Yauchler v. SerthYauchler v. Serth
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 launch area and agreed to assume certain responsibilities related to those rights. Plaintiff commenced this action pursuant to
Initially, defendant‘s affirmation dated December 23, 2011 and its attаchments should not be considered on the motions.* It is unclear whether Supreme Court considered these papers as, contrary to statute, the order does not “recite the papers used on the motion[s]” (
Supreme Court erred in dismissing the complaint in its entirety, as questions оf fact exist regarding whether defendant violated certain terms of the deed. Plaintiff claims that defendant materially breached the terms of the deed by: (1) failing to
“[Defendant] will construct a gate and maintain the boat launch at his own cost and expense. There will be a minimum of [$1 million] of insurance on the bоat launch at all times provided by [defendant]. The launch will be closed 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 annually provide the names and phone numbers of all people using the boat launch to [plaintiff], and update it periodicаlly 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 names and phone numbers are provided ahead of timе to [plaintiff]. [Defendant] must show proof of insurance yearly to [plaintiff]. If [defendant] violates any of the terms of this agreement, [defendant] will then forfeit his stewardship of the boat launch. Violations must be determined by a court of competent jurisdiction. [Plaintiff] will have a key or access to the boat launch.”
Defendant submitted his sworn affidavit denying plaintiff‘s allegations. Defendant also submitted a copy of his September 2010 letter to plaintiff, which enclosed a list of people who had keys to the boat launch at the time and proof of insurance coverage from April 2010 through April 2011, as well as the certified mail receipt showing that plaintiff‘s wife signed for the correspondence in October 2010. Although plaintiff contends thаt he was not provided with proof of current insurance, he failed to establish that 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 which this must be accomplished. The record shows that, since 2005, defendant has maintained yearly insurance on the property,
As for plaintiff‘s third allegation, the deed requires that defendant “annually provide the names and phone numbers of all people using the boat launch to [plaintiff].” Defendant did not offer proof that the people who had keys were the only people permitted to use the boat launch. Thus, it is unclear if defendant complied with this term of the deеd, making summary judgment inappropriate as to that allegation.
Regarding plaintiff‘s fourth allegation, that defendant has failed to properly maintain the boat launch, plaintiff avеrred that defendant permitted the property to become strewn with trash. On the other hand, defendant averred that he saw plaintiff‘s relatives dumping trash on the boat launch. In addition tо this factual disagreement, the meaning of the term “maintain” is not precisely defined in the deed and there is a reasonable basis for difference of opinion, namely, whether this tеrm includes removal of garbage. In light of the factual dispute and the ambiguity of this provision in the contract, the related allegation was not ripe for summary judgment (see Pozament Corp. v AES Westover, LLC, 27 AD3d 1000, 1001 [2006]; Besicorp Group v Enowitz, 235 AD2d 761, 763 [1997]).
Plaintiff‘s fifth and primаry contention is that defendant interfered with plaintiff‘s use and quiet enjoyment of his property by replacing plaintiff‘s lock on the boat launch gate with defendant‘s lock and refusing to рrovide plaintiff with a key or the combination to the lock. The parties seem to acknowledge that each has cut off locks placed on the gate by the other party. Although it is not included in the paragraph concerning the boat launch, the deed does contain a covenant of quiet enjoyment. Based on the placement of thаt covenant, it is unclear whether the parties intended that a violation of that term would result in defendant‘s forfeiture of his stewardship of the boat launch. Aside from the ambiguity regarding that term in the deed, defendant argues that since he has stewardship of the boat launch, his lock should be on the gate. Defendant explained that he switched to a combination lock because plaintiff was handing out keys to random people who did not have a right to
Peters, P.J., Stеin and Garry, JJ., concur. Ordered that the judgment is modified, on the law, without costs, by reversing so much thereof as granted defendant‘s cross motion for summary judgment in its entirety; cross motion denied except as to the allegations that defendant breached the agreement by failing to provide proof of insurance and information regarding who had keys to the boat launch gate; and, as so modified, affirmed.