Dubrowsky v. Benedict

• Decision Date: 02 August 1971
• Citation: 67 Misc.2d 189,324 N.Y.S.2d 208
• Parties: James DUBROWSKY and Josephine Dubrowsky, Plaintiffs, v. George W. BENEDICT, Defendant. George W. BENEDICT, Counterclaim-Plaintiff, v. Walter R. STRUBEL et al., Counterclaim-Defendants.
• Court: New York Supreme Court

Page 208

324 N.Y.S.2d 208

67 Misc.2d 189

James DUBROWSKY and Josephine Dubrowsky, Plaintiffs, v. George W. BENEDICT, Defendant.

George W. BENEDICT, Counterclaim-Plaintiff, v. Walter R. STRUBEL et al., Counterclaim-Defendants.

Supreme Court, Special Term, Nassau County, Part I.

Aug. 2, 1971.

[67 Misc.2d 190] D'Amico & Albin, Mineola, for plaintiffs.

Kendrick C. Smith, Farmingdale, for Dominic J. and Dorothy K. Posillico.

Schiffmacher, Rochford & Cullen, Great Neck, for defendant and counterclaim-plaintiff.

Cronin & Nicosia, Farmingdale, for Walter R. and Norma A. Strubel.

MEMORANDUM

BERNARD S. MEYER, Justice.

This motion for summary judgment raises the interesting and, it appears, somewhat novel question whether a covenant running with the land can be created by Will. The Court concludes that, at least in the circumstances of this case, it has not been.

Elizabeth Schoppa died October 1, 1967, and by her will devised her only real property, a three and one-half acre parcel of land in Farmingdale containing a one family house at the northerly end thereof, to her sister Rose Seyfarth. The devise included the following language.

'I do hereby restrict the unimproved portion of may said real property to the construction of only two additional one-family dwellings with garages thereon and this restriction shall run with the said land and is to be included in all future conveyances of the said unimproved property'.

Rose Seyfarth died testate on December 8, 1967. The executor under her will conveyed the Schoppa parcel to the defendant Benedict on November 26, 1968. The executor's conveyance was made '(S)ubject to the restriction imposed upon the unimproved portion of the premises * * * set forth in the * * * will * * * of Elizabeth Schoppa, deceased * * *'. In contemporaneous transactions, Benedict on May 29, 1969, conveyed three separate portions of the Schoppa parcel by three deeds all three of which were recorded on June 5, 1969 at the same time. The first, which conveyed the portion improved with the one family house to the plaintiffs Dubrowsky, makes no reference to the restriction. The second conveyed an unimproved portion of the parcel to the counterclaim defendants Strubel; and the third conveyed another unimproved portion of the parcel to the counterclaim defendants Posillico. Each of the latter deeds provides that the conveyance made by it is 'Subject to the restriction imposed under the * * * will * * * of Elizabeth Schoppa, deceased, which reads as follows (then quoting the full text of the restriction)'.

The result of these conveyances was to leave Benedict with about 2.4 unimproved acres of the original Schoppa parcel. The Benedict acreage adjoins and abuts along at least one course each of the portions of the Schoppa parcel conveyed by him.

Benedict now proposes, and has the approval of the Planning Board of the Village of Farmingdale for, the erection of four one-family dwellings on his retained acreage. The Dubrowskys have sued to enjoin and restrain him from erecting any one family dwellings (i.e. from improving his property) since that, it is claimed, would violate the restrictions above described. Benedict has counterclaimed, joining his other grantees as counterclaim defendants, seeking a declaration that the restriction in the Schoppa will, in the executor's deed to Benedict, and in the Benedict deeds be declared void and that his land is unencumbered by the restriction. He now moves for summary judgment. The counterclaim defendants, who executed an indenture on September 14, 1970, consenting to the subdivision of the Benedict retained acreage into four building plots and the construction of dwellings thereon, have submitted no opposition to the motion. The plaintiff James Dubrowsky candidly concedes in his opposing affidavit that prior to purchasing his property he was informed by Benedict of the proposed plan to subdivide the remainder of the Schoppa parcel, but says that he relied upon the advice of his own attorneys that this could not be done. He also acknowledges advising Benedict that he would waive his right to enforce the restriction if Benedict 'gave me a small amount of additional square footage to make my lands of sufficient size so as to subdivide it into two parcels', and thus permit him to recoup the depreciation in value of his home that would result were the restriction deemed inapplicable.

Considered as a condition upon the devise by Elizabeth Schoppa of the entire tract to her sister Rose Seyfarth, the above quoted provision fails because it does not state what consequence follows from the failure of the devisee or other subsequent taker of the property to comply with the condition. Absent a devise over, a devisee takes real property discharged of the condition, Smith v. Townsend, 32 Pa. 434 (devise 'upon this express condition, viz., that the owners * * * shall not build, nor suffer any building to be erected, in the garden spot on the south end of my said dwelling-house'); Matter of Donald's Estate, 149 Misc. 142, 267 N.Y.S. 505; see Annot.: 163 A.L.R. 1152.

Considered as an attempt to impose a restriction running with the land, the will provision fails because testatrix, Elizabeth Schoppa, owned no other real estate. The restriction she attempted to impose, therefore, did not fall within any of the classes defined in Korn v. Campbell, 192 N.Y. 490, 85 N.E. 687; Cf. Steinmann v. Silverman, 14 N.Y.2d 243, 251 N.Y.S.2d 1, 200 N.E.2d 192; Equitable Life Assurance Soc. of Unites States v. Brennan, 148 N.Y. 661, 43 N.E. 173; Pagano v. Kramer, 25 A.D.2d...