Bailey v. Chernoff

• Decision Date: 21 November 2007
• Docket Number: 501013.
• Citation: 846 N.Y.S.2d 462,2007 NY Slip Op 09142,45 A.D.3d 1113
• Parties: JERRY D. BAILEY et al., Plaintiffs, and FRANCIS S. ZILKA et al., Appellants, v. DANIEL M. CHERNOFF et al., Respondents.
• Court: New York Supreme Court — Appellate Division

45 A.D.3d 1113

846 N.Y.S.2d 462

2007 NY Slip Op 09142

JERRY D. BAILEY et al., Plaintiffs, and FRANCIS S. ZILKA et al., Appellants, v. DANIEL M. CHERNOFF et al., Respondents.

501013.

Appellate Division of the Supreme Court of the State of New York, Third Department.

Decided November 21, 2007.

Appeal from a order of the Supreme Court (Williams, J.), entered June 30, 2006 in Saratoga County, which, among other things, partially granted defendants' cross motion for summary judgment and cancelled the notice of lis pendens filed by plaintiffs.

Cardona, P.J.

The parties herein are residents of Regatta View, a planned unit development located in the City of Saratoga Springs, Saratoga County. The development was sponsored by Homeland Development Corporation, which sold parcels subject to a filed "Covenants and Declarations of Restrictions," as well as the bylaws of the Regatta View Homeowners Association (hereinafter Association). As relevant herein, during a July 2004 open meeting of the Association's Board of Directors, defendants, owners of a waterfront parcel, applied for permission to build a boathouse on their property. While the development's original covenants and restrictions did not specifically identify boathouses as being prohibited, the Board was unsure whether the application could be granted and indicated that Homeland Development would be contacted about an amendment that would unambiguously permit boathouse structures within the subdivision, subject to architectural review by the Board.^* Although several homeowners were present at the meeting, no objections were recorded. Thereafter, on October 8, 2004, Homeland Development amended the covenants and restrictions to permit boathouses.

In April 2005, the City of Saratoga Springs approved defendants' request to construct a boathouse and issued a building permit. Defendants began construction in May 2005 and plaintiffs, whose property adjoins defendants' parcel, indicated that they first noticed work being done on the project in June 2005. Thereafter, they consulted legal counsel in late August 2005 to determine the "lawfulness of the subject boathouse." The attorney inspected the boathouse with one of the plaintiffs on August 30, 2005, at which point it "looked to be complete from all outward appearances."

Plaintiffs commenced this action and filed a notice of pendency in November 2005, claiming that the boathouse was erected in violation of the covenants and restrictions because Homeland Development allegedly lacked the authority to, among other things, issue the October 2004 amendment. The complaint set forth two causes of action. The first sought a permanent injunction restraining defendants from "erecting and/or maintaining a boathouse" and the second requested money damages for nuisance. Defendants, whose attempt to sell their home was allegedly thwarted by the commencement of this litigation, asserted several affirmative defenses in their answer along with two counterclaims alleging slander of title and tortious interference with business relations.

Thereafter, plaintiffs moved pursuant to CPLR 3211 (a) (7) to dismiss defendants' counterclaims for failure to state a cause of action. The parties then cross-moved for summary judgment, with defendants seeking the dismissal of the complaint with cancellation of the lis pendens and plaintiffs requesting summary judgment as to their first cause of action. Concluding that defendants' affirmative defense of laches was meritorious, Supreme Court granted defendants' cross motion for summary judgment to the extent of dismissing the first cause of action, cancelling the lis pendens and holding that "the boathouse may remain as is." The court also denied plaintiffs' motions. This appeal by plaintiffs Francis S. Zilka and Suzanna L. Zilka (hereinafter collectively referred to as plaintiffs) followed.

Initially, we agree with Supreme Court's conclusion that the doctrine of laches bars plaintiffs' request for a permanent injunction. Even assuming that plaintiffs are correct in contending that the amendment to the development's covenants and restrictions to permit boathouses was improper, restrictive covenants "will not be enforced in inequitable circumstances, such as ... where the party seeking enforcement is guilty of laches" (Meadow Run Dev. Corp. v Atlantic Ref. & Mktg. Corp., 155 AD2d 752, 754 [1989] [citation omitted]). Notably, in order to succeed on a defense of laches, a party must demonstrate: "(1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the...