Jasinski v. Hudson Pointe Homeowners Ass'n, Inc.

• Court: New York Supreme Court
• Writing for the Court: ROBERT J. MULLER, J.
• Citation: Jasinski v. Hudson Pointe Homeowners Ass'n, Inc., 47 Misc.3d 534, 1 N.Y.S.3d 731 (N.Y. Sup. Ct. 2013)
• Decision Date: 26 August 2013
• Parties: Peter JASINSKI and Margaret Jasinski, Plaintiffs/Petitioners, v. HUDSON POINTE HOMEOWNERS ASSOCIATION, INC., Charles "Chuck" Moore, John Kessler, Sandra Barlow, Dawn Thompson, Fred Lefton, John Doe and Jane Doe, Individually and as Members of the Hudson Pointe Homeowners Association Board, reference to "John Doe" and "Jane Doe" being fictitious names intended to denote all current Board Members, Defendants/Respondents.

47 Misc.3d 534

1 N.Y.S.3d 731

Peter JASINSKI and Margaret Jasinski, Plaintiffs/Petitioners,

v.HUDSON POINTE HOMEOWNERS ASSOCIATION, INC., Charles "Chuck" Moore, John Kessler, Sandra Barlow, Dawn Thompson, Fred Lefton, John Doe and Jane Doe, Individually and as Members of the Hudson Pointe Homeowners Association Board, reference to "John Doe" and "Jane Doe" being fictitious names intended to denote all current Board Members, Defendants/Respondents.

Supreme Court, Warren County, New York.

Aug. 26, 2013.

Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah Everhart of counsel), for plaintiffs/petitioners.

Bond, Schoeneck & King, PLLC, Albany (Arthur J. Siegel of counsel), for defendants/respondents.

ROBERT J. MULLER, J.

Plaintiff/petitioner Peter Jasinski and his wife, plaintiff/ petitioner Margaret Jasinski (hereinafter referred to collectively as plaintiffs), own Lot 89 in the Hudson Pointe Planned Unit Development in the Town of Queensbury, Warren County, which Lot is subject to the "Declaration of Protective Covenants, Conditions, Restrictions, Easements, Charges and Liens" (hereinafter Declaration) of defendant/respondent Hudson Pointe Homeowners Association, Inc. (hereinafter the Association). § 9.04(a) of the Declaration states as follows:

"ADVERTISING AND SIGNS:

"Except for signs erected by or with the permission of the Co–Sponsors in connection with the initial marketing of Homes, no additional sign or other advertising device of any nature shall be placed for display to the public view on any Home, in any window of any Home, on any lot or other portion of the Property (including temporary signs advertising Homes for sale or rent by Owners, lessees or realtors) except with the consent of the Board of Directors."

According to plaintiffs, beginning in 2004, they displayed a single political sign during each election season. In 2008, the Hudson Pointe Homeowners Association Board (hereinafter the Board) advised plaintiffs that the sign constituted a violation of § 9.04(a) of the Declaration. Plaintiffs continued with their sign placement during election season and, by correspondence dated May 19, 2010, they were advised that "[t]he Board[, ]in an attempt to stop the political signs that appear during election season[, has] established a five (5) dollar a day sanction for any homeowner who refuses to take down a sign once they receive notification." Then, when plaintiffs again displayed a political sign in October 2010, the Board enforced the $5.00 per day fine against them. After initial attempts to collect this fine, the Board ultimately abandoned its efforts in April 2011, advising plaintiffs as follows: "At this time [the Board] has decided that it would be in everyone's best interests to not pursue any action against [plaintiffs] at this time. This does not in any way constitute relinquishment of their rights." Plaintiffs were further provided with an invoice demonstrating that the fines had been forgiven.

Plaintiffs again displayed a political sign during the 2011 election season and, by correspondence dated November 10, 2011, the Board advised them as follows:

"[T]he Board ... has determined you to be in violation of [§ ] 9.04(a) of the [Declaration] applicable to this [A]ssociation. The board is writing to you with the hope that you will voluntarily come into compliance with the rules of the [A]ssociation. Failure to so comply by November 15, 2011[ ] will lead to a levy of a fee against you of $5.00 per day for violating the rules and regulations of the association and the placement of a lien against your property."

Plaintiffs continued to display the political sign and a fine of $805.00 was imposed. Then, when plaintiffs failed to pay the fine, the Board filed a lien against their property on July 25, 2012 in the amount of $1,070.00, which lien includes the fine as well as $250.00 in attorney's fees and $15.00 in costs. On September 17, 2012, plaintiffs commenced this combined proceeding pursuant to CPLR article 78 and action for a declaratory judgment against the Board, as well as its President, defendant/respondent Charles "Chuck" Moore, and its individual members, defendants/respondents John Kessler, Sandra Barlow, Dawn Thompson, and Fred Lefton (hereinafter collectively referred to as defendants). Plaintiffs seek (1) a declaratory judgment that the Board is without authority to ban plaintiffs from displaying political signs because it has misinterpreted § 9.04(a) of the Declaration and, further, that the land upon which the signs were displayed belongs to the Town of Queensbury (hereinafter the Town); (2) a declaratory judgment that the Board may not lawfully enforce its political sign ban; (3) a judgment pursuant to CPLR article 78 that the Board acted arbitrarily, capriciously and abused its discretion by filing a lien against plaintiffs' property; (4) an award of punitive damages for violating plaintiffs' right to free speech under the U.S. Constitution; and (5) a permanent injunction prohibiting the Board from "assessing any sums against [plaintiffs] for violation of the ... unlawful political sign ban." Issue has been joined with defendants asserting a counterclaim for attorney's fees. Presently before the Court is (1) plaintiffs' motion for partial summary judgment on the first, second, third and fifth causes of action; and (2) defendants' cross motion for summary judgment dismissing the complaint/petition and, further, granting the counterclaim. The motion and cross motion will be considered simultaneously, with each cause of action addressed in seriatim.

