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

1380
CA 13-00642
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND WHALEN, JJ.


IRA HALFOND, ARTHUR T. LYNCH, SANDRA KNOBLOCK,
PAUL J. BULINSKI, JOHN J. GRECO AND DONNA M.
LAWRENCE, ADJACENT UPLAND LAND OWNERS,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

WHITE LAKE SHORES ASSOCIATION, INC.,
DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


GORMAN, WASZKIEWICZ, GORMAN & SCHMITT, UTICA (WILLIAM P. SCHMITT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAW OFFICES OF IRA HALFOND, P.C., CRARYVILLE (IRA HALFOND OF COUNSEL),
PLAINTIFF-RESPONDENT PRO SE, AND FOR ARTHUR T. LYNCH, SANDRA KNOBLOCK,
PAUL J. BULINSKI, JOHN J. GRECO AND DONNA M. LAWRENCE, ADJACENT UPLAND
LAND OWNERS, PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Oneida County
(Bernadette T. Clark, J.), entered July 9, 2012. The order, inter
alia, granted that part of the motion of plaintiffs for an order
adjudging defendant in contempt for violating orders from 1981 and
1982; granted the cross motion of plaintiffs seeking summary judgment
on the complaint and seeking dismissal of the counterclaims; and
denied the cross motion of defendant for summary judgment dismissing
the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying plaintiffs’ motion in its
entirety and vacating the first and second ordering paragraphs, and
denying that part of plaintiffs’ cross motion seeking summary
judgment, and plaintiffs are directed to join as parties Forestville
Fire Fighters, Inc. and Woodgate Volunteer Fire Department, Inc., and
as modified the order is affirmed without costs.

     Memorandum: Defendant owns a parcel of vacant land situated in
Oneida County between White Lake and Route 28 that includes an area
known as Beach A. Plaintiffs own property within a 400-acre tract
adjacent to White Lake. By virtue of certain covenants, restrictions,
and easements running in their favor, plaintiffs enjoy rights of
access to White Lake over Beach A. Plaintiffs commenced the instant
action after defendant erected a structure on Beach A. Plaintiffs
alleged, inter alia, that the structure violates covenants prohibiting
                                 -2-                          1380
                                                         CA 13-00642

the erection or maintenance of a fence without their written consent,
and the obstruction of any established roads or trails without their
permission. Plaintiffs further alleged that the structure violates
their rights of access to White Lake over Beach A. According to
defendant, it erected a gate, not a fence, on Beach A, and it denied
that the gate obstructs any roads or trails or impairs plaintiffs’
rights of access to White Lake.

     In appeal No. 1, defendant appeals from an order that, inter
alia, granted that part of plaintiffs’ motion seeking an order
adjudging defendant in contempt for violating orders from 1981 and
1982 concerning Beach A; granted plaintiffs’ cross motion seeking
summary judgment on the causes of action in the complaint and,
specifically, removal of the structure, and seeking dismissal of
defendant’s counterclaims; and denied defendant’s cross motion seeking
summary judgment dismissing the complaint. In appeal No. 2, defendant
appeals from a judgment awarding attorney fees and expenses to
plaintiffs.

     We reject defendant’s contention in appeal No. 1 that Supreme
Court erred in denying its cross motion inasmuch as we conclude that
defendant failed to establish its entitlement to judgment as a matter
of law (see generally CPLR 3212 [b]). We agree with defendant,
however, that the court erred in granting that part of plaintiffs’
motion seeking an order adjudging defendant in contempt of the 1981
and 1982 orders. We therefore modify the order in appeal No. 1
accordingly. “To succeed on a motion to punish for civil contempt,
the moving party must show that the alleged contemnor violated a clear
and unequivocal court order and that the violation prejudiced a right
of a party to the litigation” (Giano v Ioannou, 41 AD3d 427, 427; see
Judiciary Law § 753 [A] [3]). “Contempt should not be granted unless
the order or judgment allegedly violated is clear and explicit and
unless the act complained of is clearly proscribed” (Aison v Hudson
Riv. Black Riv. Regulating Dist., 54 AD3d 457, 458). Here, neither of
the prior orders contains a clear mandate proscribing the erection of
the structure at issue, and plaintiffs failed to establish that
defendant’s conduct prejudiced their rights (see Ketchum v Edwards,
153 NY 534, 539-540). In view of that determination, we further
conclude that the court erred in granting that part of plaintiffs’
cross motion seeking summary judgment on the third cause of action,
which alleges that defendant is in violation of the 1981 and 1982
orders. We therefore further modify the order in appeal No. 1
accordingly. Inasmuch as the court’s finding of contempt is
erroneous, we conclude that plaintiffs are not entitled to attorney
fees flowing from defendant’s allegedly contemptuous conduct, and we
therefore vacate the judgment in appeal No. 2 awarding such fees (see
Moore v Davidson, 57 AD3d 862, 863).

