Dever v. Devito

• Decision Date: 12 May 2011
• Citation: 84 A.D.3d 1539,922 N.Y.S.2d 646,2011 N.Y. Slip Op. 03938
• Parties: Lisa L. DEVER, Respondent,v.Mark DeVITO et al., Appellants.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 1539

922 N.Y.S.2d 646

2011 N.Y. Slip Op. 03938

Lisa L. DEVER, Respondent,

v.Mark DeVITO et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

May 12, 2011.

Young Sommer, L.L.C., Albany (J. Michael Naughton of counsel), for appellants.Powers & Santola, L.L.P., Albany (Michael J. Hutter of counsel), for respondent.Before: PETERS, J.P., ROSE, LAHTINEN, MALONE JR. and GARRY, JJ.PETERS, J.P.

Appeal from an order of the Supreme Court (Muller, J.), entered April 21, 2010 in Essex County, which, among other things, denied defendants' cross motion for summary judgment dismissing the amended complaint.

The parties own adjoining parcels of property within the Chipmunk Lane Association, Inc. subdivision in the Town of North Elba, Essex County. Defendants purchased their waterfront lot, which is positioned between plaintiff's property and Lake Placid, in 2007 and sought to demolish the dilapidated house situated on the property and build a new home there. Defendants' architect drafted plans for the new home, but plaintiff took issue with them, primarily because she was concerned that the new, larger home would obstruct her view of the lake.

In June 2008, after defendants' initial plans had been approved by the Joint Review Board of the Village of Lake Placid/Town of North Elba, plaintiff commenced this action to enjoin the construction of defendants' home and for money damages, claiming that the proposed construction violated certain restrictive covenants applicable to the properties within Chipmunk Lane. Defendants thereafter hired a second architect, Andrew Chary, who developed new plans which, among other things, decreased the size of the proposed home. Those plans were eventually approved by the Joint Review Board and the Adirondack Park Agency. After meeting with Chary to review the new plans, and apparently agreeing that the new design was better than the original and securing defendants' agreement to further reduce the roof ridge line height of the proposed home, plaintiff pressed forward with this litigation and amended her complaint, this time omitting her claims for damages.

Plaintiff thereafter moved for a preliminary injunction, which motion was denied by Supreme Court. Although she filed a notice of appeal from that order, the appeal was ultimately withdrawn. In November 2009, after construction of defendants' home was underway, plaintiff moved for leave to amend her complaint a second time for the purpose of reasserting a claim for damages and adding necessary parties, and defendants cross-moved for summary judgment dismissing the amended complaint. Supreme Court granted plaintiff's motion and denied defendants' cross motion. This appeal by defendants ensued.

Initially, we reject defendants' assertion that plaintiff lacks standing to commence this action. The covenants at issue are part of a common development scheme created for the benefit of all property owners within Chipmunk Lane. Plaintiff therefore has standing to enforce the restrictive covenants against any other individual property owner within the development ( see Irish v. Besten, 158 A.D.2d 867, 867, 551 N.Y.S.2d 659 [1990]; Matter of Van Euclid Co. v. Sargent, 97 A.D.2d 913, 914–915, 470 N.Y.S.2d 750 [1983] ).

