Bardach v. Mayfair-Flushing Corp.
| Decision Date | 10 February 1966 |
| Docket Number | MAYFAIR-FLUSHING |
| Parties | Kurt BARDACH et al., Plaintiffs, v.CORP. et al., Defendants. |
| Court | New York Supreme Court |
Barney Rosenstein, New York City, for plaintiffs.
I. Louis Winokur, Jamaica, for defendants.
On August 29, 1960, this Court rendered a judgment (26 Misc.2d 32, 204 N.Y.S.2d 378) in favor of plaintiffs, residential tenants of an apartment house situated on the south side of 35th Avenue, approximately 200 fee east of Parsons Boulevard having a frontage of 175 fee on 35th Avenue and a depth of 180 feet, in the Borough and County of Queens, City and State of New York, known as Lots 19 and 23 in Section 25, Block 5003 of the Tax Map of the County of Queens, declaring their rights to the use of an adjoining vacant parcel of real property owned by the then defendant Mayfair-Flushing Corp. (hereinafter referred to as Mayfair), situated on the north side of Northern Boulevard approximately 200 feet east of Parsons Boulevard and having a frontage on Northern Boulevard of 175 feet and a depth of 170.21 feet, in the Borough and County of Queens, City and State of New York, known as Lot No. 25 in Section 25, Block 5003 of the Tax Map of the County of Queens, and for injunctive relief declaring that the plaintiffs 'in common with all persons now tenants or who may hereafter become tenants' have an easement in said property of defendant for vehicle and pedestrian traffic, light and air, and use of a recreation and play area; and enjoined defendants from interfering with such easement upon the authority of Doyle v. Lord, 64 N.Y. 432.
On March 27, 1961 the Appellate Division of this Department modified the judgment on the law by deleting the words 'or who may hereafter become tenants' (13 A.D.2d 542, 214 N.Y.S.2d 659), thus restricting the benefits of the easement only to those who were tenants in the said premises at the time of the entry of said judgment. On November 30, 1961 the Court of Appeals affirmed said judgment as modified (10 N.Y.2d 962, 224 N.Y.S.2d 281, 180 N.E.2d 62).
This is an application made by the defendants, by order to show cause, for an order (1) permitting defendants 'to renew the previous motion decided by Mr. Justice Livoti on Oct. 2nd, 1964' for relief from the judgment upon additional grounds not involved in the previous application (2) for leave to reargue the decision denying the motion previously made for relief at the foot of the judgment; and (3) upon such renewal and reargument to modify the judgment under the general equity powers of this Court and also pursuant to section 1951 of the Real Property Actions and Proceedings Law so as to eliminate the provision in the judgment enjoining joining the defendants from using their real property and declaring that the rights and easements of the plaintiffs are of no actual and substantial benefit and are therefore unenforceable and extinguishing such rights and easements.
Thus, the defendants now move for an order to extinguish certain restrictions on the use of their property 'by reason of changed conditions or their cause, its purpose is not capable of accomplishment', pursuant to the provisions of section 1951 of the of the Real Property Actions and Proceedings Law.
A hearing was held on September 29, 1965 before this Court at which time both sides produced testimony of witnesses and documentary evidence. At the commencement of the hearing, defendants' attorney moved to add Joseph Rubinfeld as a party defendant herein, the grantee of defendant Mayfair, on which motion the Court reserved its decision.
Joseph Rubinfeld testified that he was a stockholder and financially interested in defendant Mayfair since 1959 and that he acquired title to the real property, which is the basis of this action, from defendant Mayfair primarily to protect his investment at a cost in excess of $70,000. He produced a contract of sale dated February 14, 1963 by and between defendant Mayfair, as seller, and himself, as purchaser, of said real property. He further produced the closing statement in connection with the said sales contract.
