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