Kleist v. SternKleist v. Stern
ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (PAUL V. WEBB, JR., OF COUNSEL), FOR PLAINTIFF-APPELLANT.
WRIGHT, WRIGHT AND HAMPTON, JAMESTOWN (EDWARD P. WRIGHT OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Chautauqua County (James H. Dillon, J.), entered May 16, 2018. The order granted the motion of defendant for a directed verdict and dismissed the amended complaint.
Memorandum: Plaintiff and defendant own lakefront properties within the Chautauqua Shores subdivision. All property owners within the subdivision are subject to covenants and restrictions that were filed in 1962, when the subdivision was developed. The covenants and restrictions give “each and every owner of land in [the subdivision] . . . the right to enforce the same by appropriate court proceedings.” In December 2014, defendant purchased his property with plans to demolish the existing house and build a much larger house on the property. When plaintiff saw the site plans for the new house, she notified defendant by letter in early August 2015 that the site plan showed that the home he was about to construct was in violation of paragraph five of the covenants and restrictions, which required a 100-foot setback from the lake line for any building. That same month, she commenced this action seeking to enjoin defendant from violating that covenant and restriction and to require him to remove any buildings that were in violation thereof. By her amended complaint filed a few months later, plaintiff alleged that the house would also violate the second and fourth paragraphs of the covenants and restrictions. Defendant, believing that he was in compliance with the covenants and restrictions, proceeded with the construction and the house is now fully built. A nonjury trial was held and, at the close of plaintiff‘s proof, Supreme Court granted defendant‘s motion for a directed verdict and dismissed the amended complaint, and plaintiff now appeals.
Upon defendant‘s motion for a directed verdict, the court must accept plaintiff‘s evidence as true and afford plaintiff every favorable inference that may reasonably be drawn from the facts as presented at this nonjury trial, and grant the motion only if there is no rational process by which the court could have found in plaintiff‘s favor (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; Bolin v Goodman, 160 AD3d 1350, 1351 [4th Dept 2018]). We conclude that the court erred in granting the motion with respect to the claims in the amended complaint alleging violations of paragraphs four and five of the covenants and restrictions. We therefore modify the order by denying the motion in part and reinstating the amended complaint to the extent it alleges violations of those covenants and restrictions,
“[T]he law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them” (Witter v Taggart, 78 NY2d 234, 237 [1991]; see Huggins v Castle Estates, 36 NY2d 427, 430 [1975]). “[A] party seeking to enforce a restriction on land use must prove, by clear and convincing evidence, the scope, as well as the existence, of the restriction” (Greek Peak v Grodner, 75 NY2d 981, 982 [1990]; see Witter, 78 NY2d at 238; Huggins, 36 NY2d at 430). “Restrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable” (Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 431 [2004]).
We disagree with plaintiff that she established by clear and convincing evidence that defendant‘s house violated the second paragraph of the covenants and restrictions, which provides that only single family dwellings “not more than one and one-half stories in height . . . shall be placed on any lot.” That same covenant was at issue in Ludwig v Chautauqua Shores Improvement Assn. (5 AD3d 1119, 1120 [4th Dept 2004], lv denied 3 NY3d 601 [2004]), and we determined that the court there incorrectly accepted the interpretation of the covenant “as prohibiting property owners from building homes of more than 1 1/2 stories in design, regardless of their height.” We concluded that “[t]he words ‘not more than one and one-half stories in height’ are ambiguous in scope,” and because the defendants, who were seeking to enforce the covenant, “failed to present . . . clear and convincing proof with respect to what number of feet constitutes a ‘story in height,’ the scope of the covenant ‘is uncertain, doubtful, or debatable,’ thus rendering it unenforceable as applied to plaintiff‘s residence” (id.). Here, plaintiff also failed to show by clear and convincing evidence the scope and meaning of the covenant in the second paragraph. Plaintiff‘s experts testified to three different interpretations of that covenant. One expert, who was familiar with restrictive covenants written for subdivisions in the area, opined that, for the most part, height restrictions are usually delineated in feet, and the relevant covenant was not so delineated. Instead, it was delineated in terms of “stories,” and there was no clear and convincing proof of what that meant.
We agree with plaintiff, however, that she established by clear and convincing evidence that defendant‘s house violated the fourth and fifth paragraphs of the covenants and restrictions.
Although the court determined that there was a violation of at least one of the covenants and restrictions here, it granted the motion on the ground that plaintiff could not seek equitable relief because she did not seek such relief against other property owners within the subdivision regarding their alleged violations of the same covenants and restrictions. That was error. Plaintiff is “entitled to ignore inoffensive violations of the restriction[s] without forfeiting [her] right to restrain others which [she] find[s] offensive” (Gordon v Incorporated Vil. of Lawrence, 84 AD2d 558, 559 [2d Dept 1981], affd 56 NY2d 1003 [1982]). Moreover, the court‘s reluctance to grant equitable relief where, as here, the house has already been built was not a valid basis for granting defendant‘s motion. Defendant “proceeded with construction of the [house] with knowledge of the restrictive covenants and of plaintiff[‘s] intention to enforce them” (Chambers, 1 NY3d at 434; see Hidalgo v 4-34-68, Inc., 117 AD3d 798, 800 [2d Dept 2014], lv denied 24 NY3d 916 [2015]; Westmoreland Assn. v West Cutter Estates, 174 AD2d 144, 151-152 [2d Dept 1992]).
Finally, although both parties address whether the covenants and restrictions should be extinguished pursuant to
Entered: July 31, 2019
Mark W. Bennett
Clerk of the Court