        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

164
CA 13-01123
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PRESERVE HOMEOWNERS’ ASSOCIATION, INC.,
ACTING BY AND THROUGH ITS BOARD OF DIRECTORS,
PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

SONNY Z. ZHAN AND HONG XU, DEFENDANTS-RESPONDENTS.


MICHAEL J. KAWA, SYRACUSE, FOR PLAINTIFF-APPELLANT.

SONNY Z. ZHAN, DEFENDANT-RESPONDENT PRO SE.

HONG XU, DEFENDANT-RESPONDENT PRO SE.


     Appeal from an order of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), entered March 19, 2013. The order denied
the motion of plaintiff for summary judgment, granted the cross motion
of defendants for summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is reversed
on the law without costs, defendants’ cross motion is denied, the
complaint is reinstated and plaintiff’s motion is granted.

     Memorandum: Plaintiff is a not-for-profit corporation comprised
of property owners—including defendants—within The Preserve, a
residential subdivision (subdivision) in the Town of Pompey, Onondaga
County and plaintiff, inter alia, enforces the “Declaration of
Covenants, Conditions and Restrictions for the Preserve”
(Declaration). Plaintiff’s Board of Directors (Board) directed
defendants to remove two chickens from their property because the
presence of the chickens violated a restrictive covenant of the
Declaration, but defendants refused to do so. Plaintiff thereafter
commenced this action seeking a permanent injunction ordering
defendants to remove the chickens. Plaintiff moved for summary
judgment with respect to the relief demanded in the complaint, and
defendants cross-moved for summary judgment dismissing the complaint.
Supreme Court denied the motion and granted the cross motion. We
reverse.

     “It is well settled that, ‘[s]o long as the [B]oard [of directors
of a homeowners’ association] acts for the purposes of the
[homeowners’ association], within the scope of its authority and in
good faith, courts will not substitute their judgment for [that of]
the [B]oard[ ]’ ” (Spaulding Lake Club, Inc. v Haibo Jiang, 78 AD3d
                                 -2-                           164
                                                         CA 13-01123

1668, 1669, quoting Matter of Levandusky v One Fifth Ave. Apt. Corp.,
75 NY2d 530, 538). The Declaration provides that plaintiff’s Board
“shall have the absolute power to prohibit a pet from being kept on
the Properties, including inside residences constructed thereon.”
Here, plaintiff established that its Board was acting for the purposes
of the homeowners’ association and within the scope of its authority
when it directed defendants to remove the chickens from the property.
In addition, there is no evidence that defendants were “ ‘deliberately
single[d] out . . . for harmful treatment’ ” inasmuch as no other
residents of the subdivision had chickens or were in violation of the
applicable restrictive covenant (Spaulding Lake Club, Inc., 78 AD3d at
1669), and defendants otherwise “ ‘failed to present evidence of bad
faith . . . or other misconduct’ ” (id.).

     All concur except SMITH, J.P., and FAHEY, J., who dissent and vote
to affirm in the following Memorandum: This case turns on the issue
whether the Silkie chickens raised by defendants’ daughters can be
considered “normal household pets.” If they are “normal household
pets,” then plaintiff has no basis to seek their removal from
defendants’ property. We conclude that the “Declaration of Covenants,
Conditions and Restrictions for the Preserve” (Declaration) does not
unambiguously empower plaintiff to order the removal of the chickens
from defendants’ property. We would thus affirm the order granting
defendants’ cross motion for summary judgment dismissing the
complaint, and we therefore respectfully dissent.

     “ ‘ “ [T]he law has long favored . . . free and unencumbered use
of real property, and covenants restricting use are strictly construed
against those seeking to enforce them” ’ (Ledda v Chambers, 284 AD2d
690, 691 [2001], quoting Witter v Taggart, 78 NY2d 234, 237 [1991];
see also Greek Peak v Grodner, 155 AD2d 827 [1989], affd 75 NY2d 981
[1990]). Therefore, a party seeking to enforce a restrictive covenant
‘must prove, by clear and convincing evidence, the scope, as well as
the existence, of the restriction’ (Greek Peak, 75 NY2d at 982). ‘The
presence of an ambiguity in a restrictive covenant . . . requires the
court to construe the covenant to limit, rather than extend, its
restriction’ (Turner v Caesar, 291 AD2d 650, 651 [2002]). Moreover,
where the language used in a restrictive covenant is equally
susceptible of two interpretations, the less restrictive
interpretation must be adopted (see Bear Mtn. Books v Woodbury Common
Partners, 232 AD2d 595 [1996], lv denied 90 NY2d 808 [1997]; Sunrise
Plaza Assoc. v International Summit Equities Corp., 152 AD2d 561
[1989], lv denied 75 NY2d 703 [1990])” (Ludwig v Chautauqua Shores
Improvement Assn., 5 AD3d 1119, 1120, lv denied 3 NY3d 601; see Erie
Otto Corp. v Inland Southeast Thompson Monticello, LLC, 91 AD3d 1155,
1156, lv denied 19 NY3d 802).

     Here, the relevant restrictive covenant states in its entirety
that “[n]o animals, livestock, or poultry of any kind shall be raised,
bred, or kept on the Properties, except that no more than a total of
two (2) dogs, cats, or other normal household pets may be kept in
residences subject to rules and regulations adopted by [plaintiff]
through its Board of Directors, provided that such pets are not kept,
bred, or maintained for any commercial purpose and provided that pet
                                 -3-                           164
                                                         CA 13-01123

waste shall be removed from the Lot and/or the Common Area by the
owner of such pet. The Board shall have the absolute power to
prohibit a pet from being kept on the Properties, including inside
residences constructed thereon.”

     There is no dispute that, subject to the limitations of the
restrictive covenant, up to two household pets may be kept on each
property encumbered by the restrictive covenant. Affording the least
restrictive interpretation of the phrase “normal household pets,” we
conclude that there is no evidence in the record that chickens are not
“normal household pets” within the meaning of the restrictive
covenant.

     The issue is whether that part of the restrictive covenant
declaring that plaintiff’s Board of Directors (hereafter, Board) has
“absolute power to prohibit a pet from being kept on the Properties”
applies to the “two . . . dogs, cats or other normal household pets”
permitted by the covenant, or whether such power applies only to pets
outside the two “dog[], cat[] or other normal household pet[]” limit.
In our view, the restrictive covenant is unclear as to the scope of
power of the Board, i.e., the restrictive covenant does not specify
whether the Board is empowered to prohibit only a pet or pets beyond
the two-pet limit, or whether the Board can prohibit the keeping of
any pet on defendants’ property. Indeed, under plaintiff’s
interpretation of the restrictive covenant, the Board’s power to
determine the pets not permitted on defendants’ property would be so
broad as to allow the Board to regulate and to discriminate by breed,
mix, color or gender, and we decline to read the restrictive covenant
to permit such selectivity and disparate treatment. Under plaintiff’s
interpretation, any animal of which the Board disapproves can be
prohibited regardless whether it is a “normal household pet.”
Apparently, without offering any rationale, the Board is free to
determine “absolute[ly]” what constitutes a “normal household pet.”
In our view, the restrictive covenant is ambiguous under any fair
reading and, thus, the ambiguity must be resolved against plaintiff,
i.e., the party seeking to enforce it (see Ludwig, 5 AD3d at 1120).
We would therefore affirm the order granting defendants’ cross motion
for summary judgment dismissing the complaint.




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
