Dodge v. Baker

• Decision Date: 07 May 2021
• Docket Number: CA 19-02169,64
• Citation: 194 A.D.3d 1348,149 N.Y.S.3d 381
• Parties: Robert L. DODGE, Plaintiff-Appellant, v. Ernest W. BAKER, Jr., and Anne L. Baker, Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1348

149 N.Y.S.3d 381

Robert L. DODGE, Plaintiff-Appellant,

v.Ernest W. BAKER, Jr., and Anne L. Baker, Defendants-Respondents.

64

CA 19-02169

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

Entered: May 7, 2021

MATTHEW R. ST. MARTIN, NEWARK, FOR PLAINTIFF-APPELLANT.

PRESENT: SMITH, J.P., LINDLEY, NEMOYER, CURRAN, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and granting judgment in favor of plaintiff as follows:

It is ADJUDGED and DECLARED that the fence constructed on defendants’ property violates a valid and enforceable restrictive covenant in the deeds to the parties’ properties,

and as modified the order is affirmed without costs, and the matter is remitted to Supreme Court, Wayne County, for further proceedings in accordance with the following memorandum: Plaintiff and defendants own adjoining properties in Wayne County with views of Sodus Bay, and those properties can be traced to one original grantor, nonparty Sodus Bay Heights Land Co., Inc. (Land Company). The Land Company created a subdivision and, between the years of 1924 and 1937, it sold numerous parcels in accordance with its planned development. Plaintiff and defendants obtained title to their property through chains of title that date back to owners who purchased their property directly from the Land Company. Both properties are subject to two relevant restrictive covenants that run with the land. The first stated "[t]hat no line fence shall be erected on said lot without the written consent of the [Land Company], or its successors or assigns." The second stated "[t]hat no unnecessary trees or other obstructions shall be permitted on said lot which shall hide the view of other residents in Sodus Bay Heights."

Immediately after purchasing their property, defendants sought to erect a fence on their property line, but plaintiff informed them that such fence was prohibited by the restrictive covenants. Defendants nevertheless obtained a permit from the Village of Sodus (Village) to construct the fence and constructed the fence. Plaintiff thereafter commenced this action seeking, inter alia, a declaration that the restrictive covenants are valid and enforceable and that the fence constructed by defendants is in violation of the restrictive covenants. Plaintiff then moved for summary judgment on the complaint. Supreme Court denied plaintiff's motion, finding that defendants "secured written consent of the successor of the [Land Company]," i.e., the Village and, as a result, complied with the first restrictive covenant. With respect to the second covenant, the court determined that there was a triable issue of fact whether the fence as constructed "hides [plaintiff's] view."

Although we agree with the court that there are triable issues of fact whether the fence hides plaintiff's view, we conclude that plaintiff established as a matter of law that the first restrictive covenant is valid and enforceable and that defendants violated the first restrictive covenant when they constructed the fence without the written consent of the Land Company, or its successors or assigns. We further conclude that defendants failed to raise a triable issue of fact to defeat the motion.

Generally, "[r]estrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy" ( Chambers v. Old Stone Hill Rd. Assoc. , 1 N.Y.3d 424, 431, 774 N.Y.S.2d 866, 806 N.E.2d 979 [2004] ), and it is well settled that the party seeking to enforce such a restriction "must prove, by clear and convincing evidence, the scope, as well as the existence, of the restriction" ( Greek Peak, Inc. v. Grodner , 75 N.Y.2d 981, 982, 556 N.Y.S.2d 509, 555 N.E.2d 906 [1990] ). Here, plaintiff established as a matter of law the scope and the existence of a restriction against fences.

Additionally, we agree with plaintiff that the phrase "line fence" is not ambiguous and has a definite meaning (see Fogle v. Malvern Courts, Inc. , 554 Pa. 633, 636, 722 A.2d 680, 682 [1999] ). We further agree with plaintiff that, even though the Village granted a permit approving the construction of a fence, the issue whether a restrictive covenant may be enforced is separate and distinct from the issue of a municipality's authority to grant a permit under its zoning codes (see Chambers , 1 N.Y.3d at 432, 774 N.Y.S.2d 866, 806 N.E.2d 979 ; Rautenstrauch v. Bakhru , 64 A.D.3d 554, 555, 884 N.Y.S.2d 77 [2d Dept. 2009] ). As a result, the only remaining issue is whether the Village was a "successor" of the Land Company with the authority to issue the requisite written consent for a fence.

As noted, the first restrictive covenant in the chain of title for plaintiff's and defendants’ properties...