter to plaintiff, which enclosed a list ofpeople who had keys to the boat launch at the time and proof of insurance coverage fromApril 2010 through April 2011, as well as the certified mail receipt showing thatplaintiff's wife signed for the correspondence in October 2010. Although plaintiffcontends that he was not provided with proof of current insurance, he failed to establishthat defendant was in breach of the terms of the deed, which only requires defendant to"show proof of insurance yearly" to plaintiff, without specification as to a date by whichthis must be accomplished. The record shows that, since 2005, defendant has maintainedyearly insurance on the property, with plaintiff listed as a certificate holder on the policy,and has provided plaintiff with proof of such insurance by letter at least once each year.The letters also included lists of people who had keys to the boat launch at the time.Based upon this evidence, defendant established his entitlement to summary judgment asto plaintiff's first two allegations and plaintiff failed to offer any evidence sufficient torequire a trial of any issue of fact as to these two claimed breaches of the deed (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]).
As for plaintiff's third allegation, the deed requires that defendant "annually providethe [*3]names and phone numbers of all people using theboat launch to [plaintiff]." Defendant did not offer proof that the people who had keyswere the only people permitted to use the boat launch. Thus, it is unclear if defendantcomplied with this term of the deed, making summary judgment inappropriate as to thatallegation.
Regarding plaintiff's fourth allegation, that defendant has failed to properly maintainthe boat launch, plaintiff averred that defendant permitted the property to become strewnwith trash. On the other hand, defendant averred that he saw plaintiff's relatives dumpingtrash on the boat launch. In addition to this factual disagreement, the meaning of the term"maintain" is not precisely defined in the deed and there is a reasonable basis fordifference of opinion, namely, whether this term includes removal of garbage. In light ofthe factual dispute and the ambiguity of this provision in the contract, the relatedallegation was not ripe for summary judgment (see Pozament Corp. v AES Westover, LLC, 27 AD3d1000, 1001 [2006]; Besicorp Group v Enowitz, 235 AD2d 761, 763 [1997]).
Plaintiff's fifth and primary contention is that defendant interfered with plaintiff's useand quiet enjoyment of his property by replacing plaintiff's lock on the boat launch gatewith defendant's lock and refusing to provide plaintiff with a key or the combination tothe lock. The parties seem to acknowledge that each has cut off locks placed on the gateby the other party. Although it is not included in the paragraph concerning the boatlaunch, the deed does contain a covenant of quiet enjoyment. Based on the placement ofthat covenant, it is unclear whether the parties intended that a violation of that termwould result in defendant's forfeiture of his stewardship of the boat launch. Aside fromthe ambiguity regarding that term in the deed, defendant argues that since he hasstewardship of the boat launch, his lock should be on the gate. Defendant explained thathe switched to a combination lock because plaintiff was handing out keys to randompeople who did not have a right to use the boat launch; defendant agreed to give plaintiffthe combination whenever requested, but defendant planned to replace the lock everytime he gave the combination to plaintiff. The heart of the matter appears to be the levelof access that plaintiff should have to the boat launch and whether plaintiff should haveunfettered access or should have to request access from defendant each time he wants touse the boat launch that is on plaintiff's own property. While the deed provides thatdefendant will manage third-party access to the boat launch, the parties did not define theterm "stewardship" in the deed nor did they indicate the level of control that this rightgranted to defendant— i.e., whether the deed granted defendant control that issuperior to that of plaintiff. Summary judgment would be premature, as evidenceregarding the parties' intent is needed to resolve these ambiguities regarding materialterms in the deed (see Besicorp Group v Enowitz, 235 AD2d at 763;Collegetown of Ithaca v Friedman, 110 AD2d 955, 956 [1985]).
Peters, P.J., Stein and Garry, JJ., concur. Ordered that the judgment is modified, onthe law, without costs, by reversing so much thereof as granted defendant's cross motionfor summary judgment in its entirety; cross motion denied except as to the allegationsthat defendant breached the agreement by failing to provide proof of insurance andinformation regarding who had keys to the boat launch gate; and, as so modified,affirmed.
Footnote *: This Court granteddefendant's motion to include these documents as part of the record on appeal, butpermitted argument and reserved decision on whether these papers should have beenaccepted by Supreme Court (2013 NY Slip Op 83876[U]).