Deak v. Heathcote Ass'n

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before THOMPSON
• Citation: Deak v. Heathcote Ass'n, 595 N.Y.S.2d 556, 191 A.D.2d 671 (N.Y. App. Div. 1993)
• Decision Date: 29 March 1993
• Parties: Robert Leslie DEAK, et al., Appellants, v. HEATHCOTE ASSOCIATION, etc., et al., Respondents.

Page 556

595 N.Y.S.2d 556

191 A.D.2d 671

Robert Leslie DEAK, et al., Appellants, v. HEATHCOTE ASSOCIATION, etc., et al., Respondents.

Supreme Court, Appellate Division Second Department.

March 29, 1993.

Cohen, Jason & Mascali, Scarsdale (Robert P. Mascali, of counsel), for appellants.

Cuddy & Feder, White Plains (Lawrence J. Reiss, of counsel), for respondents.

Before THOMPSON, J.P., and ROSENBLATT, MILLER and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action pursuant to RPAPL article 15 for a judgment declaring that a certain restrictive covenant does not prohibit the plaintiffs from subdividing their property and declaring the restrictive covenant is unenforceable, the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Delaney, J.), dated October 29, 1990, which declared the restrictive covenant valid and enforceable and prohibited the plaintiffs from subdividing their property.

ORDERED that the judgment is affirmed, with costs.

In 1981 the plaintiff Robert Leslie Deak purchased a parcel of land located in the Heathcote section of Scarsdale. Subsequently, the plaintiff Robert Leslie Deak transferred the parcel by deed to himself and his wife, the plaintiff Robin Deak. All properties in the Heathcote area are burdened by a restrictive covenant which, inter alia, provides that "nor shall more than one residence be erected on the said plot * * * nor shall said plot be subdivided or sold except as a whole". This covenant may be altered or waived by the defendant Heathcote Association, whose membership consists of the property owners in the restricted section. However, the defendant Heathcote Association rejected the plaintiff Robert Leslie Deak's request for a waiver of the restriction. The plaintiffs then commenced this action for a judgment declaring the restriction unenforceable.

RPAPL 1951(2) provides that a court may extinguish a restriction if "the restriction is of no actual and substantial benefit to the person seeking its enforcement or seeking a declaration or determination as to 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". The issue in determining whether a restrictive covenant is unenforceable is not whether the party seeking the enforcement of the restriction obtains any benefit, but whether, in a balancing of equities, the restrictive covenant is of no actual and substantial benefit (see, Orange & Rockland Utilities v. Philwold Estates, 52 N.Y.2d 253, 437 N.Y.S.2d 291, 418 N.E.2d 1310).

The party claiming unenforceability of a restriction bears the burden of proving unenforceability (see, Board of Educ., East Irondequoit Cent. School Dist. v. Doe, 88 A.D.2d 108, 118, 452 N.Y.S.2d 964; Nash v. State of New York, 61 A.D.2d 852, 855, 401 N.Y.S.2d 923). Thus, the party seeking the extinguishment of the restriction must prove (1) lack of benefit derived from enforcement of the restriction, and (2) legally cognizable reason for the extinguishment of the restriction under RPAPL 1951, such as changed conditions which render the purpose of the restriction incapable of being accomplished (see, Orange & Rockland Utilities v. Philwold Estates, 52 N.Y.2d 253, 437 N.Y.S.2d 291, 418 N.E.2d 1310, supra; Board of Educ., East Irondequoit Cent. School Dist. v. Doe, supra; see, also, In re 523 East Fifth Street Housing Preservation Dev. Fund...