Ford v. Fink

• Decision Date: 03 May 2011
• Citation: 2011 N.Y. Slip Op. 03800,924 N.Y.S.2d 94,84 A.D.3d 725
• Parties: Beth FORD, et al., appellants-respondents,v.David FINK, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

84 A.D.3d 725
924 N.Y.S.2d 94
2011 N.Y. Slip Op. 03800

Beth FORD, et al., appellants-respondents,
v.
David FINK, et al., respondents-appellants.

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

May 3, 2011.

[924 N.Y.S.2d 95]

Snyder & Snyder, LLP, Tarrytown, N.Y. (Frederick W. Turner of counsel), for appellants-respondents.Zarin & Steinmetz, White Plains, N.Y. (Michael D. Zarin and David J. Cooper of counsel), for respondents-appellants.PETER B. SKELOS, J.P., ARIEL E. BELEN, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

[84 A.D.3d 726] In an action, inter alia, for a judgment declaring that the planting of a row of trees on the defendant's property violates a restrictive covenant in a deed to that property, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered January 29, 2010, as granted those branches of the defendants' motion pursuant to CPLR 3211(a)(7) which were to dismiss the first, second, third, fifth, sixth, seventh, eighth, ninth, and tenth causes of action in the amended complaint, and the defendants cross-appeal, as limited by their brief, from so much of the same order as denied that branch of their motion pursuant to CPLR 3211(a)(7) which was to dismiss the fourth cause of action in the amended complaint.

ORDERED that the order is modified, on the law, by deleting the provisions thereof granting those branches of the defendants' motion pursuant to CPLR 3211(a)(7) which were to dismiss the first and ninth causes of action and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must “ ‘accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” ( Sokol v. Leader, 74 A.D.3d 1180, 1181, 904 N.Y.S.2d 153, quoting Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720; see Gershon v. Goldberg, 30 A.D.3d 372, 373–374, 817 N.Y.S.2d 322).

The Supreme Court erred in dismissing the first cause of action, seeking a judgment declaring that the defendants violated a restrictive covenant, the terms of which were incorporated into the amended complaint, barring them from erecting on their property any “hedge” exceeding five feet in height, and related injunctive relief. Because “the law favors the free and unobstructed use of real property,” a restrictive covenant “must be strictly construed against those seeking to

[924 N.Y.S.2d 96]

enforce it, and may not be given an interpretation extending beyond the clear meaning of its terms” ( Kaufman v. Fass, 302 A.D.2d 497, 498, 756 N.Y.S.2d 247, cert. denied 540 U.S. 1162, 124 S.Ct. 1173, 157 L.Ed.2d 1207; see Premium Point Park Assn. v. Polar Bar, Inc., 306 N.Y. 507, 512, 119 N.E.2d 360; Thrun v. Stromberg, 136 A.D.2d 543, 544, 523 N.Y.S.2d 163). However, the application of this rule “is subject to the general rule of construction that the intent of the parties is the paramount consideration” [84 A.D.3d 727] ( Rydberg v. Jennings Beach Assn., 69 A.D.2d 816, 817, 414 N.Y.S.2d 744, affd. 49 N.Y.2d 934, 428 N.Y.S.2d 676, 406 N.E.2d 491; see Bovin v. Galitzka, 250 N.Y. 228, 165 N.E. 273; Jennings Beach Assn. v....