Opinion
Index No. 000650/2021
07-26-2021
SKANEATELES COUNTRY CLUB, Plaintiff, v. OLIVIA CAMBS, Defendant.
BRIAN J. BUTLER, ESQ., OF BOND, SHOENECK & KING, PLLC For Plaintiff PETER J. CAMBS, ESQ., OF GOEDE, ADAMCYZK, DEBOEST & CROSS For Defendant MEGAN K. THOMAS, ESQ. OF MACKENZIE HUGHES LLP Local Counsel
Unpublished Opinion
BRIAN J. BUTLER, ESQ., OF BOND, SHOENECK & KING, PLLC For Plaintiff
PETER J. CAMBS, ESQ., OF GOEDE, ADAMCYZK, DEBOEST & CROSS For Defendant
MEGAN K. THOMAS, ESQ. OF MACKENZIE HUGHES LLP Local Counsel
PRESENT: HON. DONALD A. GREENWOOD Supreme Court Justice
DECISION AND ORDER ON MOTION
HON. DONALD A. GREENWOOD, SUPREME COURT JUSTICE
The complaint in this matter seeks a declaratory judgment that the agreement between the parties constitutes a license which is terminable at will by the plaintiff. See, CPLR § 3001. The defendant interposed an answer with counterclaims seeking a declaratory judgment that the subject agreement is not terminable at will and for injunctive relief. Plaintiff then moved for summary judgment on its complaint and defendant has cross-moved for the same relief on her counterclaims.
Plaintiffs property in Skaneateles, New York includes the Breakwater and Boat Slip Project which consists of boat slips on Skaneateles Lake. On June 1, 2000, defendant entered into an Assignment Agreement with plaintiff which granted the defendant the right to use and occupy one of the slips. The Agreement provides that plaintiff "through its Board of Directors ...reserves the right to determine the specific boat slip location to be occupied by Assignee within the Breakwater and Boat Slip Project. "Assignment Agreement, para. 1. Therefore, clearly no specific lease to any particular boat slip was granted. It further states that the "slip can be transferred by the Assignee to their offspring, provided such offspring is at the time of the transfer, a member in good standing of the Assignor. "Id. at para 7. It likewise provides that the defendant as assignee "agrees to adhere to all the Rules and Policies of the Assignor at all times." Id. at para 2. This includes the Harbor Rules.
There is no dispute that there is a justiciable controversy concerning plaintiffs right to terminate the agreement at will. See, CPLR § 3001. Based on the record before it, this Court finds that the subject agreement constitutes a license, which, by definition, may be terminated by plaintiff. A license is a revokable privilege given to one without interest in the lands of another to do one or more acts of a temporary' nature upon such lands. See, Union Square Park Community Coalition v. New York City Department of Parks and Recreation, 22 N.Y.3d 648 (2014). Factors such as the amount of control the grantor retains over the premises, the exclusivity of the use of the premises by the grantee, the lack of express time limitations on the grantee's right to use the property and the personal and inalienable nature of the grantee's right of use are relevant considerations in the determination. See, Union Square, supra. The plaintiff has demonstrated that it retained significant control over the subject boat slip, and that it provided the defendant only with the right to use the slip. However, plaintiff retained control over its daily operations. Therefore, a license and not a lease exists. See, id. In addition, the Court need only look to the following language of the Agreement, indicating that plaintiff "reserves the right to determine the specific boat slip location to be occupied by Assignee" (para. 1) and that after the determination has been made by plaintiff that the occupancy is subject to its rules and policies at all times. See, para. 2. The Harbor Rules likewise make clear that a license exists. They set forth the manner in which a slip may be used and provide for restricted use on the part of the defendant as assignee: specifically, that the slip holder does not have the right to allow another member or non-member to use slip and that plaintiff s Board of Directors retains the right to cancel the Agreement if the rules are repeatedly violated. The Harbor Rules likewise set forth specifically enumerated rights and responsibilities. Thus, the Agreement and Harbor Rules clearly set forth plaintiff s control concerning issues such as assignment, maintenance and enforcement and these factors weigh in favor of the determination that a license exists. See, Union Square, supra. The construction of the written Agreement and Harbor Rules incorporated therein is a question of law for the court. See, Hartford Accident & Indem. Co. v. Wesolowski, 33 N.Y.2d 169 (1973). Where, as here, an agreement is complete, clear and unambiguous on its face, it must be enforced according to its plain meaning and terms. See, Ames v. County of Monroe, 162 A.D.3d 1724 (4th Dept. 2018). The Agreement here is unambiguous as the language it uses have a definite and precise meaning. The documents do not contain any language conveying to defendant exclusive rights to use and occupancy of the subject slip and instead reserves to the Board of Directors the right to assign a specific slip to be occupied by the defendant. Nor does the Agreement contain an express time limitation on defendant's right to use the slip, which likewise supports the determination of a license. See. Willow Tex, Inc. v. Dimacopoulos, 68 N.Y.2d 963 (1986).
