25 Misc. 2d 101 | N.Y. Sup. Ct. | 1960
This action concerns properties within a tract of 133 acres originally acquired by defendant Harbour Green Estates, Inc. The president of that corporation and of defendants Ivy-Larel Corp. and Creston-Springs Corp., which were building corporations, was defendant Allan V. Rose. For convenience, all four are referred to hereafter as Rose Interests, it being conceded that their relationship was such that the acts of one bind the others. The 133-acre tract was subdivided into five sections. Section 3 consisted entirely of interior parcels. All of the other sections included beachfront parcels. Section 1 is of importance in the action only in that, to conform to Federal Housing Authority eligibility requirements, a declaration covering that section was filed which, among other things, prohibited use of any parcel in the section for other than one-family dwelling purposes. No other declaration of restrictions was filed with respect to any other section, and the section 1 declaration specifically excluded from its effect any land outside section 1. Section 2 was, in the main, developed by the Rose Interests, although certain lots were sold to individuals and some were sold to defendant Sea View Estates, Inc. Defendant Rose is an officer and 10% stockholder in Sea View Estates, Inc., but that corporation is not otherwise connected with the Rose Interests. Section 4 was sold by the Rose Interests to defendant Cameo-at-Harbour Green, Inc, Defendant Jamsu Realty Corp. is a subsidiary of Cameo and defendants Rosenberg and Gerla are officers of those and other Cameo subsidiary corporations. For convenience, Cameo, Jamsu, Rosenberg and Gerla and any other subsidiary corpora
Plaintiffs are the grantees of seven homes in section 2, five of which were purchased from Bose Interests and two from Sea View Estates. Defendant Green Harbour Beach Club, Inc. (hereafter referred to as “ Beach Club ”) purchased from Cameo Interests a beachfront tract in section 4 and defendant General Facilities, Inc., acquired from Bose Interests the lot immediately east of the Beach Club tract, which, however, is in section 2. Both propose to use their land for private beach club purposes. At all times material to this action, the entire 133-acre tract has been zoned Besidence “ C ”. In such a district, a private club is a permitted use when authorized by the Town Board as a special exception, after a hearing. The Town Board has granted a special exception with respect to the Beach Club property; none has yet been requested for the General Facilities lot.
Plaintiffs, contending that, by oral statements, newspaper advertising, a display (hereafter referred to as the ‘ ‘ Chandler View ”) shown in the sales office, and brochures used in making sales, it was represented to them that land in the entire development would be used only for one-family residences and that the community beach shown in the brochure and on the Chandler View and referred to in the advertising would be the only beach in the entire development, by this action seek (1) to reform their purchase contracts and deeds to insert a restriction of the entire 133-acre tract to one-family residential use, (2) to enjoin use by Beach Club and General Facilities of their land for a beach club or for other than one-family residential purposes and to cause any beach facility erected thereon to be removed, and (3) a declaration that the entire 133-acre tract is, except for the community beach and boating facility constructed by Bose Interests as part of the development, subject to an equitable restriction limiting use to one-family residences.
