DECISION AND ORDER The facts of this matter are set forth in the prior decision of this Court and will not be repeated at length (69 Misc 3d 1213[A], 2020 NY Slip Op 51311[U] [Sup Ct, Warren County 2020]). As relevant here, defendant — which is owned solely by Glenn Kupsch and his wife, Laura Kupsch — completed the construction of a home at 6 Mayfair Drive in Bolton Landing, Warren County in early 2018/late 2019. This home is located in the Mayfair Resort subdivision on the shores of Lake George, with all homes in the subdivision subject to a Declaration of Covenants, Restrictions, Easements and Assessments dated May 15, 2012 and amended on November 13, 2013 (hereinafter the Declaration). Article II, §2 (N) of the Declaration provides, in pertinent part: “Subletting of Property. [The] right to sublet individual lots shall be limited to one-year rental terms only by written lease to be provided to [plaintiff Mayfair Resort Homeowners] Association[, Inc]. No daily, weekly, or monthly rentals shall be allowed.” Upon the completion of construction, defendant began renting its home on a weekly basis. Mayfair Resort Homeowners Association, Inc. (hereinafter the HOA) — together with plaintiffs Paula Wun and Susan Burke, both members of the HOA who own homes at 12 Mayfair Drive and 7 Mayfair Drive, respectively — then commenced this action in February 2020 seeking, inter alia, a permanent injunction prohibiting defendant from continuing with short-term rentals of its property in violation of Article II, §2 (N) of the Declaration. Plaintiffs simultaneously moved by Order to Show Cause for a preliminary injunction restraining defendant from renting its property on a daily, weekly or monthly basis during the pendency of the action. Defendant appeared in opposition, arguing that Article II, §2 (N) of the Declaration prohibits only daily, weekly, and monthly sublets of the home — not daily, weekly and monthly rentals. The Court was not persuaded by this tenuous interpretation, however, and found that — notwithstanding the Declaration’s use of the term sublet in the title of Article II, §2 (N) — the section clearly states that “[n]o daily, weekly, or monthly rentals shall be allowed.” In this regard, Article X of the Declaration states that “[a]ll captions…are for convenience only and do not in any way limit or amplify the provision[s] hereof.” The motion was thus granted by Order dated June 3, 2020 and entered that same date, with this Order expressly providing “that [d]efendant, its agents and employees, are enjoined and restrained, during the pendency of this action, from offering the [s]ubject [p]roperty for rent for periods of less than one year.” Shortly after the entry of this Order plaintiffs discovered that defendant had rented its home from June 13, 2020 to August 24, 2020, thereafter moving for an Order finding defendant in both civil and criminal contempt. This motion was granted by Decision and Order dated November 4, 2020 and entered that same date, with defendant directed to (1) reimburse plaintiffs for the counsel fees and costs incurred in connection with the motion as and for a punishment for its civil contempt, and (2) pay a fine of $25,200.00 — roughly the same amount received for the rental — to the Warren County Treasurer as and for a punishment for its criminal contempt (2020 NY Slip Op 51311[U], at *8).1 Aside from this extensive motion practice, issue has been joined with defendant asserting a counterclaim against Burke alleging that her home violates Article II, §2 (B) of the Declaration which requires that “[e]ach home shall contain a minimum of 1,600 square feet of living space exclusive of basement and attic areas, garages, porches, patios, or decks.” More specifically, defendant alleges as follows: “The house’s footprint is 24′x 24′ which gives the total sq ft of the 1st level of 576 sq ft. There is a second floor with dormers (so actual size is NOT 24×24), which would bring the house to a max sq ft measurement of 1152 square feet[,] far below the minimum 1,600 square feet required by the Declaration.” Presently before the Court is plaintiffs’ motion for partial summary judgment relative to their request for permanent injunctive relief prohibiting defendant from any daily, weekly or monthly rentals of its property, as well as their request for costs and counsel fees with respect to this action. A party seeking summary judgment must establish its entitlement to judgment as a matter of law by admissible proof (see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967 [1988]; Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has met this initial burden, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of fact (see Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]). At the outset, the Court finds that plaintiffs have amply established their entitlement to partial summary judgment. Insofar as their request for permanent injunctive relief is concerned, plaintiff has submitted a copy of the Declaration together with the affidavit of Wun, whose home is located only one lot away from that of defendant. In her affidavit — which was also submitted in support of plaintiffs’ motion for a preliminary injunction and discussed by the Court in its prior decision — Wun recounts in painstaking detail the many times defendant