In addition, the defendant's right to use the slip is personal and inalienable. A license is personal to the holder and is not assignable. See, Simmons v. Abbondandolo, 184 A.D.2d 878 (3rdDept. 1992). While the narrow exception is that defendant may transfer the Agreement and her personal rights to an offspring, this applies only when the offspring is a member in good standing at the time of the transfer. Plaintiff has demonstrated that while the exception may provide defendant some ability to assign her rights, in order for her to effectuate such an assignment, she would not only have to have offspring, but the offspring would have had to be vetted and accepted as a member by plaintiff before any assignment, giving plaintiff ultimate control over who may exercise rights under the Agreement. This narrow assignment provision is insufficient to alter the determination that a license exists. See, Sehco Laundry Sys. v. Oakwood Terrace Housing Corp.. Til A.D.2d 303 (2d Dept. 2000). Thus, because the Agreement constitutes a license, it is terminable at the plaintiff s will. See, American .Jewish Theater Company, 203 A.D.2d 155 (1st Dept. 1994).
Therefore, there is no basis for defendant's claim that the agreement is continuous and indefinite. Licenses in real property are terminable at the will of the licensor. See, Haines v. City of NY, 41 N.Y.2d 769 (1977); see also, Cronkhite v. Cronkhite, 94 NY323 (1884); see also, McNamara v. Wilcox, 73 AD 451 (1st Dept. 1902); see also, Amer. Infertility of NY, PC v. Verizon NY, Inc., 70 Misc.3d 1001 (NY Co. 2020). The subject Agreement involves real property as it provides defendant with the privilege of using and occupying one of plaintiffs boat slips. See, Bennett v. Genesee Marina. Inc., 237 A.D.2d 908 (4th Dept. 1997). Because the language contained therein is clear and unequivocal and thus not reasonably susceptible to more than one interpretation, extrinsic or parol evidence is not allowed to determine the parties' intent. See, Ames, supra. Therefore, the affidavits offered by Bent Thomsen, who signed the Agreement on plaintiffs behalf, and of defendant have no bearing on this Court's determination. See. WWW Associates, Inc. v. Giocontieri, 77 N.Y.2d 157 (1990).
Now, therefore, for the foregoing reasons, it is
ORDERED, that the plaintiff s motion for summary judgment is granted, and it is further
ADJUDGED AND DECLARED, that the subject agreement is a license terminable at the plaintiff s will and it is further
ORDERED, that defendant's cross-motion for summary judgment is denied.
Papers Considered:
1. Plaintiff s Notice of Motion, dated May 4, 2021.
2. Affirmation of Brian J. Butler, Esq., dated May 4, 2021.
3. Affidavit of Zach Maslyn. dated April 29, 2021, and attached exhibit.
4. Plaintiffs Statement of Material Facts, dated May 4, 2021.
5. Plaintiffs Memorandum of Law, dated May 4, 2021.
6. Defendant's Notice of Cross-Motion, dated June 2, 2021.
7. Affirmation of Peter J. Cambs, Esq., dated June 2, 2021, and attached exhibits.
8. Affidavit of Bent L. Thomsen, dated March 2, 2021, and attached exhibit.
9. Affidavit of Olivia Cambs, dated May 27, 2021. and attached exhibit.
10. Defendant's Statement of Material Facts, dated June 2, 2021.
11. Defendant's Memorandum of Law, dated June 7, 2021.
12. Plaintiffs Memorandum of Law. dated June 15, 2021.
13. Affidavit of David Dickman, dated June 14, 2021.
14. Defendant's Memorandum of Law, dated June 18, 2021.
15. Letter of Brian J. Butler, Esq., dated June 21, 2021.