     We further agree with defendant in appeal No. 1 that the court
erred in granting that part of plaintiffs’ cross motion seeking
summary judgment on the first cause of action, which alleges that
defendant violated the covenants prohibiting erection and maintenance
of a fence and obstruction of established roads or trails, and the
                                 -3-                          1380
                                                         CA 13-00642

second cause of action, which alleges that defendant interfered with
plaintiffs’ rights of access to White Lake. The law favors the free
and unrestricted use of real property, and therefore covenants
restricting such use are strictly construed against those seeking to
enforce them (see Huggins v Castle Estates, 36 NY2d 427, 430; Ludwig v
Chautauqua Shore Improvement Assn., 5 AD3d 1119, 1120, lv denied 3
NY3d 601). Plaintiffs, as the parties seeking to enforce the
covenants at issue, were required to “prove, by clear and convincing
evidence, the scope . . . of the restriction” (Greek Peak v Grodner,
75 NY2d 981, 982). In addition, “where the language used in a
restrictive covenant is equally susceptible of two interpretations,
the less restrictive interpretation must be adopted” (Ludwig, 5 AD3d
at 1120). Viewing the language of the covenants in light of those
rules, we conclude that plaintiffs failed to establish that the
structure erected by defendant violates the covenant prohibiting
erection or maintenance of a fence (see generally Huggins, 36 NY2d at
430; Liebowitz v Forman, 22 AD3d 530, 531). We further conclude that
plaintiffs failed to establish that the structure violates the
covenant prohibiting the obstruction of established trails or roads or
otherwise interferes with plaintiffs’ rights of access to White Lake
(see Sargent v Brunner Housing Corp., 31 AD2d 823, 823-824, affd 27
NY2d 513; Mester v Roman, 25 AD3d 907, 908; see generally Lewis v
Young, 92 NY2d 443, 449-450). Rather, triable issues of fact remain
whether the covenants at issue were intended to prohibit the structure
in question and thus whether defendant violated those covenants (see
Brill v Brill, 108 NY 511, 516; Birch Tree Partners, LLC v Windsor
Digital Studio, LLC, 95 AD3d 1154, 1156; Melrose Waterway v Peacock,
229 AD2d 1000, 1001). We therefore further modify the order in appeal
No. 1 accordingly.

     We agree with defendant with respect to appeal No. 1 that
Forestport Firefighters, Inc. (Forestport) and Woodgate Volunteer Fire
Department, Inc. are necessary parties to this action by virtue of the
easement across Beach A that was granted to Forestport for
firefighting purposes in the 1982 order (see CPLR 1001 [a]; Loree v
Barnes, 59 AD3d 965, 965; Hitchcock v Boyack, 256 AD2d 842, 844). We
therefore further modify the order in appeal No. 1 by directing
plaintiffs to join those parties to this action (see Sorbello v
Birchez Assoc., LLC, 61 AD3d 1225, 1226; Dunkin Donuts of N.Y., Inc. v
Mid-Valley Oil Co., 14 AD3d 590, 592). Finally, we note that
defendant raises no contentions in its brief concerning that part of
the order granting plaintiffs’ cross motion to the extent that it
sought dismissal of the counterclaims, and thus defendant has
abandoned any such contentions (see Ciesinski v Town of Aurora, 202
AD2d 984, 984).




Entered:   February 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
