Regan v. Tobin

Decision Date12 July 1982
Citation89 A.D.2d 586,452 N.Y.S.2d 249
PartiesEdward J. REGAN, Appellant, v. William R. TOBIN et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Marylou B. Regan, South Setauket (Edward J. Regan pro se, of counsel), for appellant.

Fred M. Schwartz, Jericho, for respondents.

Before DAMIANI, J. P., and LAZER, MANGANO and GIBBONS, JJ.

MEMORANDUM BY THE COURT.

In an action to enforce restrictive covenants, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, dated October 21, 1980, as granted defendants' motion pursuant toCPLR 3212 for summary judgment and, in effect, denied the branch of his cross motion which was for summary judgment on his complaint.

Order reversed insofar as appealed from, on the law, with $50 costs and disbursements, defendants' motion for summary judgment is denied and the branch of plaintiff's cross motion which was for summary judgment on his complaint is granted to the extent of directing defendants to remove their stockade fence.

The defendants' corner lot and the plaintiff's lot adjacent to it in the Strathmore subdivision in Stony Brook, are both subject to restrictive covenants limiting the types of fences permissible in the subdivision. The covenants specifically forbid stockade fences on all lots and fabricated fences on corner lots. On other lots, fabricated fences are permitted in the rear yards if they do not exceed 42 inches in height and at the corners of any lot if they do not exceed 10 feet in length on any side and 3 feet in height. The covenants provide an exception to the extent necessary to conform to zoning requirements for fences around swimming pools.

The Brookhaven Town Code requires outdoor swimming pools to be protected by fences between four and six feet in height above grade (Brookhaven Town Code, § 85-429, subds B, C). No such pool may be located in a front yard or within 15 feet of any outside or rear lot line (Brookhaven Town Code, § 85-429, subd D). The Code does not prohibit the use of stockade fences. The portable swimming pool the defendants have installed in the rear yard of their lot is 16 feet in diameter and has a depth of 3 feet. To meet the Code requirement that such a pool be fenced, the defendants have installed a six-foot-high rear yard stockade fence. Asserting that the fence blocks his view of a park, the plaintiff instituted this action to enforce the restrictive covenants and to compel...

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  • Friends of Shawangunks, Inc. v. Knowlton
    • United States
    • New York Court of Appeals Court of Appeals
    • March 19, 1985
    ...Vil. of Lawrence, 56 N.Y.2d 1003, 453 N.Y.S.2d 683, 439 N.E.2d 398, affg. 84 A.D.2d 558, 559, 443 N.Y.S.2d 415; Regan v. Tobin, 89 A.D.2d 586, 587, 452 N.Y.S.2d 249), and the issuance of a permit for a use allowed by a zoning ordinance may not be denied because the proposed use would be in ......

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