Clintwood Manor, Inc. v. Adams

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before BASTOW; PER CURIAM
• Citation: Clintwood Manor, Inc. v. Adams, 287 N.Y.S.2d 235, 29 A.D.2d 278 (N.Y. App. Div. 1968)
• Decision Date: 22 February 1968
• Parties: CLINTWOOD MANOR, INC., and Socony Mobil Oil Company, Inc., Appellants, v. Joseph T. ADAMS et al., Respondents.

Page 235

287 N.Y.S.2d 235

29 A.D.2d 278

CLINTWOOD MANOR, INC., and Socony Mobil Oil Company, Inc., Appellants, v. Joseph T. ADAMS et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Feb. 22, 1968.

Harris, Beach, Wilcox, Dale & Linowitz, Rochester, for appellants, Henry W. Williams, Jr., Rochester, of counsel.

Robinson, Williams, Brown, Robinson & Angeloff, Rochester, for respondents, Mitchell T. Williams, Rochester, of counsel.

Before BASTOW, J.P., and GOLDMAN, DEL VECCHIO, MARSH and HENRY, JJ.

PER CURIAM:

Plaintiffs appeal from a dismissal of their complaint in an action brought under Real Property Actions and Proceedings Law, section 1951 (formerly Real Property Law, § 346) to extinguish restrictions on the use of real property owned by plaintiffs and described as Lot RB on a resubdivision of Highland Grove subdivision. These restrictions were imposed by a conveyance in 1914 and limited the premises 'for the usual and ordinary purposes of a residence or dwelling and not otherwise * * *'. Most of the land in question had remained vacant for many years. A portion of it was used for the construction of garden-type apartments. The general neighborhood surrounding the property in question has been, in part, developed commercially. More than forty per cent of the property in the general locality has been rezoned by the Town to permit uses other than single family residences. The plaintiffs' property has been rezoned to permit commercial use and a permit has been granted for the construction and operation of a gasoline station. This property is located on the south-westerly corner of Highland Grove subdivision at the intersection of Clinton Avenue South and Elmwood Avenue, the latter being one of the most heavily travelled thoroughfares in the area. Each of the other three corners of the intersection has for some time been occupied by an operating gasoline station.

The problem is basically one of balancing the equities (Evangelical Lutheran Church of the Ascension of Snyder v. Sahlem, 254 N.Y. 161, 172 N.E. 455; McClure v. Leaycraft, 183 N.Y. 36, 75 N.E. 961; Trustees of Columbia College v. Thacher, 87 N.Y. 311; Koch v. Nestle, 27 A.D.2d 633, 275 N.Y.S.2d 908; Warren's Weed, N.Y. Real Property, Vol. 4, Restrictive Covenants, § 3, p. 728 et seq.; 13 N.Y.Jur., Covenants and Restrictions, § 105 et seq.). 'Equity may refuse to enforce a restrictive covenant upon the ground of change of conditions only where it is established that the change is such that the restriction has become valueless to the property of the plaintiffs and onerous to the property of the defendants * * *' (Cummins v. Colgate Properties Corp., 2 Misc.2d 301, 306, 153 N.Y.S.2d 321, 326, affd. 2 A.D.2d 749, 153 N.Y.S.2d 608). However, it is equally clear that a restrictive covenant should not be continued for 'Inequity there may be in standing on the letter of a covenant when the neighborhood has so altered that the ends to be attained by the restriction have been frustrated by the years * * *' (Evangelical Lutheran Church v. Sahlem, supra, 254 N.Y. at p. 167, 172 N.E. at p. 457).

The record amply demonstrates that the 1914 restrictions are 'of no actual and substantial benefit to the persons seeking its enforcement * * * by reason of changed conditions or other cause, its purpose is not capable of accomplishment * * *' (RPAPL, § 1951(2)). Fewer than ten of the original 407 lots in Highland Grove have had residences constructed upon...