Wicks v. Pat Pallone Co.

• Decision Date: 28 December 1965
• Citation: 48 Misc.2d 734,265 N.Y.S.2d 732
• Parties: Philip S. WICKS, June E. Wicks and Marian M. Shaw, Plaintiffs, v. PAT PALLONE CO., Inc., and Lewiston Builders, Inc., Defendants. Elmer SHAW, Plaintiff, v. PAT PALLONE CO., Inc., and Lewiston Builders, Inc., Defendants.
• Court: New York Supreme Court

Page 732

265 N.Y.S.2d 732

48 Misc.2d 734

Philip S. WICKS, June E. Wicks and Marian M. Shaw, Plaintiffs, v. PAT PALLONE CO., Inc., and Lewiston Builders, Inc., Defendants.

Elmer SHAW, Plaintiff, v. PAT PALLONE CO., Inc., and Lewiston Builders, Inc., Defendants.

Supreme Court, Trial and Special Term, Onondaga County.

Dec. 28, 1965.

Estabrook, Estabrook, Burns & Hancock, Syracuse, for plaintiffs.

Bond, Schoeneck & King, Syracuse, for defendants.

JAMES H. O'CONNOR, Justice.

The plaintiffs in both actions seek a judgment in the nature of an injunction enjoining the defendants herein from erecting any structure on property owned by them other than a detached single family dwelling pursuant to certain restrictions and covenants contained in prior deeds to the property in question and ratified by an agreement entered into by the plaintiffs, Wicks, and a prior grantor of the defendants herein. The actions further seek judgment directing and ordering that the defendants remove the structures constructed by them prior to the institution of these actions in violation of the aforesaid restrictions and covenants. Thirdly, the plaintiffs seek damages for the alleged wrongful acts of the defendants in violating the covenants.

Prior to the actual trial of these actions a motion and cross-motion were made by the parties herein for summary judgment. The plaintiffs sought summary judgment for the injunction desired and the defendants sought summary judgment dismissing the complaints and declaring the restrictions null and void. The Honorable John H. Farnham, J. S. C., by decision dated June 29, 1964 denied both motions and thereafter trial was had before this Court without a jury.

Succinctly stated, the facts are as follows: On October 14, 1949, one Peter F. Esposito conveyed a portion of land owned by him in former Farm Lot No. 78 of Onondaga Reservation, City of Syracuse, County of Onondaga, to Philips S. Wicks and June E. Wicks, two of the plaintiffs in one of these actions. The deed from Esposito to Wicks contained the following restrictions:

'(a) That all lots in said University Manor Tract according to said maps now filed and hereafter to be filed shall be known and described as residential lots.

'That no structures shall be commenced, erected, altered, placed or permitted to remain on any residential building plot other than one detached single-family dwelling not to exceed two and one-half stories in height and a private garage for not more than three cars which shall be attached to the dwelling or an integral part thereof, and such other outbuildings, walls and fences incidental to residential use as may be authorized and approved by the architectural committee; it being understood that one residential building plot shall mean either a lot shown on a filed map of the University Manor Tract or a plot resulting from a division of lots in said tract with a width and depth approximately the same as or greater than of either of the original lots used to make such division and in compliance with paragraph (d) below.

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'And it is further mutually covenanted, bargained and agreed that these covenants are to run with the land and shall be binding on all parties and all persons claiming under them until January 1, 1975, at which time said covenants shall be automatically extended for successive periods of ten years unless by a vote of the then record owners of a majority of the lots in said University Manor Tract it is agreed to change said covenants in whole or in part.

'That if the parties hereto, or any of them, or their successors, heirs or assigns, shall violate or attempt to violate any of the covenants herein, it shall be lawful for any other person or persons owning any real property situated in said development or subdivision to prosecute any proceedings in law or in equity against the person or persons violating or attempting to violate any such covenant and either to prevent him or them from so doing or to recover damages or other dues for such violation.'

In February of 1950 the same Peter F. Esposito conveyed a certain parcel of land contiguous to the Wicks property to Nicholas Zerrillo and Anthony Zerrillo. This property was in the same Farm Lot as that conveyed to the Wicks. The deed to Nicholas and Anthony Zerrillo contained the following restrictions:

'Subject to the conditions and restrictions contained in a deed from Peter F. Esposito to Philip S. Wicks and June E. Wicks, dated October 14, 1949 and recorded in the Onondaga County Clerk's Office on October 17, 1949 in Book of Deeds 1410, at page 52. etc.'

A few days after the conveyance of Esposito to Zerrillos, the plaintiffs, Philip S. Wicks and June E. Wicks, entered into an agreement in writing with Nicholas Zerrillo and Anthony Nerrillo. This agreement referred to the conditions and restrictions in the deed from Esposito to Wicks and made mention of a track known as University Manor Tract. The agreement removed the restrictions as to certain greenhouses located in the western portion of the Zerrillos' property. However, the agreement ratified the conditions and restrictions contained in the deed from Esposito to Wicks stating:

'It is further agreed by the parties hereto that the conditions and restrictions contained in the warranty deed dated October 14, 1949 between Peter F. Esposito, as grantor, and Philip S. Wicks and June E. Wicks, as grantees, and recorded in the Onondaga County Clerk's Office on October 17, 1949, in Book of Deeds 1410, at page 52, etc., shall remain the same as contained therein except as modified by this agreement.'

There was no modification of the covenant restricting the erection of any building on the property owned by the parties to said agreement other than a single family dwelling.

The agreement however attempted to define the so-called University Monor Tract and did so by metes and bounds although no mention in the description was made that a tract map had been filed or what lots in the alleged tract were affected by the restrictions.

Plaintiffs Wicks subsequently conveyed a portion of their premises received from Esposito to Elmer Shaw and Marian M. Shaw, the other plaintiffs, in these actions.

In 1953, Anthony Zerrillo conveyed his interest in the property acquired from Esposito, to Nicholas Zerrillo. This deed also made mention of the restrictions and conditions contained in the deed from Peter F. Esposito to Wicks aforesaid.

In 1961, Nicholas Zerrillo conveyed a portion of his property in Farm Lot 78 to Pat Pallone Co., Inc., one of the defendants herein, containing some 2.975 acres. This deed makes no mention of the above mentioned restrictions.

In December of 1962 a successor Corporation to Pat Pallone Co., Inc. conveyed a portion of its property to the defendant, Lewiston Builders, Inc. and this deed carried the words, 'Subject to restrictions and easements of record.'

On October 24, 1963, the defendants herein commenced the construction of two family houses on the real property contiguous to the Wicks property. The defendants had prepared and filed a tract map of their property which was described as the Colvin Terrace Tract, amended. This tract consists of part of the Zerrillo property, which plaintiffs claim is bound by the restrictive covenants. At the trial it was indicated that Lots 1, 2, 3, 4, 5, 6, 19, 20, 21, 22 and part of Lots 7 and 18 of the Colvin Terrace Tract, amended, were part of the alleged University Manor Tract.

The summons and complaint and the testimony before this Court indicate that the plaintiffs are attempting to establish a restrictive covenant as to the use to which the defendants may put their property, under the theory that there was in existence from a prior grantor a general scheme or plan of development for the lands and property now owned by the respective parties to these actions. However, no map was ever introduced in evidence at the trial which indicated that Peter F. Esposito had in fact done anything to establish University Manor Tract except for certain preliminary sketches which he had made by one J. W. Cottrell.

Restrictive covenants may come into being and have validity in more than one way. In Korn v. Campbell, 192 N.Y....