Gordon v. Incorporated Village of Lawrence

• Decision Date: 19 October 1981
• Citation: Gordon v. Incorporated Village of Lawrence, 84 A.D.2d 558, 443 N.Y.S.2d 415 (N.Y. App. Div. 1981)
• Parties: Jay F. GORDON et al., Appellants, v. INCORPORATED VILLAGE OF LAWRENCE, New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 415

443 N.Y.S.2d 415

84 A.D.2d 558

Jay F. GORDON et al., Appellants, v. INCORPORATED VILLAGE OF LAWRENCE, New York, Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 19, 1981.

Phillips, Nizer, Benjamin, Krim & Ballon, New York City (Jay F. Gordon pro se, of counsel), for appellants.

Jerome Cooper, Valley Stream, for respondent.

Before DAMIANI, J. P., and LAZER, GULOTTA and MARGETT, JJ.

MEMORANDUM BY THE COURT.

In an action for a permanent injunction, which was submitted to the court for determination upon a "stipulation of undisputed facts", plaintiffs appeal from a judgment of the Supreme Court, Nassau County, entered November 17, 1980, which dismissed the complaint.

Judgment reversed, on the law, without costs or disbursements, injunction granted, and the defendant is permanently enjoined from using the subject parcel as a parking lot.

Since February of 1969, the plaintiffs have been the owners of a certain parcel of land in the Village of Lawrence, on which is located their one-family residence. Subsequently, the defendant village acquired a parcel of land immediately adjacent to the plaintiffs' property and in or about July of 1976 demolished the existing one-family dwelling which had been situated thereon. The village has since indicated that it intends to use this parcel as a parking lot, whereupon the plaintiffs commenced this action for a permanent injunction precluding such use.

The stipulated facts establish that a former owner of the tract of land encompassing both parcels created a uniform scheme for the development of the entire tract through the use of restrictive covenants limiting any improvement of the land to the erection of private residences. It is undisputed that the prior recorded deeds in the direct chain of title to both the plaintiffs' and the defendant's parcels contain such restrictions. These restrictions are binding on all subsequent grantees with notice, and may be enforced by the owner of any parcel located within the restricted area (see Huggins v. Castle Estates, 36 N.Y.2d 427, 369 N.Y.S.2d 80, 330 N.E.2d 48; Chesebro v. Moers, 233 N.Y. 75, 134 N.E. 842; Korn v. Campbell, 192 N.Y. 490, 85 N.E.2d 687; see, also, Brandwein v. Serrano, 72 Misc.2d 95, 338 N.Y.S.2d 192). Nevertheless, Special Term has declined to enforce the restriction on the ground that the plaintiffs have acquiesced to a prior violation, i. e., the construction in 1978 of two tennis courts upon a parcel of land adjoining the plaintiffs' property on the side opposite the proposed parking lot.

In our view, the foregoing is insufficient. The plaintiffs are entitled to ignore inoffensive violations of the restriction without forfeiting their right to restrain others which they find offensive (see Rowland v. Miller, 139 N.Y. 93, 34 N.E. 765; Cilberti v. Angilletta, 61 Misc.2d 13, 304 N.Y.S.2d 673; de Lima v. Mitchell, 49 Misc. 171, 98 N.Y.S. 811; see, also, Chesebro v. Moers, supra).

Alternatively, defendant asserts that the restriction is unenforceable since the character of the neighborhood has changed substantially. We disagree. The predominantly residential character of...