Honeyman Point Beach Assn., Ltd. v Schiff, 2009 NY Slip Op 05946 (App. Div., 2nd, 2009)
On appeal, the plaintiffs have abandoned their claim that the right to use the beach was automatically renewed upon the absence of a written termination agreement, and they argue for the first time that the right to use the beach did not constitute a "covenant" subject to expiration under the terms of the declaration, but rather an easement that runs with the land and passes to successive lot owners. Contrary to the defendants' contention, this issue may be raised for the first time on appeal because it is one of law which appears on the face of the record and could not have been avoided if it had been raised at the proper juncture (see Romain v Grant, 60 AD3d 838, 839; Beepat v James, 303 AD2d 345). However, since the plaintiffs interchangeably referred to the right to use the beach as both a "covenant" and "easement" before the lower court, and relied upon the language in the declaration that they now seek to disavow, they are estopped from raising the new claim, which is inconsistent with the position taken before the Supreme Court (see Matter of Sbuttoni, 16 AD3d 693, 694; Kohilakis v Smithtown, 167 AD2d 513, 514). In any event, the language of the declaration did not unequivocally establish an intent to create a right in the nature of an easement rather than a revocable license (see Willow Tex v Dimacopoulos, 68 NY2d 963, 965). Accordingly, the Supreme Court properly granted the defendants' separate motions to dismiss the complaint.
The bold is mine.
