                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 8, 2015                   519001
________________________________

In the Matter of PETER JASINSKI
   et al.,
                    Respondents-
                    Appellants,
      v                                     MEMORANDUM AND ORDER

HUDSON POINTE HOMEOWNERS
   ASSOCIATION, INC., et al.,
                    Appellants-
                    Respondents.
________________________________


Calendar Date:   November 13, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Egan Jr., JJ.

                             __________


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

      Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Leah
Everhart of counsel), for respondents-appellants.

                             __________


Peters, P.J.

      Cross appeals from a judgment of the Supreme Court (Muller,
J.), entered August 28, 2013 in Warren County, which, in a
combined proceeding pursuant to CPLR article 78 and action for
declaratory judgment, among other things, partially granted
petitioners' motion for partial summary judgment.

      In 1999, petitioners purchased a home in a planned unit
development in the Town of Queensbury, Warren County and, in
doing so, became members of respondent Hudson Point Homeowners
Association, Inc. (hereinafter the HPHA). Prior to petitioners'
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purchase, Hudson Pointe, Inc., one of HPHA's cosponsors, had
transferred to the Town land upon which the development's roads
were constructed. The transferred property included a strip of
land approximately 11 feet wide on either side of Hudson Pointe
Boulevard, which borders petitioners' property.

      Commencing in 2004, petitioners displayed a single
political sign on this strip of Town land for part of each year.
In 2008, HPHA, through its Board of Directors, notified
petitioners that such sign violated its Declaration of Protective
Covenants, Conditions, Restrictions, Easements, Charges and Liens
and that it must be removed. When petitioners refused to comply,
the Board established a $5 per day fine against homeowners who
violated the Declaration's sign restriction and enforced this
sanction against petitioners. Thereafter, in July 2012, the
Board filed a $1,070 lien against petitioners' property, based
largely on unpaid sign fees.

      In response, petitioners commenced this combined proceeding
pursuant to CPLR article 78 and action for declaratory judgment
seeking, among other things, a declaration that HPHA and
respondent members of the Board are without authority to ban
their display of political signs, a judgment that respondents
acted arbitrarily and capriciously by filing a lien against
petitioners' property and an injunction permanently restraining
respondents from enforcing or foreclosing on the lien. Following
joinder of issue, petitioners moved for summary judgment,
respondents cross-moved for summary judgment and Supreme Court,
among other things, partially granted petitioners' motion as to
their first cause of action, finding that the Declaration did not
give respondents the authority to ban political signs. The court
also partially granted respondents' cross motion by dismissing
that part of petitioners' first cause of action that sought a
declaration that the sign restriction does not apply on Town
property. Respondents appeal and petitioners cross-appeal, each
challenging those parts of Supreme Court's judgment that are
adverse to their respective interests.

      Respondents contend that, although Hudson Pointe, Inc.
dedicated land to the Town for the purpose of maintaining the
roads within the development, such dedication was subject to the
                              -3-                519001

restrictive covenants contained in HPHA's Declaration. Thus,
according to respondents, although petitioners' political signs
were located on Town property, HPHA maintained the authority to
enforce its sign restriction on this public land. Generally, the
process of dedication is "of the nature of a gift by a private
owner to the public" (Romanoff v Village of Scarsdale, 50 AD3d
763, 764 [2008] [internal quotation marks and citations omitted];
accord Town of Lake George v Landry, 96 AD3d 1220, 1221 [2012]),
and dedication requires, among other things, "absolute
relinquishment to public use by the owner" (Matter of Desotelle v
Town Bd. of Town of Schuyler Falls, 301 AD2d 1003, 1003 [2003]).
Thus, a town may acquire a road in fee through dedication "when
there has been a complete surrender to public use of the land by
the owners, acceptance by the town, and some formal act [by
public authorities] adopting the highway . . . coupled with a
showing that the road was kept in repair or taken in charge by
public authorities" (Perlmutter v Four Star Dev. Assoc., 38 AD3d
1139, 1140 [2007] [internal quotation marks and citations
omitted]; see Highway Law § 171; Town of Lake George v Landry, 96
AD3d at 1221).

      While the record is devoid of evidence of the Town's
acceptance of ownership of the roads within the development, the
parties do not dispute that the land in question is owned by the
Town through dedication. The 1997 deed conveying certain
property within the development from Hudson Pointe, Inc. to the
Town, contained in the record, does not explicitly reserve to
HPHA or Hudson Pointe, Inc. any interest in the conveyed
property. In the absence of such reservation, respondents lack
the authority to enforce HPHA's sign restriction on Town land as
a matter of law (see Romanoff v Village of Scarsdale, 50 AD3d at
764; see also Grullon v City of New York, 297 AD2d 261, 263-264
[2002]; Coleman v Village of Head of Harbor, 163 AD2d 456, 457-
458 [1990], lv denied 76 NY2d 712 [1990]). Thus, respondents had
no authority to fine petitioners, nor to file a lien against
petitioners' property.

     Lahtinen, Garry, Rose and Egan Jr., JJ., concur.
                              -4-                  519001

      ORDERED that the judgment is modified, on the law, without
costs, by reversing so much thereof as partially granted
respondents' cross motion and partially denied petitioners'
motion as to the first cause of action seeking a declaration that
respondents' sign restriction does not apply to property of the
Town of Queensbury, Warren County; cross motion denied to that
extent, motion granted to that extent, partial summary judgment
awarded to petitioners on that part of the first cause of action,
it is declared that respondents' sign restriction does not apply
to Town property, respondents are enjoined from enforcing the
lien on Town property and said lien is vacated; and, as so
modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
