40 A.D.2d 964 | N.Y. App. Div. | 1972
Order and judgment (one paper), Supreme Court, Bronx County, entered on October 6, 1972, unanimously modified, on the law, to deny defendant-respondent’s motion to dismiss the complaint to the extent of reinstating the second, third, and fourth causes of action stated therein, and otherwise affirmed, without costs and without disbursements.
Order and judgment, Supreme Court, Bronx County, entered on September 25, 1972, unanimously' modified, on the law, to deny defendants-respondents’ motion to dismiss the complaint to the extent of reinstating the second and third, causes- of action stated therein, and otherwise affirmed, without costs and without disbursements.
Each of these two cases involves a project to build a high-rise quasi-public building in the residential reaches of Riverdale in Bronx County: one a nursing home facility of some 369 beds; the other, a grammar grade school of about 600 pupils. In each instance, a group of home owners has united to commence an action for declaratory judgment and injunction to prevent the projected construction. Without undue oversimplicity, it may be stated that the complaints are virtually identical: each states causes of violation of zoning regulations (first cause in each case); of nuisance (second, in each case); of violation of ancient restrictive covenants (third and fourth causes as to the school; second as to the nursing home). There is a fifth cause asserted against the school of violation of the Executive Law in technical respects; it is apparently recognized by the parties and not disputed on appeal, that later, compliance with the law has rendered this point academic. In each instance, Special Term has dismissed the complaint; we agree as to claimed zoning violations, and we reverse as to the causes for nuisance and the effect of the restrictive covenants, holding as to both claims that there are issues of fact which require a trial.
Certain other aspects of the motions, the dispositions of which we also affirm, require no future discussion here.