This action is by the plaintiffs individually. It is not brought in a representative capacity, as was the complaint in Weil v. Atlantic Beach Holding Corp. (131 N. Y. S. 2d 225, 231, mod. 285 App. Div. 1080, mod. 1 N Y 2d 20) nor has the association of which plaintiffs are members been joined, as was the case in Civic Assn. at Roslyn Country Club v. Levitt & Sons (7 N Y 2d 894) and Woodmere Parle Assn. v. Cedarpoint Realty Co. (279 App. Div. 672). Plaintiffs have elected to proceed individually and not to join either certain other builders who hold portions of the tract or the more than 100 other individual
The Statue of Frauds was not pleaded, however, and was, therefore, waived. (Matthews v. Matthews, 154 N. Y. 288.) Further the complaint seeks reformation of the contracts and the deeds and ‘ ‘ it is settled that neither the Statute of Frauds nor the parol evidence prohibition forbids reformation of a written contract to include material orally agreed upon but, because of mutual mistake or unilateral mistake plus fraud, not inserted in the writing.” (Brandwein v. Provident Mut. Life Ins. Co., 3 N Y 2d 491, 496; Susquehanna S. S. Co. v. Andersen & Co., 239 N. Y. 285; Meyer v. Lathrop, 73 N. Y. 315; Sadock v. Mitrani, 248 App. Div. 470; Schall v. Schwartz & Co., 177 App. Div. 765.) Moreover, application of the parol evidence rule depends upon the type of the transaction, the scope of the written contract and the content of the oral agreement asserted, the determining factor being whether in view of the surrounding circumstances, ‘ ‘‘ the agreement was one which the parties would ordinarily be expected to embody in the writing. ’ ” (Fogelson v. Rackfay Constr. Co., 300 N. Y. 334, 338; Ball v. Grady, 267 N. Y. 470, 472.) In the light of cases such as Phillips v. West Rochaway Land Co. (226 N. Y. 507 — enforcing an oral representation that land in front of plaintiff’s lots would be used only for a boardwalk); Hofmann v. Hofmann (172 Misc. 378, affd. 259 App. Div. 820, mod. 283 N. Y. 730 — enforcing parol representations that all of seller’s land would be used exclusively for private residences), and Lemkin v. Gulde (16 Misc 2d 1003, affd. 8 A D 2d 944 — denying summary judgment to defendant where plaintiff-tenant sought to enforce an oral representation that the remainder of the parcel on which defendant-landlord’s building was located would be maintained as a private park for 10 years), and after consideration of the written contracts (other than that of plaintiff Lomen, which was not introduced) and of the claimed rep-
Is extrinsic evidence barred in the other cases by the merger clause set forth in each of the contracts Í That clause (par. 22) provides: “It is expressly understood and agreed that this contract states the entire agreement and the seller is not and shall not be bound by any stipulations, representations, agreements or promises, oral or otherwise, not printed or inserted in this contract.” The Court of Appeals has clearly distinguished between a clause specifically disclaiming oral representations concerning the very matter covered by the extrinsic testimony offered and a general merger clause (Danann Realty Corp. v. Harris, 5 N Y 2d 317), and has held a clause substantially similar to the above to be a general merger clause not barring receipt of extrinsic evidence. (Crowell-Collier Pub. Co. v. Josefowitz, 5 N Y 2d 998.) Though neither of those cases concerned easements by oral representation, the Lemkin case (supra) was concerned with the effect of a merger clause on
Motions were also made to strike the testimony of witnesses Fromme, Zelig, Lomen, Blanke and Rosenblatt as not binding on Rose Interests or defendant Beach Club. Lomen and Blanke are plaintiffs but purchased from Sea View; Fromme, Zelig, and Rosenblatt all purchased from Cameo Interests and none are plaintiffs. The testimony was admissible on the question of notice on the part of Sea View and Cameo Interests, as grantees of Rose Interests, of the claimed general plan. And while it is true that declarations by agents of such grantees would not, by themselves, be competent to show that their grantor had established a general plan, when the general plan is shown by other evidence, acts and declarations of the grantees in furtherance of the general plan become admissible, it appears, against both the grantor and the grantees. (Miller v. Barber, 66 N. Y. 558, 567; Wigmore, Evidence [3d ed.], § 377; Richardson, Evidence [8th ed.], § 189; and, see, Altman v. Ozdoba, 237 N. Y. 218; Lowenstein v. Lombard, Ayres & Co., 164 N. Y. 324, 333.) It was sought to strike testimony of Zelig concerning conversations with one Lesser, and of Rosenblatt concerning conversations with one Malkin, on the further ground that no proof other than statements of Lesser and Malkin identified them as salesmen for Cameo Interests. In each case, however, it was shown that the conversation took place in the sales office or model house maintained by Cameo, was the beginning of negotiations which included later conversations with Rosenberg, a Cameo officer, and culminated in the sale and transfer by Cameo of a home in the development to the
