Irish v. Besten
| Decision Date | 22 February 1990 |
| Citation | 551 N.Y.S.2d 659,158 A.D.2d 867 |
| Parties | James M. IRISH, Jr., Respondent, v. Leroy Den BESTEN, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Russell H. Baller, Jr., Albany, for appellant.
Tabner & Laudato (Steven W. Kraus, of counsel), Albany, for respondent.
Before MAHONEY, P.J., and WEISS, LEVINE, MERCURE and HARVEY, JJ.
Appeal from a judgment and order of the Supreme Court (Connor, J.), entered January 24, 1989 in Columbia County, which, inter alia, granted plaintiff's motion for summary judgment.
Plaintiff commenced this action seeking to enforce certain restrictive covenants contained in a deed by which defendant purchased from plaintiff two parcels of land located in a cul-de-sac real estate development entitled "White Silo Estates" in the Town of Schodack, Rensselaer County. The deed conveying the parcels contained three restrictive covenants which, inter alia, restricted the use of the subject property to "residential purposes only" and was to be improved "only by a single family residential dwelling together with normal accessory structures". Nonetheless, defendant subsequently dedicated to the Town a proposed 50-foot-wide right-of-way which would traverse over defendant's two lots in the development. Defendant then submitted a concept plan to extend the development roadway through his two lots to serve as access to land owned by defendant located north of the development.
In his complaint, plaintiff sought, among other things, a declaration that the restrictive covenants applied to defendant and that the proposed construction of the roadway violated said covenants. Plaintiff also sought to enjoin defendant from using said roadway. Following joinder of issue, the parties cross-moved for summary judgment. Finding that the dedication and proposed use of defendant's lots violated the covenant to the common restrictions as set forth in defendant's deed, Supreme Court granted plaintiff's motion for summary judgment and denied defendant's cross motion, 142 Misc.2d 183, 536 N.Y.S.2d 956. Defendant now appeals.
Initially, we reject defendant's contention that plaintiff did not have standing to institute this action. It is undisputed on the record that plaintiff owned two of the parcels contained in the development at the time he commenced this action. Therefore his standing to enforce the restrictive covenants that are a part of the general plan of the development is apparent (see, Vogeler v. Alwyn Improvement Corp., 247 N.Y. 131, 136, 159 N.E. 886; Chesebro v. Moers, 233 N.Y. 75, 134 N.E. 842).
Turning to the merits, it is our view that Supreme Court...
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Dever v. Devito
...to enforce the restrictive covenants against any other individual property owner within the development ( see Irish v. Besten, 158 A.D.2d 867, 867, 551 N.Y.S.2d 659 [1990]; Matter of Van Euclid Co. v. Sargent, 97 A.D.2d 913, 914–915, 470 N.Y.S.2d 750 [1983] ). We are similarly unpersuaded t......
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Pelosi v. Wailea Ranch Estates
...Management Corp., 128 N.H. 336, 512 A.2d 434 (1986); Irish v. Besten, 142 Misc.2d 183, 536 N.Y.S.2d 956 (1989), aff'd, 158 A.D.2d 867, 551 N.Y.S.2d 659 (1990). In the instant case, the restrictive covenant in question is clear and unambiguous and precludes construction of a roadway and tenn......
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Kumar v. Franco
...at 911–912, 693 N.Y.S.2d 651 ; compare Irish v. Besten, 142 Misc.2d 183, 185–186, 536 N.Y.S.2d 956 [Sup.Ct., Columbia County 1989], affd 158 A.D.2d 867, 868, 551 N.Y.S.2d 659 [3d Dept. 1990] ). As to the issue of whether the driveway is an "accessory structure" such that approval by the Com......
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Cody v. Anthony Fabiano and Sons Inc.
...that they were entitled to summary judgment (see, e.g., Korenman v. Zaydelman, 237 A.D.2d 711, 654 N.Y.S.2d 452, 453; Irish v. Besten, 158 A.D.2d 867, 868, 551 N.Y.S.2d 659; cf., Gitlen v. Gallup, 241 A.D.2d 856, 660 N.Y.S.2d 500). Also without merit is defendants' contention that they were......