Fleetwood Chateau Owners Corp. v. Fleetwood Garage Corp.

• Decision Date: 13 September 2017
• Citation: 153 A.D.3d 1238,61 N.Y.S.3d 287
• Parties: FLEETWOOD CHATEAU OWNERS CORP., respondent, v. FLEETWOOD GARAGE CORP., et al., appellants.
• Court: New York Supreme Court — Appellate Division

153 A.D.3d 1238

61 N.Y.S.3d 287

FLEETWOOD CHATEAU OWNERS CORP., respondent,

v.FLEETWOOD GARAGE CORP., et al., appellants.

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

Sept. 13, 2017.

Berry Law PLLC, New York, NY (Eric W. Berry of counsel), for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, NY (Steven Kent of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, and VALERIE BRATHWAITE NELSON, JJ.

In an action, inter alia, in effect, to enforce a restrictive covenant, the defendants appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Westchester County (Adler, J.), dated April 7, 2015, as denied that branch of their motion pursuant to CPLR 3211(a) which was to dismiss the first cause of action for lack of standing, and (2) so much of an order of the same court dated July 2, 2015, as granted that branch of the plaintiff's motion which was for summary judgment on the first cause of action.

ORDERED that the order dated April 7, 2015, is reversed insofar as appealed from, on the law, and that branch of the defendants' motion pursuant to CPLR 3211(a) which was to dismiss the first cause of action for lack of standing is granted; and it is further,

ORDERED that the order dated July 2, 2015, is reversed insofar as appealed from, on the law, and that branch of the plaintiff's motion which was for summary judgment on the first cause of action is denied; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The plaintiff and the defendant Fleetwood Garage Corp. (hereinafter Fleetwood Garage) own adjoining parcels of property in Mount Vernon. The defendant William Weinberg is the president of Fleetwood Garage. The plaintiff commenced this action, inter alia, to restrain the defendants from operating a commercial parking garage on the property owned by Fleetwood Garage. The plaintiff predicates its right to this relief upon a restrictive covenant which prohibits, among other things, the erection of any nonresidential buildings, including any garage except one for the exclusive use of the occupant or occupants of any building erected on the property.

The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, inter alia, on the ground that the plaintiff lacked standing to enforce the restrictive covenant. In an order dated April 7, 2015, the Supreme Court, among other things, denied the defendants' motion as to the first cause of action, which was, in effect, to enforce the restrictive covenant. As relevant to these appeals, the court found that the plaintiff had standing to enforce the restrictive covenant because the covenant was part of a common development scheme. While the defendants' motion to dismiss was pending, the plaintiff moved, inter alia, for summary judgment on the first cause of action. In an order dated July 2, 2015, the court, among other things, awarded the plaintiff summary judgment on the first cause of action. The defendants appeal from both orders, arguing that the court erred in concluding that the plaintiff had standing to enforce the covenant.

The covenant that the plaintiff seeks to enforce is found in a deed dated February 25, 1924, in which Charles H. Farrington conveyed an apparently undeveloped parcel of land to Ferdinand J. Thill, subject to numerous restrictions, including the one at issue here. In 1929, a seven-story apartment building was built upon a portion of the parcel. In 1931, a private parking garage was built upon another portion of the parcel. The record does not establish the complete chain of title following the 1924 deed, but, on April 7, 1988, 651 North Terrace Avenue Associates was then in ownership of the parcel or a portion of the parcel, and it conveyed its interest in the land to Hudson 651 Associates (hereinafter Hudson). The deed conveying the property to Hudson contained no reference to the covenant set forth in the 1924 deed. Subsequently, by deed dated May 18, 1990, Hudson conveyed a portion of the parcel, which included the apartment building, to the plaintiff. On September 23, 1991, Hudson conveyed the remainder of the parcel, which included the garage, to Fleetwood Garage. Neither of the deeds conveying the property from Hudson contained any reference to the covenant set forth in the 1924 deed.

Restrictive covenants, also categorized as negative easements, restrain servient landowners from making otherwise lawful uses of their property (see Witter v. Taggart, 78 N.Y.2d 234, 237, 573 N.Y.S.2d 146, 577 N.E.2d 338 ; Huggins v. Castle Estates, 36 N.Y.2d 427, 430, 369 N.Y.S.2d 80, 330 N.E.2d 48 ). "However, the law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them" ( Witter v. Taggart, 78 N.Y.2d at 237, 573 N.Y.S.2d 146, 577 N.E.2d 338 ; see Huggins v. Castle Estates, 36 N.Y.2d at 430, 369 N.Y.S.2d 80, 330 N.E.2d 48 ; Butler v. Mathisson, 114 A.D.3d 894, 895, 981 N.Y.S.2d 441 ).

Here, the record does not show whether Farrington retained a dominant estate which benefitted from the covenant at issue, or that the other legal requirements were present to establish that the subject covenant ran with the land so as to be enforceable against Thill's successors in interest (see 328 Owners Corp. v. 330 W. 86 Oaks Corp., 8 N.Y.3d 372, 382–383, 834 N.Y.S.2d 62, 865 N.E.2d 1228 ; Orange and Rockland Util. v. Philwold Estates, 52 N.Y.2d 253, 262, 437 N.Y.S.2d 291, 418 N.E.2d 1310 ; Neponsit Prop. Owners' Assn. v. Emigrant Indus. Sav. Bank, 278 N.Y. 248, 254–255, 15 N.E.2d 793 ). Nonetheless, for the purposes of their motion, the defendants do not contest whether the restriction has run with the land, but instead, dispute the plaintiff's...