With respect to that aspect of the first cause of action seeking a declaratory judgment that the Board is without authority to ban plaintiffs from displaying political signs because it has misinterpreted § 9.04(a) of the Declaration, plaintiffs contend that this section does not apply to political signs. Rather, according to plaintiffs, this section applies only to signs used as advertising devices. Plaintiffs therefore contend that they are entitled to summary judgment as a matter of law. Defendants, on the other hand, contend that this section applies to all signs regardless of purpose. Defendants therefore contend that the Board was entitled to rely upon it in banning the display of political signs and, further, that they are entitled to summary judgment as a matter of law.

Restrictive covenants "must be construed as they read and not be given a construction extending beyond the literal meaning of their terms" ( Ford v. Rifenburg, 94 A.D.3d 1285, 1287, 942 N.Y.S.2d 285 [2012], quoting Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N.Y. 242, 249, 196 N.E. 42 [1935] ). Further, "the law favors ‘free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them’ " ( Van Schaick v. Trustees of Union Coll., 285 A.D.2d 859, 860, 728 N.Y.S.2d 275 [2001], lv. denied 97 N.Y.2d 607, 738 N.Y.S.2d 291, 764 N.E.2d 395 [2001], quoting Witter v. Taggart, 78 N.Y.2d 234, 237, 573 N.Y.S.2d 146, 577 N.E.2d 338 [1991] ; accord Dever v. DeVito, 84 A.D.3d 1539, 1542, 922 N.Y.S.2d 646 [2011], lv. dismissed 18 N.Y.3d 864, 938 N.Y.S.2d 846, 962 N.E.2d 269 [2012] ). It must also be noted that "public policy favors the free and unobstructed use of property where the restrictive covenant is ambiguous" ( Freedman v. Kittle, 262 A.D.2d 909, 911, 693 N.Y.S.2d 651 [1999] ; see Gitlen v. Gallup, 241 A.D.2d 856, 858, 660 N.Y.S.2d 500 [1997] ).

The Court finds that the language of § 9.04(a) of the Declaration "is susceptible of more than one interpretation' " ( Gitlen v. Gallup, 241 A.D.2d at 858, 660 N.Y.S.2d 500, quoting Schweitzer v. Heppner, 212 A.D.2d 835, 838, 622 N.Y.S.2d 142 [1995] ). Specifically, as suggested by plaintiffs, "no additional sign or other advertising device" can be interpreted to mean only signs used as advertising devices. With that said, it can also be interpreted to mean any signs whatsoever, as suggested by defendants. This Court recognizes a distinction between commercial advertisers who seek to generate increased consumption of their products and non-commercial advertisers who seek to advocate an idea. The existence of these two mutually exclusive possibilities is clear evidence of the ambiguity.

"Summary judgment is not limited to those cases where the contract is free from ambiguity and not subject to differing interpretations" ( Gitlen v. Gallup, 241 A.D.2d at 858, 660 N.Y.S.2d 500, quoting Maio v. Gardino, 184 A.D.2d 872, 873, 585 N.Y.S.2d 529 [1992] ). "If there is ambiguity in the terminology used, and the equivocality can be resolved without reference to extrinsic evidence, the issue is to be determined as a question of law for the court" ( Gitlen v. Gallup, 241 A.D.2d at 858, 660 N.Y.S.2d 500, quoting Maio v. Gardino, 184 A.D.2d at 873–874, 585 N.Y.S.2d 529 ). In reviewing the scope of § 9.04(a) of the Declaration, the Court is constrained to an interpretation which would be the least restrictive since restrictive covenants of this kind are contrary to a general public policy promoting the free and unobstructed use of real property (see Freedman v. Kittle, 262 A.D.2d at 911, 693 N.Y.S.2d 651 ; Gitlen v. Gallup, 241 A.D.2d at 858, 660 N.Y.S.2d 500 ). The Court therefore grants plaintiffs' motion for partial summary judgment with respect to that aspect of the first cause of action seeking a declaratory judgment that the Board is without authority to ban plaintiffs from displaying political signs because it has misinterpreted § 9.04(a) of the Declaration.

The Court further denies defendants' cross motion for summary judgment with respect to this aspect of the first cause of action.

With respect to that aspect of the first cause of action seeking a declaratory judgment that the Board is without authority to ban plaintiffs from displaying political signs because the land upon which the signs were displayed belongs to the Town, plaintiffs contend that the...