Nature Conservancy v. Congel

• Decision Date: 19 March 1999
• Citation: 689 N.Y.S.2d 317,253 A.D.2d 248
• Parties: , 1999 N.Y. Slip Op. 2408 The NATURE CONSERVANCY, et al., Plaintiffs, Madalyn Eisenberg, Henry Eisenberg, M.D., Carol Dana and Sidney T. Dana, M.D., Appellants, v. Scott CONGEL, Milestone Materials, Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 317

689 N.Y.S.2d 317

253 A.D.2d 248, 1999 N.Y. Slip Op. 2408

The NATURE CONSERVANCY, et al., Plaintiffs, Madalyn Eisenberg, Henry Eisenberg, M.D., Carol Dana and Sidney T. Dana, M.D., Appellants, v. Scott CONGEL, Milestone Materials, Respondents, et al., Defendant.

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

March 19, 1999.

Robert Smith, for respondent Scott Congel.

Donald Snider, New York City, for respondent Milestone Materials.

PRESENT: DENMAN, P.J., GREEN, PINE and CALLAHAN, JJ.

CALLAHAN, J.:

Madalyn Eisenberg, Henry Eisenberg, M.D., Carol Dana and Sidney T. Dana, M.D. (plaintiffs) are the owners of real property for whose benefit a restrictive covenant was imposed in a deed from the predecessor in title of Scott Congel and Milestone Materials (Milestone) (collectively defendants). At issue on this appeal is whether plaintiffs may enforce the covenant as third-party beneficiaries despite the absence of any privity between the grantor and plaintiffs. Supreme Court concluded that plaintiffs are "strangers to the deed" and could not enforce the restrictive covenant. We disagree.

Plaintiffs' residential property is located on Woodchuck Hill Road in the Town of DeWitt. It is adjacent to a picturesque rural area known as the "Buffer Lands", containing White Lake swamp, wetlands and forest with some rare and endangered species. The area was previously owned by the Allied Corporation (Allied), which operated a quarry that was separated from the residential lots on Woodchuck Hill Road by the undeveloped Buffer Lands. In 1986 Allied sold its property to General Crushed Stone Company (General Crushed Stone), which subsequently became Milestone by merger. The deed from Allied to General Crushed Stone contained the following restrictive covenant that is at issue on appeal:

"Buffer Lands. The 'Buffer Lands' are that part of the premises hereby conveyed lying northerly of the 'Approx. Escarpment Line' as shown on a map entitled 'The Solvay Process Company, New York, Syracuse Plant, Inventory Map--Jamesville Quarry, Land in Towns of Dewitt and Manlius, 31949' (said map to be filed in the Office of the Onondaga Clerk simultaneously with the recording of this deed). The Grantee covenants on behalf of itself, its successors and assigns, that so long as any part of the premises hereby conveyed is used as a quarry, the Buffer Lands will remain in their natural state. This covenant shall be a covenant running with the land, binding on and enforceable against the Grantee, its successors and assigns. This covenant is for the benefit of and enforceable by all parties owning property adjoining the premises hereby conveyed and the Grantor, its successors and assigns. This covenant is also enforceable by Nature Conservancy."

In 1997 Congel purchased 461.45 acres of the Buffer Lands from Milestone. Congel intended to develop the property by constructing thereon a personal residence and erecting a perimeter fence. The deed conveying the premises to Congel recited that it was "[s]ubject to all other title matters of record."

Plaintiffs ¹ commenced this action to enforce the restrictive covenant in the Allied deed and to enjoin Congel from destroying the "natural state" of the Buffer Lands by constructing a residence and erecting barriers thereon. Plaintiffs moved for a preliminary injunction, and each defendant cross-moved to dismiss the complaint.

In a lengthy written decision, Supreme Court agreed with defendants that plaintiffs could not enforce the restrictive covenant because they are strangers to the deed. In declining to follow this Court's holding in Zamiarski v. Kozial, 18 A.D.2d 297, 239 N.Y.S.2d 221, the court noted that "in the subsequent thirty-four years no other appellate court has cited Zamiarski to reaffirm support for said legal position" and concluded that such decision "appears to be in direct contravention to the Court of Appeals holding in [Matter of Estate of Thomson v. Wade, 69 N.Y.2d 570, 516 N.Y.S.2d 614, 509 N.E.2d 309 ]". The court further concluded that the covenant does not run with the land and is unenforceable by injunction by reason of RPAPL 1951(1). The court denied plaintiffs' motion and granted defendants' cross motions. We conclude that the order should be reversed, plaintiffs' motion granted, defendants' cross motions denied and the complaint reinstated. "[T]he law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them" (Witter v. Taggart, 78 N.Y.2d 234, 237-238, 573 N.Y.S.2d 146, 577 N.E.2d 338; see, Huggins v. Castle Estates, 36 N.Y.2d 427, 430, 369 N.Y.S.2d 80, 330 N.E.2d 48; Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N.Y. 242, 249, 196 N.E. 42). Such covenants will be enforced only where the dominant landowner has established their existence by clear and convincing proof (see, Witter v. Taggart, supra, at 238, 573 N.Y.S.2d 146, 577 N.E.2d 338; Huggins v. Castle Estates, supra, at 430, 369 N.Y.S.2d 80, 330 N.E.2d 48).

In Korn v. Campbell, 192 N.Y. 490, 495-496, 85 N.E. 687, rearg. denied 193 N.Y. 626, 86 N.E. 1126, the Court of Appeals enumerated three classes of cases in which restrictive covenants may be enforced by persons other than the grantor or covenantee. Those classes are: (1) a uniform restriction imposed by a common grantor as part of a general plan or scheme for the benefit of all the grantees in a real estate subdivision or development may be enforced by all such grantees against each other; (2) a covenant imposed for the benefit of the grantor's remaining land may be enforced by the grantor against any grantees of the restricted land; and (3) mutual covenants between the owners of adjoining lands producing corresponding benefits to such owners may be enforced by the owners or their assigns against each other. Relying upon Korn v. Campbell (supra), Supreme Court concluded that, because plaintiffs did not fall within any of the three classes, the covenant was a mere "gratuitous restriction" on behalf of persons not involved in the deed. That was error. The Court in Korn went on to note that it did "not mean to intimate that special circumstances may not exist in which a case not within the three classes above referred to may present considerations which would justify the enforcement of such a covenant in a court of equity" (Korn v. Campbell, supra, at 498, 85 N.E. 687).

Subsequently, New York courts adopted the view that an owner of neighboring land, for whose benefit a restrictive covenant is imposed by a grantor, may enforce the covenant as a third-party beneficiary despite the absence of any privity of estate between the grantor and the neighbor (see, Vogeler v. Alwyn Improvement Corp., 247 N.Y. 131, 135-137, 159 N.E. 886; Zamiarski v. Kozial, supra, at 299, 239 N.Y.S.2d 221). In Zamiarski, supra, at 299, 239 N.Y.S.2d 221, our Court held that "New York courts are now committed to the view that the third-party beneficiary is entitled to enforce the restrictive covenant in a situation of this kind". Our Court went on to state:

"Upon the adoption of that theory by the New York courts, the enforcibility [sic ] of restrictive covenants was no longer limited to the three classes enumerated in Korn v. Campbell (supra). The question then became one solely of intention. The owner of the land intended to be benefited had the right to enforce the covenant, even though he did not come within any one of...