Normus Realty Corp. v. Disque

• Decision Date: 27 February 1964
• Citation: Normus Realty Corp. v. Disque, 247 N.Y.S.2d 143, 20 A.D.2d 277 (N.Y. App. Div. 1964)
• Parties: NORMUS REALTY CORP., Plaintiff-Respondent, v. Florence Coulter DISQUE et al., Defendants-Appellants, M. A. Gordon & Company, Inc., Elinor L. Gordon, John E. Scarff, Ellen B. Scarff, Carolyn S. Allers and Franciscan Sisters of The Poor, formerly The Sisters of The Poor of St. Francis, Defendants-Respondents, The City of New York, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 143

247 N.Y.S.2d 143

20 A.D.2d 277

NORMUS REALTY CORP., Plaintiff-Respondent, v. Florence Coulter DISQUE et al., Defendants-Appellants, M. A Gordon & Company, Inc., Elinor L. Gordon, John E. Scarff Ellen B. Scarff, Carolyn S. Allers and Franciscan Sisters of The Poor, formerly The Sisters of The Poor of St. Francis Defendants-Respondents, The City of New York, et al., Defendants.

Supreme Court, Appellate Division, First Department.

Feb. 27, 1964.

Monroe Goldwater, New York City, of counsel (Bernard Katz, New York City, with him on the brief; Goldwater & Flynn, New York City, attorneys), for defendants-respondents M. A. Gordon & Company, Inc., John E. Scarff, Ellen B. Scarff and Carolyn S. Allers.

Amend & Amend, New York City, for defendant-respondent Franciscan Sisters of the Poor, formerly the Sisters of the Poor of St. Francis.

Leo A. Larkin, Corp. Counsel, for defendant The City of New York.

Osborne A. McKegney, New York City, of counsel (Shanley & McKegney, New York City, attorneys), for defendants-appellants.

Before BREITEL, J. P., and RABIN, McNALLY, STEVENS and WITMER, JJ.

STEVENS, Justice:

This is an action by plaintiff-respondent Normus Realty Corp. (herein Normus) seeking a judgment cancelling and discharging as to real property owned by Normus, certain restrictive covenants affecting such property and the property of the defendants, declaring that Normus be released and discharged from such covenants, and that it has the right to erect a modern Class A multiple dwelling house upon such premises. Normus seeks to enjoin the defendants and each of them from asserting any claim under said restrictive covenants so as to prevent such erection. The court, in granting the relief sought, concluded there had been such substantial change in the neighborhood that 'the usefulness of the covenant had been destroyed and its objects and purposes [rendered] obsolete and no longer applicable.' The present appeal is taken from that determination by one group of defendants, herein referred to as appellants. There is a second group of defendants who denied certain allegations of the complaint and alleged as a contingent counterclaim the contention that if Normus is successful in the action they are entitled to the same relief and demanded judgment therefor. They are referred to herein as respondents.

In 1954 an action similar to the present one was brought. At that time the court denied the relief sought and concluded that conditions as they then existed had not rendered the covenants obsolete. The judgment entered was unanimously affirmed, without opinion (Normus Realty Corp. v. Heilbrun et al., 3 A.D.2d 657, 159 N.Y.S.2d 683). The tract of land involved is located in the Spuyten Duyvil area and was conveyed in 1919 by a single instrument, subject to the restriction that only private dwelling houses for the use of a single family would be erected on the various plots into which the acreage had been divided.

Since that time there have been numerous private single family dwellings erected and it has become a fine residential section. Within the restricted area no apartment buildings have been erected and the restrictions have been adhered to. However, all parties agree that outside of such boundaries extensive changes have taken place. What was formerly a quiet street or roadway has become the multilane Henry Hudson Parkway, and a number of large apartment buildings have been constructed within an eight block area of the property. At the time of the first application in 1954, 26 such buildings had been constructed and since that time 31 more have been completed. Of this 31, only 12 are on the west side of the Parkway and only 6 within five blocks of the restricted area. On the west of the area is the Henry Hudson River. To the north is a proposed park site and to the south is the Frances Shervier Home & Hospital. Normus' property fronts on the Henry Hudson Parkway and the residence thereon was erected in 1932, taken over in 1937 as a nursing home, and conducted as such until 1955. Normus purchased the property in 1946 with knowledge of and subject to the restrictive covenants. Normus' property has since been zoned to permit the erection of an apartment house, while the other properties remain zoned for single family dwellings. The property is presently assessed for $100,000, a sharp increase from prior assessments. The issue to be determined is whether the changes since 1954, together with the earlier changes, have caused such differences in the character of the area as to render the covenant obsolete and inequitable.

'Equity may refuse to enforce a restrictive covenant upon the ground of change of conditions only where it is established that the change is such that the restriction has become valueless to the property of the plaintiffs and onerous to the property of defendants.' Cummins v. Colgate Properties Corp., 2 Misc.2d 301, 306, 153 N.Y.S.2d 321, 326, aff'd 2 A.D.2d 749, 153 N.Y.S.2d 608 (Eager, J.). 'Inequity there may be in standing on the letter of a covenant when the neighborhood has so altered that the ends to be attained by the restriction have been frustrated by the years.' Evangelical Lutheran Church of the Ascension of Snyder v. Sahlem, 254 N.Y. 161, 167, 172 N.E. 455, 457. The burden of showing such change is upon the party attacking the covenant, in this case Normus. In support of its position Normus points out that many of the owners who themselves are subject to the restrictions have either consented to the proposed change or have not objected to it. At the hearing many owners testified that they had purchased their respective pieces of property with knowledge of the restriction, that they desired such restrictions maintained, and that one of the inducements in locating in that particular area was its fine residential character. Seven new single family dwellings have been erected since 1954. The fact that some have consented while others opposed is not of particular benefit to the...