Motion by defendants/third-party plaintiffs (hereinafter defendants) for summary judgment on the first and third counterclaims in the answer. Plaintiff West Mountain Assets LLC (WMA) and defendants (hereinafter, collectively, “the parties”) are owners of parcels in a subdivision in the Town of Queensbury, Warren County, New York, that is known as Northwest Village, Section Two. Specifically, the parties own neighboring parcels, each of which is developed with a single-family residence, and each of which abuts a third parcel on which is situated a road that services the properties (hereinafter, “the road parcel”), of which the parties share ownership in cotenancy. The gravel surface of the road runs generally down the center of the roughly rectangular road parcel but does not occupy the full width thereof. The ends of defendants’ horseshoe-shaped blacktop driveway extend beyond the deeded bounds of their property onto the road parcel and intersect the gravel roadway. The unpaved portion of the road parcel lying between and immediately to either side of defendants’ blacktop driveway is occupied by defendants. The parties’ titles to these parcels descended from a common grantor, who, when establishing the subdivision, burdened them with restrictions that run with the lands, both in the deeds by which they were first conveyed and in a Declaration of Restrictions. These restrictions appear in all subsequent deeds to the parcels, including those conveying the respective interests of the parties’ herein. The restrictions require, among other things, that the properties “shall be used only for single family residential purposes” and shall not be used for commercial activity or any “noxious, dangerous, offensive or unduly noisy activity of any nature” (hereinafter, “nuisance behavior”). WMA’s use of its parcel, however, involves ongoing, short-term rentals of its property that appear to range in duration from a weekend to a couple of weeks. The main issue presented on this motion is whether such use is consistent with the restriction to use only for single-family residential purposes. Defendants also assert that the tenants in the short-term rentals have engaged in various nuisance behaviors, in violation of the restrictions. That said, WMA commenced this action largely in response to issues that are not raised in this motion. It alleges that defendants have interfered with its use of the gravel road; interfered with its tenants’ free use of its property, including the roadway and surrounding lands on the road parcel; improperly installed a drainage pipe on the roadway; and defamed it. WMA’s complaint asserted four causes of action, one for each of the foregoing. The third cause of action, for defamation, was dismissed on defendants’ pre-answer motion, without WMA’s opposition, by order of this court entered December 21, 2020. Thereafter, defendants answered, asserting three counterclaims — the first for a declaration that WMA’s use of its property for ongoing short-term rentals to transient tenants, and the attendant conduct of its tenants, violates the restrictions noted above, and an injunction against WMA’s continued use of the property for same; the second sounding in trespass and private nuisance, alleging that WMA redirected stormwater runoff onto defendants’ property, causing damage; and the third claiming adverse possession of the portion of the road parcel that defendants occupy, namely, the ends of their blacktop driveway that extend onto the road parcel, and the unpaved portions of the road parcel that lie between and immediately to either side of defendants’ blacktop driveway (hereinafter, “the disputed area”). Defendants also commenced a third-party action against third-party defendant Jonathan Szemansco, WMA’s principal, in which they seek to pierce the corporate veil as to any damages awarded to them under the counterclaims in the answer. Defendants now move for summary judgment establishing the claims in the first and third counterclaims in the answer only. Neither the remaining causes of action in WMA’s complaint, the cause of action in the third-party complaint, nor the second counterclaim in the answer is at issue herein. The parties have asserted, and the court agrees, that the foregoing facts are not in question and the discrete issues presented on the motion are thus ripe for summary disposition. Accordingly, upon consideration of the affirmation of Michael Crowe, Esq., dated July 28, 2022, with exhibits; the affidavit of James H. Dobkowski, sworn to July 28, 2022, with exhibits; the affirmation of Peter R. Gray, M.D., dated July 28, 2022; defendants’ statement of material facts dated July 28, 2022, with exhibits; the affidavit of Malcolm B. O’Hara, Esq. in opposition to the motion, sworn to August 25, 2022, with exhibit; the affidavit of Jonathan Szemansco, sworn to August 25, 2022; WMA’s statement of material facts, filed August 25, 2022, with exhibits; the reply affirmation of Michael Crowe, Esq., dated August 31, 2022; WMA’s response to defendants’ statement of material facts, filed September 22, 2022; and the surreply affirmation of