We are similarly unpersuaded that Supreme Court erred in granting plaintiff's motion for leave to amend her complaint. “As a general rule, leave to amend a pleading rests within the trial court's discretion and should be freely granted in the absence of prejudice or surprise resulting from the delay except in situations where the proposed amendment is wholly devoid of merit” ( Bast Hatfield, Inc. v. Schalmont Cent. School Dist., 37 A.D.3d 987, 988, 830 N.Y.S.2d 799 [2007] [internal quotation marks and citations omitted]; see Gersten–Hillman Agency, Inc. v. Heyman, 68 A.D.3d 1284, 1289, 892 N.Y.S.2d 209 [2009] ). Here, plaintiff sought to amend the complaint a second time to add necessary parties and reallege her claim for money damages. As defendants themselves raised the issue that the parties named in the second amended complaint must be added to accord full relief, we discern no abuse of discretion by Supreme Court in permitting the complaint to be amended in this regard. Furthermore, inasmuch as a claim for money damages was contained in the original complaint and “ ‘rests on the same factual circumstances as those forming the basis of the original [and first amended] complaint’ ” ( Acker v. Garson, 306 A.D.2d 609, 610, 759 N.Y.S.2d 609 [2003], quoting Kaplan v. Sparks, 192 A.D.2d 1119, 1120, 596 N.Y.S.2d 279 [1993] ), we find no evidence that defendants would be surprised or prejudiced by amending the complaint in this regard. Contrary to defendants' contention, the proposed verified second amended complaint and attorney affidavit submitted by plaintiff supplied the requisite evidentiary support for the money damages claim ( see Bast Hatfield, Inc. v. Schalmont Cent. School Dist., 37 A.D.3d at 988, 830 N.Y.S.2d 799; McFarland v. Michel, 2 A.D.3d 1297, 1300, 770 N.Y.S.2d 544 [2003]; Farrell v. K.J.D.E. Corp., 244 A.D.2d 905, 905, 665 N.Y.S.2d 201 [1997] ).

We do agree, however, that to the extent that plaintiff seeks to enjoin the construction of defendants' replacement home as violative of the restrictive covenants, the issue is now moot. While plaintiff sought a preliminary injunction and appealed to this Court when that relief was denied, she did not seek a stay in this Court, eventually withdrew her appeal and thereafter failed to pursue any additional legal relief to preserve the status quo or prevent further construction of defendants' residence ( see Matter of Abate v. City of Yonkers, 10 A.D.3d 605, 607, 781 N.Y.S.2d 667 [2004], lv. dismissed and denied 4 N.Y.3d 736, 790 N.Y.S.2d 636, 823 N.E.2d 1283 [2004]; Matter of Zimmerman v. Planning Bd. of Town of Schodack, 294 A.D.2d 776, 778 n. 2, 742 N.Y.S.2d 431 [2002], lv. denied 98 N.Y.2d 612, 749 N.Y.S.2d 4, 778 N.E.2d 555 [2002]; Matter of Padavan v. City of New York, 291 A.D.2d 561, 561, 738 N.Y.S.2d 249 [2002]; Matter of Gorman v. Town Bd. of E. Hampton, 273 A.D.2d 235, 236, 709 N.Y.S.2d 433 [2000], lv. denied 96 N.Y.2d 703, 723 N.Y.S.2d 130, 746 N.E.2d 185 [2001]; Vanderwoude v. Post/Rockland Assoc., 192 A.D.2d 702, 702–703, 597 N.Y.S.2d 112 [1993] ). In the interim, defendants' home was fully constructed, at a cost upwards of $1 million, and they have now moved into the residence. Furthermore, defendants did not proceed with construction in bad faith. To the contrary, defendants did not begin construction until nearly 1 1/2 years after this action was commenced and following the denial of plaintiff's motion for a preliminary injunction, and only after pursuing and obtaining all necessary approvals and permits. Thus, it cannot be said that defendants “race[d] to completion” in order to defeat plaintiff's rights to judicial review, or that they otherwise proceeded in bad faith or without authority ( Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 2 N.Y.3d 727, 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 [2004]; see Matter of Wallkill Cemetery Assn., Inc. v. Town of Wallkill Planning Bd., 73 A.D.3d 1189, 1191, 905 N.Y.S.2d 609 [2010]; Matter of Mehta v. Town of Montour Zoning Bd. of Appeals, 4 A.D.3d 657, 658, 771 N.Y.S.2d 754 [2004] ). Moreover, given that the construction of the house is now complete, such work could not be readily undone without undue hardship, and substantial prejudice to defendants would result if plaintiff prevailed on her claims for injunctive relief under these circumstances ( see Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York...