Uvanni v. CMB Builders, Inc.

• Court: New York Supreme Court — Appellate Division
• Citation: Uvanni v. CMB Builders, Inc., 343 N.Y.S.2d 954, 41 A.D.2d 1019 (N.Y. App. Div. 1973)
• Decision Date: 24 May 1973
• Parties: Frank W. UVANNI, Jr. and Gloria G. Uvanni, Appellants, v. CMB BUILDERS, INC., Respondent.

Page 954

343 N.Y.S.2d 954

41 A.D.2d 1019

Frank W. UVANNI, Jr. and Gloria G. Uvanni, Appellants, v. CMB BUILDERS, INC., Respondent.

Supreme Court, Appellate Division, Fourth Department.

May 24, 1973.

Cook & Ringrose, John G. Ringrose, Rome, for appellants.

Griffith & Pileckas, Joseph J. Pileckas, Rome, for respondent.

Before GOLDMAN, P.J., and DEL VECCHIO, WITMER, MOULE and CARDAMONE, JJ.

MEMORANDUM:

Plaintiffs and defendant own adjoining lots in Rome, New York, which are in a subdivision consisting of 298 lots encumbered by a covenant made in 1914 restricting the lots to residential purposes only. Defendant's property is located at the intersection of East Garden Street and Black River Boulevard, the latter being a major arterial highway running along the westerly edge of the subdivision. A large shopping center is located directly across from defendant's lot on Black River Boulevard; a New York State armory is a block north and a city fire station a block south. None of these is in the restricted subdivision. However, there was a medical office building located in the subdivision in the same block as plaintiffs' house when they bought it. Another medical building was erected in their block after they began living in the subdivision, and two or three years before trial, a two-story office building was erected on East Garden Street across the street from the front of their home; and plaintiffs did not object to either of these buildings. All three of these office building lots have frontage on Black River Boulevard. There has been no residential construction along the boulevard for at least the past 15 years and evidence was introduced tending to show that defendant's lot is not suitable for residential purposes. Defendant's use of the property is identical or similar in character to the previous encroachments and all the...