Michael Crowe, Esq., dated October 7, 2022; oral argument having been held on October 27, 2022; and the court having considered the parties’ joint, post-oral-argument submission of a full-sized survey of A portion of Northwest Village, Section Two, decision is hereby rendered as follows. On a motion for summary judgment, the movant bears the initial burden to demonstrate entitlement to judgment as a matter of law (see Dibartolomeo v. St. Peter’s Hosp. of City of Albany, 73 AD3d 1326, 1326 [3d Dept 2010]). If this burden is met, the burden shifts to the opponent of the motion to demonstrate that a triable issue of fact exists (see id.). The court has the authority to search the record and grant summary judgment to a nonmoving party (see Digesare Mech., Inc. v. U.W.Marx, Inc., 176 AD3d 1449, 1455 [3d Dept 2019]). Turning first to whether WMA’s use of its property violates the use restrictions that run with the land, it must first be noted that certain of the restrictions that pertain to permissible signage on the properties specifically permit “for rent” signs and it is, thus, specifically contemplated that an owner is permitted to rent out its property. Defendant’s argument here, however, is not against the right to rent, per se, but against the right to rent on ongoing, short-term, repetitive bases to transient, vacationing tenants. As to that question, the parties assert, and the court’s research confirms, a dearth of authority in New York State on the construction to be given to the phrase “single family residential purposes” when such appears in a deed covenant or restrictive declaration affecting property. The parties have focused on the distinction between residential and commercial uses. WMA advances the general maxim that “‘[t]he law favors free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them,’” and presents a case from Wisconsin in which a deed covenant similar to the one at issue here was construed to allow short-term rentals as a noncommercial use (Kumar v. Franco, 211 AD3d 1437, 1439 [3d Dept 2022], quoting Ernie Otto Corp. v. Inland Southeast Thompson Monticello, LLC, 91 AD3d 1155, 1156 [3d Dept 2012] [internal quotation marks, brackets and citations omitted], lv denied 19 NY3d 802 [2012]; see Forsee v. Neuschwander, 381 Wis 2d 757, 769, 914 NW2d 643, 649 [2018]). This, however, does not determine the issue since, even if short-term rentals are not commercial, they are still not necessarily single-family residential uses. In that regard, defendants urge analogy to the construction given to the term “residence” in other contexts, such as those involving a person’s entitlement to government benefits, applications for licensure, or proper polling place for voting, arguing that WMA’s transient tenants can never establish residency in WMA’s property and their uses cannot, therefore, be considered residential, but this is not entirely compelling either. Put simply, the determination of a person’s residency is distinct from what may constitute a residential use of a property, whether used by a person who has established residency in the property or not. And, as WMA observes, the activities undertaken at its property by its tenants are all quintessentially residential — e.g., cooking, bathing, sleeping and recreating. As such, in the court’s view, the resolution of this dispute does not lie in any construction of the terms “residential” or “commercial,” but in the construction of the term “single-family” as used in the covenant. The court is guided in this matter by the Court of Appeals decision in White Plains v. Ferraioli (34 NY2d 300, 304-306 [1974]), rendered in the context of a restrictive zoning ordinance and, therefore, in the court’s view, an analogous context (see id. at 305 [like a restrictive covenant in a deed, "[z]oning is intended to control types of housing and living.”]). In that case, the Court held that a single-family use is one that “bears the generic character of a family unit as a relatively permanent household” (id. at 306). Transient living, the Court held, falls outside the scope of a single-family residential use (see id. at 304-306; Matter of Northwood Sch., Inc. v. Joint Zoning Bd. of Appeals for the Town of N. Elba & Vil. of Lake Placid, 171 AD3d 1292, 1294 [3d Dept 2019]). Upon this legal determination, the court finds that defendants have carried their initial burden to establish entitlement to judgment as a matter of law by their showing that WMA uses the property for transient, short-term rentals.1 There being no question of fact that such is how WMA uses the property, defendants are entitled to summary judgment on their first counterclaim. Turning to defendants’ adverse possession claim, the court finds that they have failed to carry their initial burden to establish their entitlement to judgment as a matter of law. “To establish a claim of adverse possession, the occupation of the property must be[,] [among other things,] hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party)” for the duration of the 10-year prescriptive period (Estate of Becker v. Murtagh, 19 NY3d 75, 81 [2012]). Where, as