Camperlino v. Town of Manlius Mun. Corp.

• Decision Date: 19 November 2010
• Citation: 78 A.D.3d 1674,911 N.Y.S.2d 755
• Parties: W. James CAMPERLINO, Plaintiff-Appellant, v. TOWN OF MANLIUS MUNICIPAL CORPORATION, Village of Manlius, Defendants-Respondents, Benita Rogers, Frank Heath, Christine Warfield Smith, Evan Scott Smith, Keri Seagraves, David Althoff, Mary Ann Calo, Michael J. Calo, Dr. David Feiglin, Sharon A. Lindberg, Jerome A. Lindberg, Carol Ilacqua, David Samuel, and Troop D Veterans, Inc., Intervenors-Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 755

78 A.D.3d 1674

W. James CAMPERLINO, Plaintiff-Appellant,

v. TOWN OF MANLIUS MUNICIPAL CORPORATION, Village of Manlius, Defendants-Respondents,Benita Rogers, Frank Heath, Christine Warfield Smith, Evan Scott Smith, Keri Seagraves, David Althoff, Mary Ann Calo, Michael J. Calo, Dr. David Feiglin, Sharon A. Lindberg, Jerome A. Lindberg, Carol Ilacqua, David Samuel, and Troop D Veterans, Inc., Intervenors-Defendants-Respondents.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 19, 2010.

Shulman Curtin Grunder & Regan, P.C., Syracuse, D.J. & J.A. Cirando, Esqs. (John A. Cirando of Counsel), for Plaintiff-Appellant.

Harris Beach PLLC, Syracuse (David M. Capriotti of Counsel), for Defendant-Respondent Town of Manlius Municipal Corporation.

Mackenzie Hughes LLP, Syracuse (W. Bradley Hunt of Counsel), for Defendant-Respondent Village of Manlius.

Neil M. Gingold, Fayetteville, for Intervenors-Defendants-Respondents.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND GREEN, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking a declaration that the property he purchased from Allied Chemical Corporation (Allied) located east of Sweet Road in defendant Town of Manlius Municipal Corporation (Town) was not subject to restrictive covenants contained in a 1981 agreement (agreement) between Allied and the Town. That agreement resulted from Allied's application for the creation of a natural resource removal district with respect to property that Allied owned in Lots 84, 85, 95, and 96 in the Town. Allied's property in those four lots consisted of approximately 350 acres located both east and west of Sweet Road.

The Town granted Allied's application for the creation of a natural resource removal district upon the condition that Allied would extend its quarrying operation only into Lots 84 and 95 and that they would create a 500 foot buffer area on the Seneca Turnpike and Sweet Road sides of the excavation area. All of the property in Lot 84 was located west of Sweet Road, as was the excavation area and the 500 foot buffer. In addition, Allied and its successors were not to make any "new or different use" of the "Manlius Lands" after quarrying operations ceased, but they were to leave that property as it was unless they received written approval to do otherwise from the Town Board after a public hearing. The agreement contained restrictive covenants implementing those conditions, and it defined Allied's Manlius Lands in Exhibit A. With the exception of one clause referring to "any other real property located on said Lot 96 in the Town of Manlius, now owned by the parties of the first part" (hereafter, disputed clause), all of the property described in Exhibit A was located west of Sweet Road.

We reject the contention of plaintiff that Supreme Court erred in denying that part of his motion for summary judgment with respect to his property in Lot 96 east of Sweet Road. We note at the outset that the contentions of plaintiff with respect to his motion are not encompassed by the notice of appeal. "Nevertheless, inasmuch as there is no indication on this record that [defendants are] prejudiced by that omission, we exercise our discretion 'to reach beyond' the scope of [the] notice of ... appeal and address the merits of [those] issue[s]" ( Matter of Manufacturers & Traders Trust Co. [Small], 42 A.D.3d 936, 937, 839 N.Y.S.2d 642, quoting McSparron v. McSparron, 87 N.Y.2d 275, 282, 639 N.Y.S.2d 265, 662 N.E.2d 745).In support of the motion, plaintiff submitted extrinsic evidence consisting of an opinion letter from his attorney, an affidavit by the surveyors who created a map of the excavation and buffer areas, the research results of a title insurance company indicating that the disputed clause was contained in the deed transferring the property to Allied's predecessor, and an affidavit of Allied's attorney. Those documents support plaintiff's contention that the parties to the agreement never intended the restrictive covenants to include the property east of Sweet Road. We conclude, however, that the disputed clause references property east of Sweet Road and, despite its confusing reference to "parties of the first part," it is not reasonably susceptible of more than one interpretation with respect to the property it described ( see Thompson v. McQueeney, 56 A.D.3d 1254, 1257, 868 N.Y.S.2d 443; see also Kibler v. Gillard Constr., Inc., 53 A.D.3d 1040, 1042, 863 N.Y.S.2d 306; Jellinick v. Naples & Assoc., 296 A.D.2d 75, 78, 744 N.Y.S.2d 610). Thus, the disputed clause is not ambiguous, and we may not consider plaintiff's...