We come then to consideration of the merits of the ease. In Bristol v. Woodward (251 N. Y. 275, 289) Chief Judge Cabdozo discussed, but declined to draw “the ultimate generalization ’ ’ with respect to, the conflicting theories on which equitable restriction cases rest. Current decisions are framed in terms of such restrictions being easements or interests in land, rather than contracts relating to enjoyment of land to be enforced by way of specific performance, but much of the latter concept is retained through the application of principles of estoppel. Whatever the underlying theory, the following principles can be adduced from the cases: (1) a general plan exists when reciprocal benefits and burdens are established as “local law for the lands of a community,” when buyers ‘ ‘ have been invited ‘ to come in and purchase on the footing that the whole of the property offered for sale was to be bound by one general law ’ ” (Bristol v. Woodward, supra, pp. 283, 285; see, also, Booth v. Knipe, 225 N. Y. 390; Landsberg v. Rosenwasser, 124 App. Div. 559; McDougall v. Schneider, 134 App. Div. 208); (2) if such a plan be shown any grantee may enforce it against the grantor or any other grantee with notice, without regard to the chronology of the conveyances (Bristol v. Woodward, supra, Korn v. Campbell, 192 N. Y. 490; Chesebro v. Moers, 233 N. Y. 75; Clark, Covenants and Interests Running with Land [2d ed.], p. 173); (3) a general plan may be created by express covenant, by implication from a filed map or by parol representations made in sales brochures, maps, advertising and oral statements on which the purchaser relied in making his purchase (Korn v. Campbell, supra, pp 495, 498; Hofmann v. Hofmann, supra; Smith v. Community Synagogue, supra; Bimson v. Bultman, 3 App. Div. 198; Turner v. Howard, 10 App. Div. 555; see Bristol v. Woodward, supra) ; (4) the principles of implication (Erit Realty Corp. v. Sea Gate Assn., 259 N. Y. 466; Weil v. Atlantic Beach Holding Corp., supra), and estoppel (Phillips v. West Rockaway Land Co., supra), or a combination of those principles (Wilkinson v. Nassau Shores, 1 Misc 2d 917, affd. 278 App. Div. 970, mod. 304 N. Y. 614) are also applied to sustain features which benefit and may, but do not necessarily, burden the grantee, whether the benefit be individual (as in Phillips, supra) or for the com
Has a general plan been shown in the instant case? The question is one of the intention of the parties as shown by the words used, when considered in connection with the surrounding circumstances. (Schoonmaker v. Heckscher, supra; Booth v. Knipe, supra; Erit Realty Corp. v. Sea Gate Assn., supra.) It is conceded that the park, boat basin and community beach were features for the benefit of the community generally, including any purchaser anywhere within the 133-acre tract. The easement which plaintiffs seek to enforce as a general plan, however, would reciprocally bind all property within the 133-acre tract to use for single-family dwellings only and prohibit any other use, including not only other beach clubs but schools, colleges, churches, libraries, hospitals and other types of private clubs permitted, either absolutely or as special exceptions, under the zoning ordinance. Plaintiffs seek to spell out this result from (1) the maps filed with the Nassau Planning Commission, (2) a statement made by the developer to the commission, (3) newspaper advertisements, (4) a brochure used by Rose Interests salesmen, (5) the Chandler View, and (6) oral representations. Defendants point to the fact that none of plaintiffs’ contracts and none of the deeds in evidence restrict the parcel granted to single-family dwelling use nor limit grantor’s use of any retained land nor require incorporation of uniform restrictions in deeds to other grantees, and to the further fact that such restrictions were provided in all of the
The maps filed with the Planning Commission are to be interpreted not only by what appears on them but in the light of their setting (Erit Realty Corp. v. Sea Gate Assn., supra). The maps of sections 2 and 4, to which plaintiffs’ deeds refer, divided the sections into building lots, set forth a “ Typical Plot Plan” and a cross section of a “ Typical Septic Tank,” note that the area is zoned “Residence C,” and in the case of the section 4 map, that “Prior to actual construction of any houses ” certain dikes were to be punctured. The other section maps were substantially similar. While the maps thus evidence an intention to develop the entire tract as “ a residential area,” as was orally represented to the Planning Commission, neither the maps nor the oral representation indicate an intention to restrict that residential area to more limited uses than its Residence C zoning permitted. Nor does the fact that the Planning Commission might have required wider streets had it been informed that other permitted uses would ultimately become actual, alter the result, for the commission’s approval must be considered to encompass whatever uses are permissible under applicable zoning provisions. Nothing on the maps nor in the statement to the commission indicates an intention to restrict use of the entire tract to one-family dwellings or to prohibit more than one beach club (Warren v. Protano, Inc., supra).
