Hidalgo v. 4-34-68, Inc.

• Decision Date: 14 May 2014
• Parties: Anne Denisse HIDALGO, respondent, v. 4–34–68, INC., et al., defendants, Karen Bryant, appellant.
• Court: New York Supreme Court — Appellate Division

117 A.D.3d 798

988 N.Y.S.2d 64

2014 N.Y. Slip Op. 03491

Anne Denisse HIDALGO, respondent,

v. 4–34–68, INC., et al., defendants,Karen Bryant, appellant.

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

May 14, 2014.

Blustein, Shapiro, Rich & Barone, LLP, Goshen, N.Y. (Jay R. Morrow of counsel), for appellant.

Mitchell Troyetsky, New York, N.Y., for respondent.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, L. PRISCILLA HALL, and PLUMMER E. LOTT, JJ.

In an action, inter alia, to enforce a restrictive covenant, the defendant Karen Bryant appeals, as limited by her brief, from so much of a judgment of the Supreme Court, Orange County (Bartlett, J.), dated January 8, 2013, as, upon an order of the same court dated February 8, 2012, denying those branches of her motion which were for summary judgment dismissing the fourth and fifth causes of action and granting the plaintiff's cross motion for summary judgment on those causes of action, is in favor of the plaintiff and against her.

ORDERED that the judgment is modified, on the law, by deleting decretal paragraphs 5 through 10, 14, and 15; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff.

The plaintiff and the defendant Karen Bryant own adjoining parcels of property within a subdivision planned and developed by the defendant 4–34–68, Inc. (hereinafter the Grantor). The subdivision consists of four lots. Bryant purchased her lot, designated Lot number 4, in 2007. The plaintiff purchased her lot, designated Lot number 2, in 2005, and the recorded deed for that property contained a restrictive covenant which required, among other things, that she obtain approval from the Grantor regarding building height, design, landscaping, and location, prior to erecting her residence. This same covenant was found in the deed recorded with Lot number 3, but the deed recorded with Lot number 4, Bryant's property, contained a different covenant. The deed recorded with Bryant's property, rather than employing this language, included a restriction which stated that her house was to be “located per attached plan.” That attached plan, which was recorded with the deed, showed, among other things, the proposed house as set back 45 feet from the property line shared with the plaintiff's lot.

After Bryant obtained a building permit and staked out the location for her foundation footings, the plaintiff contacted the Grantor and reported that the foundation footings had been staked too close to the shared property line in violation of the restrictive covenant in Bryant's deed. The plaintiff thereafter notified Bryant and the building inspector. The building inspector issued an advisory notice indicating that the location of the foundation, which was 33 feet from the property line, was inconsistent with the building permit and advising Bryant that further construction without approval of the altered plans would be at her own risk. Later, after the plaintiff reported that work was still proceeding, the building inspector issued a stop work order directing Bryant to cease all construction. The plaintiff commenced the instant action, among other things, to enforce the restrictive covenant contained in the deed recorded with Bryant's property and to enjoin Bryant from erecting a house in violation of that covenant.

In May 2008, the building inspector issued another building permit, allowing the work to continue. Although the plaintiff challenged that action in a proceeding pursuant to CPLR article 78, the proceeding ultimately was dismissed. In the meantime, Bryant filed a pre-answer motion to dismiss the instant complaint insofar as asserted against her. The Supreme Court granted that motion in part and denied it in part, concluding, inter alia, that dismissal of the plaintiff's fourth and fifth causes of action, which sought injunctive relief, was not warranted. After discovery, Bryant moved for summary judgment dismissing these remaining causes of action and the plaintiff cross-moved for summary judgment on those causes of action.

Initially, we reject Bryant's assertion that the plaintiff lacked standing to commence this action. As the Supreme Court properly found, the evidence clearly and definitively shows that the restrictive covenant in Bryant's deed was part of a common development scheme created for the benefit of all property owners within the subdivision. As such, the plaintiff has standing to enforce the restrictive covenant at issue ( see Dever v. DeVito, 84 A.D.3d 1539, 1542, 922 N.Y.S.2d 646;Realis Dev. v. Neuberger, 6 A.D.3d 599, 600, 774 N.Y.S.2d 787;Westmoreland Assn. v. West Cutter Estates, 174 A.D.2d 144, 151, 579 N.Y.S.2d 413;Graham v. Beermunder, 93 A.D.2d 254, 258, 462 N.Y.S.2d 231).

We further reject Bryant's assertion that the Supreme Court erred in declining to dismiss the causes of action seeking injunctive relief on the ground that they had been rendered academic. As the plaintiff correctly argues, those causes of action were not rendered academic, despite the substantial completion of the home ( see Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn., 2 N.Y.3d 727, 729, 778 N.Y.S.2d 740, 811 N.E.2d 2;Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach, 98 N.Y.2d 165, 172, 746 N.Y.S.2d 429, 774 N.E.2d 193). Under the circumstances, the...