here, property is held by tenants in common, one “cotentant’s possession [of the property is presumed to be] by and for the benefit of all other cotenants” (Myers v. Bartholomew, 91 NY2d 630, 632-633 [1998]). Thus, for one cotentant’s possession to be adverse or hostile to another requires the ouster of the other, which may be express or implied (see id. at 633). There is no allegation that an express ouster — which generally requires that the ousting cotenant communicate its “intention to exclude or deny the rights of the [other] cotenants — has taken place here (id.). However, per RPAPL 541, an ouster may be implied by 10 years of “continuous exclusive occupancy,” after which the “occupying tenant may then commence to hold adversely” to other cotenants (see Myers, 91 NY2d at 632-637). Defendants have established exclusive possession of the disputed area — to the extent that the precise bounds of such may be discerned — by their immediate predecessors in title, a husband and wife of the surname Griffin, through the affirmation of WMA’s immediate predecessor in title, Peter R. Gray, M.D. (see Estate of Becker, 19 NY3d at 80-81 ["'Where there has been an actual continued occupation of premises under a claim of title, exclusive of any other right, but not founded upon a written instrument or a judgment or decree, the premises so actually occupied, and no others, are deemed to have been held adversely'" (quoting RPAPL former 521)]; Mentiply v. Foster, 201 AD3d 1051, 1057 [3d Dept 2022]). Dr. Gray establishes that, when he purchased WMA’s parcel in 1992 and at all times until he sold to WMA in 2019, the Griffins and defendants exclusively occupied the disputed area. An implied ouster has thus been established under RPAPL 541. Yet, defendants’ proof that the disputed area was possessed hostilely and under a claim of right for any subsequent 10-year period remains lacking. Defendants have certainly established their own claim of right to the disputed area, but they took title to their property in September 2013. Thus, as of the commencement of this action and, indeed, as of the date of this decision and order, they have not occupied the disputed area under that claim of right for the prescriptive period and can prevail on their claim only if they can tack their own hostile possession to that of their predecessors, the Griffins. They have failed to do this. Dr. Gray affirms that the Griffins always held the disputed area out as “their own private yard” but, even reading this as asserting that the Griffins did so under a claim of right, Dr. Gray is not a competent source of proof as to the Griffins’ state of mind. Defendants’ present no affidavit or deposition testimony from either of the Griffins and, in light of the presumption that the Griffins’ possession of the disputed area was also “by and for the benefit of” Dr. Gray, their occupancy of the disputed area, though exclusive, cannot be held to be under a claim of right in the absence of competent proof establishing same (Myers, 91 NY2d at 633). As such, defendant’s motion for summary judgment on its third counterclaim must fail. Moreover, upon exercise of this court’s authority to search the record and award judgment to a nonmoving party, the court finds it appropriate to dismiss the third counterclaim (see Digesare Mech., Inc., 176 AD3d at 1455). The filing of a note of issue in this case on May 6, 2022 signaled that disclosure was complete and, as noted, the proof before the court fails to establish the Griffins’ reasonable basis to believe that the disputed area belonged to them alone. It thus does not appear that defendants can make out a prima facie case for their adverse possession of the disputed area (see CPLR 3212 [b]; Savage v. Desantis, 56 AD3d 1013, 1013-1014 [3d Dept 2008], lv denied 12 NY3d 709 [2009]). Arguments not specifically addressed herein have been examined and determined to be rendered academic by the holdings herein, or have been considered and rejected. Accordingly, it is hereby ORDERED that defendants’ motion for summary judgment is granted in part and denied in part, as indicated herein; and it is further ORDERED that the first counterclaim in the answer is deemed established and it is hereby declared that plaintiff West Mountain Assets LLC’s use of the parcel that it owns in fee in Northwest Village, Section Two for ongoing, repeated, short-term rentals to transient tenants is in violation of the restrictive covenants in its deed and the declaration of restrictions that burdens the property; and it is further ORDERED that plaintiff West Mountain Assets LLC is enjoined against the continued use of such parcel for ongoing, repeated, short-term rentals to transient tenants; and it is further ORDERED that the third counterclaim in the answer is dismissed, severed and stricken from the answer. The within constitutes the decision and order of this court. The court is uploading the decision and order to the New York State Courts Electronic Filing System (NYSCEF). Such uploading does not constitute service with notice of entry (see 22 NYCRR 202.5-b [h] [2]). Signed this 7th day of March 2023