Though the newspaper advertisements and sales brochure contain references to a “ 1 Resort-at-Home ’ community ” (Ex. 20, 24, 30, 48, 50, 51); “ custom planning ” of both homes and community (Ex. 19); “a picturesque haven of handsome homes ” (Ex. 23); “ exclusive rights to a secluded sand beach * * * plus a private yacht basin * * * plus a private community beach club-, plus a 3 acre scenic park” (Ex. 24, capitals and italics in original); “Free access to these on-the-property facilities: a secluded, mile-long white sand beach,” a boat basin and park (Ex. 26, 27); “ this scenic estate community ” (Ex. 27); location “in nearby, residential Massapequa ” (Ex. 49); “ a Surf Club with mile-long seaside beach ” (Ex. 50, 51), none of these expressions carry the implication that all plots other than the beach, yacht basin and park are
Credence is lent to the claim of a general plan only by the Chandler View (which was displayed in the model house and reproduced in two newspaper ads [Exs. 19, 50]) and the similar rendition printed on the front of the sales brochure, by the express oral representations testified to, by Bose’s view, stated to the Town Board, that a beach club “ was not in the character of the type of community we were creating ” and by Goldberg’s testimony at this trial that purchasers were told that “we are going to build 359 one-family houses or we hope to build 350 if we sell them”. Bose’s view and Goldberg’s testimony must be considered against Bose’s clear statement before the Town Board that he had “placed no restriction” on the property. So considered, they furnish background supporting an estoppel to deny the truth of representations made to individual grantees, but they do not evidence an intention to reciprocally restrict all property within the community so that only one-family dwellings could be built upon them.
Each of the express oral representations will be individually discussed below. If for the moment all are accepted as fact, they nonetheless relate to only 7 out of over 120 purchasers (or if nonplaintiffs are considered, 10 out of substantially more than 120 purchasers). White v. La Due & Fitch, Inc. (supra) held express restrictions in 115 deeds in a 449-lot subdivision insufficient to effect a general plan and a similar ruling was made in Davidson v. Dunham (159 App. Div. 207) with respect' to express restrictions in 208 out of 253 deeds. (See, also, Bristol v. Woodward, supra.) And while the Chandler View and the brochure rendition both show all plots in the entire tract, other than the park and the community beach club, as occupied by houses, both are obviously artist’s conceptions (the reproduction in Ex. 50 was plainly so labeled and the obvious error showing the marina completely surrounded by houses further so indicates). The visual representation thus made, whether considered separately or in conjunction with the other available evidence, does not constitute such a clear and unequivocal representation as had been heretofore held to spell out a general plan (Hofmann v. Hofmann, supra; Smith v.
