This action was commenced by the filing of Plaintiffs' Summons with Notice on December 30. 2011and service of Complaint filed on February 13, 2012.

In their Complaint, Plaintiffs seeks to enjoin Defendant from building and constructing a YMCA facility on certain acreage situated in a parcel of the Radisson Community designated as residential. The Complaint also seeks an injunction requiring Defendant to remove any [*2]structures from the parcel including advertisement signage ^[FN1].

Thereafter, Defendant timely interposed an Answer containing the affirmative defenses of failure to state a cause of action; lack of standing by Plaintiffs; statute of limitations; laches and/or estoppel; and, frivolous nature of the Complaint.

Plaintiffs now move for summary judgment pursuant to CPLR §3212 to permanently enjoin Defendant in accordance with RPAPL §2001 (enforcement of restrictive covenants) and CPLR §3001 (declaratory judgement) from erecting the proposed YMCA 98,000 square foot facility at the northwest corner of Drake's Landing and NYS Route 31 in the Radisson Community located in the Town of Lysander, New York, on the basis that certain residential restrictive covenants in the Radisson Declarations and other instruments prohibit this type of construction. Defendant opposes this motion and has cross moved for summary judgment dismissing Plaintiffs' Complaint.

In a motion for summary judgment, the initial burden rests on the moving party to come forth with evidence in admissible form to show entitlement to judgment as a matter of law. The burden next shifts to the non-moving party to likewise come forth with evidence in admissible form to raise factual issues so as to defeat summary judgment. In such motions, the Court must view all evidence so submitted in the light most favorable to the non-moving party. Zuckerman v. City of New York, 49 NY2d 557 (1980).

The cross motion of Defendant is premised on the argument that the restrictive covenants and deed restrictions relied upon by the Plaintiffs do not encumber or prohibit the construction of its proposed YMCA facility. Defendant further contends that any argument of Plaintiffs pertaining to the motive behind a corrected deed or amended contract for the sale of this property immediately proceeding its purchase of the land that is the subject of this proceeding is irrelevant to this lawsuit. Equally irrelevant, according to Defendant, is the intent of Radisson Associates at the time of its purchase of this land pursuant to a Request for Proposal (RFP) and bid award from the Empire State Development Corporation (ESDC) only to build single or multi family residences on the property. Defendants contend that this correction deed and amended contract between ESDC and Radisson Associates merely clarifies the mistaken intent of limiting construction solely to residential dwellings.

Based on the record before the Court, it appears that Plaintiffs have met their initial burden. There is no question that Plaintiffs have standing to commence this action. The Radisson Community in the Town of Lysander is a planned community created by the ESDC. In June of 1975, ESDC filed the Radisson Declarations in the Onondaga County Clerk's Office. The Declaration so filed contains a number of protective covenants, conditions and restrictions including, among others, the General Covenants and the Residential Protective Covenants and Restrictions which pertain not only to the land and its uses that is the subject of this matter, but to all the land situated in the Radisson Community. Undoubtably, this Community was created with a contemplated common plan and scheme of development and any restrictions set forth in the development's Declarations may be enforced by any resident or owner of record of property in the residential section of the Radisson Community. Chambers v. Old Stone Hill Rd. Assoc., 1 NY3d 424 (2004); See also Radisson Declaration, Article XII §4. [*3]

The primary purpose of the Radisson Declaration is to provide a legal mechanism for imposing binding land use and building controls and environmental performance standards on all property within the Radisson Community. The intent of ESDC that these covenants should run with the land is made clear by the language of the Declaration which provides that the Declaration and the covenants, conditions, restrictions and easements contained therein shall run with and bind the property and shall inure to the benefit of and shall be enforced by Developer, the Association, the Committee and the owner of any lot included in the property. Said covenants and restrictions run with the land until December 31, 2013 after which time they are automatically extended and renewed for successive periods of ten years. See Declaration, Article XII §1.

In addition, Article VII §1 of the Declaration provides that no commercial, industrial, community/institutional or mixed use shall be maintained in a residential lot nor shall any non-residential improvement be erected on a residential lot except as permitted under §2. §2 of this Article refers primarily to professional or a home use business.

In November 2004 ESDC issued a Request for Proposal (RFP) concerning the 86+ acre parcel within which Defendant's proposed facility is located. On or about December 14, 2004, Eldan Homes submitted a bid to develop this site and specifically confined its bid proposal to the erection and construction of single family and/or multi-family residential structures. Based on this proposal, Eldan Homes was awarded the bid. This bid contained no mention of any other intent or purpose other than residential construction in accordance with the project description attached to Eldan Homes' bid proposal. Furthermore, in accordance with §9(b) of the RFP which provided that all units were to be constructed in compliance with the Radisson Guidelines for Residential Development which are solely for single or multi-family structures, Eldan's project description called for four lot sizes to accommodate four different home styles and sizes. Over 150 individual lots were shown on its yield plan.

After the award of this bid to Eldan Homes, ESDC and Eldan Homes entered into the contract for the sale of the 86+ acres. This instrument is dated February 17, 2005 and its clear intent is to confine construction on this acreage to single and/or multi-family structures pursuant to the RFP and Eldan Homes' successful bid. Eldan Homes' bid was accepted by the ESDC only for the intended construction of residential structures and nothing else. Both the original contract of sale of this acreage from ESDC to Eldan Homes and the "amended" contract between ESDC and Eldan Homes' "assignee" Radisson Associates state in the "Whereas" clause that the intended purpose of the sale and purchase is for residential development. §9 of both contracts limits and confines this residential development to single or multi-family structures.

