Green Harbour Homeowners' Assoc., Inc. v. G.H. Development and Constr.,

• Decision Date: 27 January 2005
• Docket Number: 95633.
• Citation: 789 N.Y.S.2d 319,14 A.D.3d 963,2005 NY Slip Op 00435
• Parties: GREEN HARBOUR HOMEOWNERS' ASSOCIATION, INC., Appellant, v. G.H. DEVELOPMENT AND CONSTRUCTION, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

14 A.D.3d 963

789 N.Y.S.2d 319

2005 NY Slip Op 00435

GREEN HARBOUR HOMEOWNERS' ASSOCIATION, INC., Appellant, v. G.H. DEVELOPMENT AND CONSTRUCTION, INC., et al., Respondents.

95633.

Appellate Division of the Supreme Court of the State of New York, Third Department.

January 27, 2005.

Appeals (1) from an order of the Supreme Court (Sheridan, J.), entered December 26, 2003 in Warren County, upon a decision of the court in favor of defendants, and (2) from the judgment entered thereon.

KANE, J.

Plaintiff is a homeowners' association created to own and maintain the common property in a residential subdivision in the Town of Lake George, Warren County, and to enforce the subdivision's covenants and restrictions. Defendants are sponsors, cosponsors, or successors-in-interest of cosponsors of the subdivision. Litigation regarding aspects of the subdivision began early in the project's history (see Matter of Black v Summers, 151 AD2d 863 [1989]), and has continued in different forms. Most recently, this Court addressed the parties' summary judgment motions in the instant action (307 AD2d 465 [2003], lv dismissed 100 NY2d 640 [2003]), and a CPLR article 78 proceeding commenced by plaintiff (Matter of Green Harbour Homeowners' Assn. v Town of Lake George Planning Bd., 1 AD3d 744 [2003]).^* Following those decisions, Supreme Court held a lengthy nonjury trial resulting in dismissal of the remaining causes of action. Plaintiff appeals.

A major issue in this matter is ownership of the ill-defined lot 20. Although everyone agrees that plaintiff is the owner of lot 20, no one can agree on the boundary lines of that lot. Two maps, a paper map filed with the town Planning Board on March 28, 1988 and a Mylar map filed in the County Clerk's office the same day, differ as to whether plaintiff owns in fee a strip of land along the shore of the island abutting plaintiff's docks or whether plaintiff has an easement along that strip half way down the island. Plaintiff contends that the Planning Board map is the official map and the County Clerk's Mylar was improperly altered after Planning Board approval but before filing, constituting a fraud on plaintiff.

The record contains conflicting evidence regarding the parties' intentions as to what was to constitute lot 20, and as to how the changes on the County Clerk's Mylar came about. The town's zoning and code enforcement officer could not remember the specific signing of these maps and testified only regarding his normal procedure. While he stated that he would not have approved the configuration on the Mylar because it was unlawful, he later testified that an easement such as the one on the Mylar would not have violated the town's zoning ordinances. The Planning Board chair could not remember any specifics of March 28, 1988, the day on which he signed the Planning Board map and County Clerk's Mylar, except he specifically remembered signing the Mylar and that it did not look the same when he signed it as it did at trial 16 years later. This testimony was weakened by cross-examination, which established that he signed between 21 and 28 maps or Mylars for this subdivision that same day, and he acknowledged that he only gave a cursory review to the maps he signed.

On the other hand, the surveyor testified that he would never alter a Mylar once it had been signed by the Planning Board, doing so would be a crime, he was asked to make revisions to the Mylar because he had misunderstood the boundaries, and he made those revisions represented on the Mylar before it was presented to the Planning Board. The sponsor's president specifically remembered seeing incorrect boundaries on the Mylar and advising the surveyor to correct it before it was submitted to the Planning Board. Considering that numerous maps and Mylars were presented to the Planning Board in haste to meet a filing deadline, it does not strain the imagination to believe that the sponsor mistakenly submitted both the earlier incorrect paper version of the map and the revised Mylar to the Planning Board, along with over 20 other maps and Mylars, and that both were signed and filed in their respective locations. The final environmental impact statement, draft environmental impact statement, subdivision application and notations on other maps all support defendants' position that the Mylar map filed in the County Clerk's office accurately represents what was approved by the Planning Board. We decline to disturb, and give great deference to, Supreme Court's credibility determinations and related factual findings that plaintiff failed to prove that any defendant fraudulently altered the map filed with the County Clerk (see Riggs v Benning, 290 AD2d 716, 717 [2002]; Matter of Roth v S & H Grossinger, 284 AD2d 746, 747 [2001]). As no fraud was proven, the map in the County Clerk's office is the official map providing boundaries for lot 20. Additionally, as plaintiff has not proven fraud, the court properly dismissed plaintiff's cause of action for counsel fees on that basis.

Having found that plaintiff is entitled only to an easement over the dock strip of land up to the boathouse, we now address whether that easement allows vehicular or only pedestrian access. The offering plan contains general language providing each of plaintiff's members "an easement in common with other Members for ingress and egress by vehicle or otherwise, across, over and to all [of plaintiff's] [p]roperty." Another section states that plaintiff "has an easement over the existing roadway leading to the Island and to and from said roadway to the docks located on the Island." A specific section of the offering plan includes a metes and bounds description of the easement. That section provides that the easement "may be exercised only for pedestrian access to docks" on the island and it constitutes a "non-exclusive pedestrian easement." Where a contract, such as the offering plan, employs contradictory language, specific provisions control over general provisions (see Muzak Corp. v Hotel Taft Corp., 1 NY2d 42, 46 [1956]; Matter of Lewiston-Porter Cent. School Dist. v Sobol, 154 AD2d 777, 779 [1989], lv dismissed 75 NY2d 978 [1990]). A contract should be interpreted in a way which reconciles all its provisions, if possible (see Matzen Constr. v Schultz, 257 AD2d 724, 725-726 [1999]).

Following these rules of contract interpretation, plaintiff is entitled to a...