rented its home on a weekly basis and the problems that arose because of these rentals. Defendant in fact does not dispute having rented its property on a weekly basis, contending — as set forth above — that the Declaration does not prohibit such rentals. Insofar as plaintiffs’ request for costs and attorneys’ fees is concerned, Article VII, §1 of the Declaration provides as follows: “[E]ach person to whose benefit this Declaration insures [sic], including the [HOA], may proceed at law or in equity to prevent the occurrence, continuation or violation of any provision of the Declaration, and the [C]ourt in any such action may award the successful party reasonable expenses in prosecuting such action including attorney’s fees.” The governing document at issue here — namely, the Declaration — is a “contract[], and [the Court's] review and analysis thereof is governed by principles of contract interpretation that are both familiar and well-settled” (Matter of Olszewski v. Cannon Point Assn., Inc., 148 AD3d 1306, 1308 [2017]). “As a starting point, ‘[i]t is axiomatic that a contract is to be construed in accordance with the parties’ intent, which is generally discerned from the four corners of the document itself’” (id. at 1308-1309, quoting Maldonado v. DiBre, 140 AD3d 1501, 1506 [2016] [internal quotation marks and citations omitted], lv denied 28 NY3d 908 [2016]). “‘Consequently, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms’” (Matter of Olszewski v. Cannon Point Assn., Inc., 148 AD3d at 1309, quoting Maldonado v. DiBre, 140 AD3d at 1506; see Beal Sav. Bank v. Sommer, 8 NY3d 318, 324 [2007]; Tompkins Fin. Corp. v. John M. Floyd & Assoc., Inc., 144 AD3d 1252, 1253 [2016]). “Further, ‘the contract must be read as a whole to determine its purpose and intent, and it should be interpreted in a way that reconciles all its provisions, if possible’” (Matter of Olszewski v. Cannon Point Assn., Inc., 148 AD3d at 1309, quoting A. Cappione, Inc. v. Cappione, 119 AD3d 1121, 1122-1123 [2014] [internal quotation marks, brackets and citations omitted]; see Beal Sav. Bank v. Sommer, 8 NY3d at 324-325; Siebel v. McGrady, 170 AD2d 906, 907 [1991], lv denied 78 NY2d 853 [1991]). Here, there is simply no question that the Declaration prohibits daily, weekly and monthly rentals of homes within the subdivision, as well as provides for an award of reasonable expenses and attorney’s fees to the prevailing party in any lawsuit seeking to prevent a violation of the Declaration. The Court further finds that defendant has failed to establish the existence of any genuine issues of fact. In this regard, defendant has submitted only the affirmation of counsel in opposition to the motion which reiterates the very same argument previously rejected by the Court, namely that the Declaration prohibits only daily, weekly and monthly sublets — not rentals. This argument is wholly without merit. A Court “‘may not by construction add or excise terms, nor distort the meaning of those used and thereby make a new contract for the parties under the guise of interpreting the writing’” (Matter of Olszewski v. Cannon Point Assn., Inc., 148 AD3d at 1309, quoting Vermont Teddy Bear Co. v. 538 Madison Realty Co., 1 NY3d 470, 475 [2004] [internal quotation marks and citations omitted]) — which is precisely what defendant is asking the Court to do. Based upon the foregoing, plaintiffs’ motion is granted in its entirety. Counsel for plaintiffs shall submit an affidavit of services — on notice to defendant — within thirty (30) days of the date of this Decision and Order. Although defendant did not submit any opposition to that aspect of the motion seeking counsel fees and costs, it shall nonetheless have fifteen (15) days from receipt of the affidavit of services in which to respond. Counsel for the parties are hereby directed to appear for a status/compliance conference on May 21, 2021 at 10:15 A.M. to discuss the counterclaim as well as the remaining relief requested in the complaint. This conference will be conducted virtually using Microsoft Teams. Therefore, having considered NYSCEF documents 69 through 79, submitted in support of the motion; NYSCEF document 88, submitted in opposition to the motion; and NYSCEF document 89, submitted in further support of the motion, and oral argument having been heard on April 29, 2021 with John D. Wright, Esq. appearing on behalf of plaintiffs and Edward J. Herban, Esq. appearing on behalf of defendant, it is hereby ORDERED that plaintiffs’ motion for partial summary judgment is granted in its entirety; and it is further ORDERED that counsel for plaintiffs shall submit an affidavit of services — on notice to defendant — within thirty (30) days of the date of this Decision and Order, and defendant shall have fifteen (15) days from receipt in which to respond; and it is further ORDERED that counsel for the parties shall appear for a status/compliance conference on May 21, 2021 at 10:15 A.M., with the conference to be conducted virtually using Microsoft Teams. The above constitutes the Decision and Order of the Court. The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiffs is hereby directed to promptly obtain a copy of the e-filed Decision and Order for service with notice of entry upon defendant in accordance with CPLR 5513. Dated: May 4, 2021