Thereafter, things seem to get "creative". After the execution of the contract, there does not appear to be any evidence of the holding of the Public Hearing prior to the closing of the transaction as required by §6256(1)(c) of the NYS Urban Development Corporation Act of 1968 (formerly §6). Nor does there appear any evidence of the assignment or approval of assignment of this contract from Eldan Homes to Radisson Associates as required by §12 of the contract. In response to a request by the Court, Defendant's attorneys advised that the ESDC could provide no such documentation showing compliance with either requirement.

Despite the bid being awarded to Eldan Homes, the property was conveyed by ESDC to Radisson Associates. This instrument was dated July 28, 2005 and recorded in the Onondaga [*4]County Clerk's Office on July 29, 2005. This deed unequivocally limited development on the 86+ acre parcel to the development of single and/or multi-family residences.

Things get even more "creative" after Radisson Associates and Defendant enter into a contract to purchase 22 of the 86+ acres for a price in excess of $650,000. It is noted that the same principal of Eldan Homes and Radisson Associates was also a member of the board of directors of the North Area YMCA, an affiliate of Defendant. Thereafter, ESDC and Radisson Associates amended the original contract for the sale of the 86+ acres which instrument contains the same provisions as the previous agreement between ESDC and Eldan Homes. However, a "correction" deed is executed by ESDC on May 22, 2005 wherein it is recited that the purpose of this instrument is to correct a mistake that made it appear that ESDC intended to limit the development of the property to single or multi-family residential construction. Conveniently, this "correction" deed omitted any reference to residential units as contained in the original deed. Interestingly, this "correction" deed was filed one day before Radisson Associates sold Defendant the subject property.

Plaintiffs maintain that this "correction" deed was not intended to correct a mistaken impression of the true intent of ESDC, but rather an attempt to extinguish and/or circumvent the restrictions initially imposed when it sold the entire parcel to Eldan Homes. The Court must agree that there was no mistake as to the initial intent of ESDC and Eldan Homes to restrict the development of the entire 86+ acres to residential structures. This "correction" deed was an outright manipulation to remove the binding restrictions.

The intent of ESDC in awarding the bid to Eldan Homes was residential construction as evidenced by the contents of Eldan Homes' winning bid. Such construction was what was contracted for and that intent was properly memorialized in the original deed. The intent of ESDC and Eldan Homes was clear and unambiguous according to Plaintiffs, and those parties attempted to masquerade this intent when the Defendant entered the picture to purchase the subject 22 acres for a substantial purchase price.

The burden next shifts to Defendant. Even when the Court views the record and evidence submitted in the light most favorable to it, Defendant cannot meet its shifting burden to defeat summary judgment. Likewise, it cannot meet its initial burden of proof on its cross motion for summary judgment

The Affirmations and Affidavit submitted in opposition to Plaintiff's motion and in support of its cross motion serve only to support Plaintiff's motion. The Affirmations of Sidd and Germain and the Affidavit of Barnaba all conclusively attest that the deed from ESDC to Eldan Homes contained restrictions as to the type of construction that was intended on the 86+ acre parcel sold to Eldan Homes pursuant to the specific terms of its winning bid. That is, construction of four styles of single or multi-family dwellings throughout on the entire 86+ acres.

These Affirmations and Affidavit do not establish any mistake by ESDC or Eldan Homes to only limit development to residential construction and thereby confirm notice of said restrictions to Defendant. As such, these documents along with the purported "correction" deed do not extinguish or terminate the restrictions and covenants contained in the original deed of July 28, 2005. Witter v. Taggart, 78 NY2d 234 (1991).

A Court will only look outside the four corners of a deed to establish the intent of the parties when that instrument is found to be ambiguous. Pepe v. Antlers of Raquette Lake, Inc., [*5]87 AD3d 785 (3d Dept. 2011); W. James Camperlino v. Town of Manlius Municipal Corporation, 78 AD3d 1674 (4th Dept. 2010) lv dismissed 17 NY3d 734 (2011). Clearly, Defendant had notice of the restrictions as its attorneys attempted to have them removed by the "correction" deed on the basis of a mistaken intent. However, there was no mistake or ambiguity as to the nature and breadth of the restrictions in the original deed from ESDC which restrictions were unequivocally intended to run with the land. Despite its good intentions, it is conceivable that certain parties may have misled, misinformed or misadvised Defendant as to the permanency and enforceability of these restrictions prior to its purchase of this parcel. Unfortunately, based on the unique and particular circumstances of this entire matter, Defendant's ownership of these 22 acres is encumbered by and subject to these restrictions.

Therefore, by reason of the foregoing, and based on the entire record before the Court, Plaintiffs have established their entitlement to summary judgment by the requisite quantum of proof and their motion is hereby GRANTED. Furthermore, as Defendant has not met its initial burden, its motion for summary judgment dismissing Plaintiff's Complaint is hereby DENIED.

AND IT IS SO ORDERED.

ENTER:

______________________________

ANTHONY J. PARIS

JUSTICE OF SUPREME COURT

Dated: February 13, 2013

Syracuse, New York