TURNER, JR. v. Caesar
| Decision Date | 14 February 2002 |
| Citation | 291 A.D.2d 650,737 N.Y.S.2d 426 |
| Parties | JOHN B. TURNER, JR., Appellant, et al., Plaintiff,<BR>v.<BR>DOUGLAS R. CAESAR, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Plaintiff John B. Turner, Jr. and defendant derive title to their real properties on Chenango Lake from a common grantor, Norwich Water Works, as the result of a 1923 deed containing these restrictive covenants: After acquiring his property in 1995 by a deed that reiterated these restrictions, defendant constructed a residence there. In January 1997, this action was commenced seeking a judgment declaring that defendant's year-round use of his property violates the two covenants quoted above and enjoining him from using the property for purposes inconsistent with its use as a summer residence. Following discovery, defendant moved for summary judgment. Finding the terms "summer residence" and "summer homes" to be ambiguous because the summer season can be defined by the calendar, school vacation or warm weather, Supreme Court held the covenants to be unenforceable and granted defendant's motion. The court also found that the equities favored defendant and that plaintiff failed to raise an issue of fact as to defendant's violation of the second covenant. Plaintiff appeals.[*]
The law favors the free and unencumbered use of real property and, to that end, the courts strictly construe restrictive covenants against the party seeking to enforce them (see, Witter v Taggart, 78 NY2d 234, 237). The presence of an ambiguity in a restrictive covenant, however, does not necessarily preclude its enforcement, but rather requires the court to construe the covenant to limit, rather than extend, its restriction (see, Etkin v Hyney, 32 AD2d 704, 704; see also, Freedman v Kittle, 262 AD2d 909, 911; Gitlen v Gallup, 241 AD2d 856, 858; Bear Mtn. Books v Woodbury Common Partners, 232 AD2d 595, 596, lv denied 90 NY2d 808; cf., Silverstein v Shell Oil Co., 40 AD2d 34, 36, affd 33 NY2d 950). Thus, for example, this Court in, Van Schaick v Trustees of Union Coll. (285 AD2d 859), recently interpreted a covenant prohibiting business uses as not excluding an administrative office operated by a not-for-profit college. Contrary to defendant's contention, however, our ruling in that case did not invalidate the covenant but, rather, allowed a specific use not unequivocally prohibited by the language of the covenant (id. at 862).
Here, Supreme Court correctly identified the ambiguity in the first covenant to be the time period intended by the word "summer." In doing so, Supreme Court rejected defendant's suggestion that "summer residences" is also ambiguous in that it could refer to a type of residence as well as a time of use. Since any type or style of structure can be utilized as a summer residence, we agree that the use of the word "summer" refers to the time of residential use. While "summer" can refer to different time periods depending on what months are taken to be the beginning and ending of that season, it surely cannot include the entire year and thus permit year-round residential use. Supreme Court should resolve the issue raised by this temporal ambiguity against plaintiff by construing "summer" to mean the longest period of time that could reasonably be called "summer" considering the lake's location and typical seasonal uses. As a result, Supreme Court erred in declaring the covenants to be unenforceable on that basis.
As to whether defendant violated the second covenant, we hold that Supreme Court...
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