HIDDEN RIDGE AT KUTSHER'S COUNTRY CLUB HOMEOWNER'S ASSOCIATION, INC. v. Chasin

• Decision Date: 06 December 2001
• Citation: 289 A.D.2d 652,734 N.Y.S.2d 292
• Court: New York Supreme Court — Appellate Division
• Parties: HIDDEN RIDGE AT KUTSHER'S COUNTRY CLUB HOMEOWNER'S ASSOCIATION, INC., Respondent,<BR>v.<BR>JACK CHASIN, Appellant.

289 A.D.2d 652

734 N.Y.S.2d 292

HIDDEN RIDGE AT KUTSHER'S COUNTRY CLUB HOMEOWNER'S ASSOCIATION, INC., Respondent,

v.JACK CHASIN, Appellant.

Mugglin, J.

Decided December 6, 2001.

Cardona, P. J., Mercure, Peters and Lahtinen, JJ., concur.

Mugglin, J.

In 1997, defendant purchased a condominium unit in a complex known as Hidden Ridge, located at Kutsher's Country Club in the Town of Thompson, Sullivan County. Plaintiff is a not-for-profit corporation created for the purpose of maintaining and administering the common property and, inter alia, administering and enforcing the covenants and restrictions established in the developer's Declaration of Covenants, Restrictions, Easements, Charges and Liens made in April 1985 (hereinafter the Declaration). By purchasing condominium unit 92, defendant mandatorily became a member of plaintiff, subject to all of the aforesaid covenants and restrictions. Plaintiff owns all of the "common lands" surrounding each condominium unit to which the restrictions apply.

In early 1998, defendant submitted to plaintiff's Board of Directors a plan to construct a 12-foot by 16-foot wooden deck. Although this initial plan was rejected by the Board, on July 2, 1998, the Board, in writing, authorized defendant to construct a 10-foot by 12-foot removable wooden platform as a patio upon the condition that he obtain the written consent of his three nearest neighbors. Thereafter, on July 6, 1998, defendant began construction of a patio consisting of concrete blocks on a sand base measuring 10 feet by 20 feet. On July 7, 1998, defendant received written instructions from the Board to cease construction until the matter could be reviewed by it. Plaintiff immediately commenced this action seeking a permanent injunction and, when an application by plaintiff for a preliminary injunction was denied, defendant completed the patio.

Following a two-day nonjury trial, Supreme Court granted plaintiff's application for a permanent injunction and ordered defendant to remove the patio and return the ground to its original condition within 30 days. Defendant appealed, and Supreme Court granted an order staying execution of its judgment pending appeal.

We affirm. Article VII of the Declaration provides, inter alia, as follows: "No building, fence, wall or other structure, or change or alteration to the exterior of the Homes shall be commenced, erected or maintained upon The Properties, nor shall any exterior addition to or change or alteration thereto be made until the plans and specification * * * shall have been submitted to and approved in writing as to harmony of external design and topography by the Board." Defendant's principal argument on appeal is that the Declaration is a restrictive covenant and plaintiff is not entitled to enforce it absent clear and convincing evidence; and, since Supreme Court employed a preponderance of the evidence standard, reversible error occurred. We reject this argument.

Defendant has fee ownership only to the condominium unit and the land on which it sits. The property, commencing at his exterior walls, is common property in which all the...