Whether an easement by representation and estoppel was made to any of plaintiffs must be separately determined with respect to each plaintiff. (White v. La Due & Fitch, Inc., supra.) The estoppel upon which an easement by representation rests was originally conceived of as preventing application of the Statute of Frauds or the parol evidence rule (Trenton Banking Co. v. Duncan, 86 N. Y. 221; Newman v. Nellis, 97 N. Y. 285; White v. Manhattan Ry. Co., 139 N. Y. 19; Norton v. Ritter, 121 App. Div. 497) but in some cases has been stated as an estoppel to deny the truth of representations made (White v. La Due & Fitch, Inc., supra; Bimson v. Bultman, supra; Turner v. Howard, supra) or an estoppel to deny the existence of an easement (Civic Assn. at Roslyn Country Club v. Levitt & Sons, supra; see Phillips v. West Rockaway Land Co., supra). It is not necessary in the instant case to ascertain the difference, if any, in these concepts or to consider whether defendants’ failure to plead the Statute of Frauds places the matter on the basis of oral contract only and obviates the necessity of showing all the elements of estoppel, for as hereinafter stated, the court finds all the elements of estoppel to exist. Any representation, whether by map (Phillips v. West Rockaway Land Co., supra), by advertising, or by oral representation (White v. La Due & Fitch, Inc., supra), made to the particular plaintiff may give rise to an estoppel to deny existence of the easement. With respect to the purchasers from Sea View Estates, the court finds that no representation of the nature claimed in the complaint was made to Lomen, orally or otherwise, but that representations were made to plaintiff Blanke that “ all the other plots in the area [would] be strictly for houses ” and that the community beach ‘ ‘ was going to be the only beach and * * # the rest of it was going to be only houses ”. As to Blanke, the testimony thus sustains an easement by representation, and Sea View having failed to answer the complaint, plaintiff Blanke is entitled to a judgment declaring any plot now owned by Sea View subject to an equitable restriction limiting its use to houses. While Cameo Interests also failed to answer the complaint, it is not necessary to consider testimony of purchasers from Cameo since none are plaintiffs in this proceeding.
The remaining plaintiffs all purchased from Bose Interests. Be Beer need not be considered because of the concession in plaintiffs’ brief that no representation on which an easement can be based was made to him. Further, Feigen’s testimony
As to General Facilities, a letter of one of its affiliated corporations was offered to show notice. In that letter the corporation offered to a purchaser of one of its houses beach and bathing rights on the General Facilities lot in section 2. The letter stated “ You are welcome to use these premises, but we are not representing any facts concerning its use.” That statement could refer to a restriction against beach use, but it could also refer to the possible violation of zoning regulations involved in any such use prior to the granting of a special exception by the Town Board, and it could simply be an effort to protect against tort liability. It is insufficient to spell out notice of any plan of development or any other restriction.
As to Beach Club, plaintiffs refer to the fact that Beach Club’s present president, Powers (then chairman of the predecessor Civic Association’s Beach Committee), walked over the ground and was familiar with it and to statements in articles written by Powers in the association’s newsletter, “ The Harbor Green,” indicating apprehension concerning opposition by residents of Estates of Harbour Green. But much of the waterfront, and also of the interior, property was vacant. Though notice of facts sufficient to require inquiry may be predicated on a uniform building line of erected houses, no notice may be inferred from the physical appearance of vacant land. And such apprehension as is indicated in the articles is equally referrable to the zoning matter before the Town Board and, therefore, does not show notice. Plaintiffs also claim that Powers was familiar with maps of the area and had been informed early in 1958 by Dodenhoff, president of the Harbour Green Shore Club (the entity holding the community beach),
While plaintiffs Blanke, Rosenberger and Merzbacher are, therefore, entitled to judgment as above outlined, they have failed to make out a case for reformation of their contracts or deeds (Hofmann v. Hofmann, supra; Ross v. Food Specialties, 6 N Y 2d 336). The complaint is, therefore, dismissed as to all plaintiffs other than Blanke, Merzbacher and Rosenberger and as to them is dismissed except to the extent of granting declaratory judgments against Sea View and the parties designated as Rose Interests as hereinabove indicated. Costs are awarded to Blanke against Sea View, to Merzbacher and Rosenberger (one bill) against the Rose Interests defendants, and Beach Club and General Facilities are each allowed one bill of costs against all plaintiffs. The action was discontinued as to defendant Goldberg at the inception of the trial, and as to defendant Taraborelli during trial and the judgment to be settled hereon should so recite. An order of discontinuance as to Taraborelli allowing him $250 plus costs has been signed.
The above constitutes the decision of the court pursuant to section 440 of the Civil Practice Act, and all motions on which decision was reserved are decided accordingly. Settle judgment on notice.