This Court has inherent power in the exercise of its control over its judgments to open them upon the application of any one for sufficient reason in the furtherance of Justice. (Ladd v. Stevenson, 112 N.Y. 325, 332, 19 N.E. 842, 844.) The Court will consider any application to correct, modify or set aside its final orders and judgments where it appears, for sufficient reasons, that substantial justice be subserved by such judgment and that persons' rights be injuriously affected thereby, although such persons be not parties to the proceeding, so that injustice to such persons be prevented. (Matter of City of Buffalo, 78 N.y. 362, 370; Ladd v. Stevenson [supra]; Flanson Realty Corp. v. Workers' Unity House, Inc., 229 App.Div. 179, 183, 241 N.Y.S. 335, 339; Lowber v. Mayor, etc., 26 Barb. 262; Matter of Automatic Chain Co., 134 App.Div. 863, 119 N.Y.S. 379, affd. 198 N.Y. 618, 92 N.E. 1078; Trustees of Columbia College v. Thacher, 87 N.Y. 311; 5 Weinstein-Korn-Miller, New York Civil Practice, par. 5015.15).
It is noted that pursuant to CPLR 5015(a) 3 the Court may reconsider and relieve a party from a judgment upon the ground of 'fraud misrepresentation, or other misconduct of an adverse party'. In the original Advisory Committee draft, the words 'misrepresentation and other misconduct' were not included. (N.Y.Legis.Doc., 1959, No. 17, p. 203). They were inserted in the next draft (N.Y.Legis.Doc., 1960, No. 20, pp. 214-215) and are now in the present rule. 'The effect is to broaden the basis for granting relief beyond that recognized in the prior case law by permitting the court to vacate a judgment without a showing of facts that establishes the commission of a fraud.' (5 Weinstein-Korn-Miller, New York Civil Practice, par. 5015.08.)
It is apparent that simple justice requires the granting of defendants' motion to add Joseph Rubinfeld as a party defendant herein.
The primary question posed for decision--the applicability of section 1951, subdivision 1, of the Real Property Actions and Proceedings Law which provides:
'No restriction on the use of land created at any time by covenant, promise or negative easement, or created on or after September 1, 1958, by a special limitation or condition subsequent enforced by injunction governed by section 1953, shall be enforced by injunction or judgment compelling a conveyance of the land burdened by the restriction or an interest therein, nor shall such restriction be declared or determined to be enforceable, if, at the time the enforceability of the restriction is brought in question, it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason.' (Emphasis supplied.)
The third decretal paragraph, subdivision 5, of said judgment states:
'That the defendant Mayfair-Flushing Corp., has the right to continue to use and maintain the circular driveway situated on parcel III for the parking of motor vehicles of said plaintiffs and tenants, not to exceed, however, a total of 21 motor vehicles in all, and shall make same available to the said plaintiffs and all persons now tenants for such purposes * * *.'
(Parcel III referred to in judgment is now property of Rubinfeld.)
The proof revealed at the hearing by uncontradicted testimony of defendants' witness Herbert H. Warman, a registered architect duly licensed to practice architecture in the State of New York and fully familiar with the rules and regulations of the Building and Zoning Ordinances of the City of New York, established that The Zoning Resolution of the City of New York, effective December 15, 1961, forbids the use of any part of the property of defendant Mayfair (now property of Joseph Rubinfeld) to be used for parking of motor vehicles for the use of the plaintiffs because said property is not owned by the same owner of plaintiffs' apartment building and, therefore, said parcel III cannot be used as a permitted 'accessory off-street parking' use, due to separate ownership. He further testified and produced a copy of a summons and information indicating that there is now pending in the Criminal Court of the City of New York, Queens County, Part VI, an action entitled 'People of the State of New York v. Joseph Rubinfeld' wherein Rubinfeld, as the new owner of said parcel III herein, is subject to criminal prosecution for violation of 'Parking cars on Lot--No Certificate of Occupancy' in violation of the Zoning Resolution of the City of New York, effective December 15, 1961. The Zoning Resolution of the City of New York, effective December 15, 1961 (Chapter 2 'Construction of Language and Definitions)', section 12.10 provides in part:
'An 'accessory use': (a) Is a use conducted on the same zoning lot as the principal use to which it is related (whether located within the same or an accessory building or other structure, or as an accessory use of land), except that, where specifically provided in the applicable district regulations, accessory off-street parking or loading need not be located on the same zoning lot; and * * * (c) Is either in the same ownership as such principal use, or is operated and maintained on the same zoning lot substantially for the benefit or convenience of the owners, occupants, employees, customers, or visitors of the principal use. When 'accessory' is used in the text, it shall have the same meaning as accessory use. (Italics in original).
The defendants, at the conclusion of the hearing, requested the Court to issue a subpoena duces tecum for the official records...
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