Grossbaum v. Dil-Hill Realty Corp.

• Decision Date: 13 June 1977
• Docket Number: DIL-HILL
• Citation: Grossbaum v. Dil-Hill Realty Corp., 395 N.Y.S.2d 246, 58 A.D.2d 593 (N.Y. App. Div. 1977)
• Parties: Robert GROSSBAUM et al., Appellants-Respondents, v.REALTY CORPORATION et al., Respondents, and Town of Greenburgh, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 246

395 N.Y.S.2d 246

58 A.D.2d 593

Robert GROSSBAUM et al., Appellants-Respondents, v. DIL-HILL REALTY CORPORATION et al., Respondents and Town of Greenburgh, Respondent-Appellant.

Supreme Court, Appellate Division, Second Department.

June 13, 1977.

Greenfield, Stein & Weisinger, New York City (Max M. Greenfield, Kenneth L. Stein and Norman A. Senior, New York City, of counsel), for appellants-respondents.

Joel H. Sachs, Town Atty., Elmsford (Ruth E. Roth, Elmsford, on the brief), for respondent-appellant.

Plunkett, Wetzel & Jaffe, New York City (William A. Wetzel, New York City, of counsel), for respondent Bd. of Ed. Union Free School Dist. No. 6.

Before MARTUSCELLO, J. P., and LATHAM, MARGETT and O'CONNOR, JJ.

MEMORANDUM BY THE COURT.

In an action inter alia to extinguish a restrictive covenant prohibiting the sale or use of intoxicating liquor, (1) plaintiffs appeal from (a) so much of a judgment of the Supreme Court, Westchester County, dated February 8, 1977, as, after a nonjury trial, dismissed the complaint and (b) an order of the same court, dated March 30, 1977, which, inter alia, denied their motion pursuant to CPLR 4404 for judgment in their favor or for a new trial and (2) defendant Town of Greenburgh cross-appeals from the balance of the judgment, which held that it was bound by the release of the restrictive covenant and lacked standing to resist plaintiffs' action.

Judgment and order affirmed, with one bill of costs to respondent The Board of Education Union Free School District No. 6, payable by plaintiffs.

Plaintiffs are the owners of two lots and portions of two adjacent lots which are part of a tract of land originally owned by Gerald Fountain and members of his family. Between 1912 and 1921 Fountain divided the property into 10 numbered lots and sold them subject to restrictive covenants which, inter alia, proscribed the sale or use of intoxicating liquor on any portion of the premises conveyed. When plaintiffs purchased their lots the restrictive covenant was included in the deeds. Plaintiffs intend to construct a liquor-selling restaurant on their property.

Subdivision 2 of section 1951 of the Real Property Actions and Proceedings Law provides that a restrictive covenant may be extinguished if it is found to be "of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason".

The party seeking to extinguish a restriction upon the ground of change of condition must establish not only that the restriction is valueless to the property of those seeking to enforce the restriction, but that it is onerous to the plaintiff (Clintwood Manor v. Adams, 29 A.D.2d 278, 287 N.Y.S.2d 235, affd. 24 N.Y.2d. 759, 299 N.Y.S.2d 853, 247 N.E.2d 667; Normus Realty Corp. v. Disque, 20 A.D.2d 277, 247 N.Y.S.2d 143, affd. 16 N.Y.2d 912, 264 N.Y.S.2d 700,...