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.,

RespondentsAppellants,

v MEMORANDUM AND ORDER

HUDSON POINTE HOMEOWNERS

ASSOCIATION, INC., et al.,

AppellantsRespondents.

________________________________

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
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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.
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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