| Bailey v Chernoff |
| 2007 NY Slip Op 09142 [45 AD3d 1113] |
| November 21, 2007 |
| Appellate Division, Third Department |
| Jerry D. Bailey et al., Plaintiffs, and Francis S. Zilka et al.,Appellants, v Daniel M. Chernoff et al., Respondents. |
—[*1] Michele L. Anderson, L.L.C., Saratoga Springs (Michele L. Anderson of counsel), forrespondents.
Cardona, P.J. Appeal from a order of the Supreme Court (Williams, J.), entered June 30,2006 in Saratoga County, which, among other things, partially granted defendants' cross motionfor summary judgment and cancelled the notice of lis pendens filed by plaintiffs.
The parties herein are residents of Regatta View, a planned unit development located inthe City of Saratoga Springs, Saratoga County. The development was sponsored by HomelandDevelopment Corporation, which sold parcels subject to a filed "Covenants and Declarations ofRestrictions," as well as the bylaws of the Regatta View Homeowners Association (hereinafterAssociation). As relevant herein, during a July 2004 open meeting of the Association's Board ofDirectors, defendants, owners of a waterfront parcel, applied for permission to build a boathouseon their property. While the development's original covenants and restrictions did not specificallyidentify boathouses as being prohibited, the Board was unsure whether the application could begranted and indicated that Homeland Development would be contacted about an amendment thatwould unambiguously permit boathouse structures within the [*2]subdivision, subject to architectural review by the Board.[FN*] Although several homeowners were present at the meeting, no objections were recorded.Thereafter, on October 8, 2004, Homeland Development amended the covenants and restrictionsto permit boathouses.In April 2005, the City of Saratoga Springs approved defendants' request to construct aboathouse and issued a building permit. Defendants began construction in May 2005 andplaintiffs, whose property adjoins defendants' parcel, indicated that they first noticed work beingdone on the project in June 2005. Thereafter, they consulted legal counsel in late August 2005 todetermine the "lawfulness of the subject boathouse." The attorney inspected the boathouse withone of the plaintiffs on August 30, 2005, at which point it "looked to be complete from alloutward appearances."
Plaintiffs commenced this action and filed a notice of pendency in November 2005, claimingthat the boathouse was erected in violation of the covenants and restrictions because HomelandDevelopment allegedly lacked the authority to, among other things, issue the October 2004amendment. The complaint set forth two causes of action. The first sought a permanentinjunction restraining defendants from "erecting and/or maintaining a boathouse" and the secondrequested money damages for nuisance. Defendants, whose attempt to sell their home wasallegedly thwarted by the commencement of this litigation, asserted several affirmative defensesin their answer along with two counterclaims alleging slander of title and tortious interferencewith business relations.
Thereafter, plaintiffs moved pursuant to CPLR 3211 (a) (7) to dismiss defendants' [*3]counterclaims for failure to state a cause of action. The parties thencross-moved for summary judgment, with defendants seeking the dismissal of the complaint withcancellation of the lis pendens and plaintiffs requesting summary judgment as to their first causeof action. Concluding that defendants' affirmative defense of laches was meritorious, SupremeCourt granted defendants' cross motion for summary judgment to the extent of dismissing thefirst cause of action, cancelling the lis pendens and holding that "the boathouse may remain asis." The court also denied plaintiffs' motions. This appeal by plaintiffs Francis S. Zilka andSuzanna L. Zilka (hereinafter collectively referred to as plaintiffs) followed.
Initially, we agree with Supreme Court's conclusion that the doctrine of laches bars plaintiffs'request for a permanent injunction. Even assuming that plaintiffs are correct in contending thatthe amendment to the development's covenants and restrictions to permit boathouses wasimproper, restrictive covenants "will not be enforced in inequitable circumstances, such as. . . where the party seeking enforcement is guilty of laches" (Meadow Run Dev.Corp. v Atlantic Ref. & Mktg. Corp., 155 AD2d 752, 754 [1989] [citation omitted]).Notably, in order to succeed on a defense of laches, a party must demonstrate: "(1) conduct by anoffending party giving rise to the situation complained of, (2) delay by the complainant inasserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge ornotice on the part of the offending party that the complainant would assert his or her claim forrelief, and (4) injury or prejudice to the offending party in the event that relief is accorded thecomplainant" (Matter of Kuhn v Town of Johnstown, 248 AD2d 828, 830 [1998][internal quotation marks and citation omitted]).
Here, Supreme Court properly found that defendants met this test. Clearly the construction ofthe boathouse by defendants which gave rise to the subject lawsuit met the first part of the test.As for the second part, the record shows, among other things, that, during the July 2004 openmeeting of the Board, all homeowners in the development were given notice of defendants'intention to build a boathouse on their property. In addition, plaintiffs were admittedly on noticeafter construction of the boathouse began, yet did not seek a preliminary injunction and, instead,waited until after construction was completed to commence this action. With respect to the thirdpart of the test, the record supports defendants' assertion that they were unaware that plaintiffsintended to commence a suit against them because they never received any objection orcomplaint from them prior to, during or upon completion of construction of the boathouse.Regarding the final requirement that there be a demonstration of injury due to the delay,defendants, who apparently went through the proper channels to have the construction approved,showed that they would be severely prejudiced if forced to tear down the boathouse afterallegedly expending approximately $125,000 for its construction.
Although plaintiffs maintain that their delay was minimal, "[b]ecause the effect of delay onthe adverse party may be crucial, delays of even under a year [may be] sufficient to establishlaches" (Matter of Schulz v State of New York, 81 NY2d 336, 348 [1993]). Here, giventhe highly prejudicial effect of plaintiffs' neglect in promptly asserting their claim (see Matterof Save The Pine Bush v New York State Dept. of Envtl. Conservation, 289 AD2d 636, 638[2001], lv denied 97 NY2d 611 [2002]), we conclude, under the particular circumstancesherein, that Supreme Court properly dismissed plaintiffs' claim for a permanent injunction.
Finally, we are unpersuaded by plaintiffs' contention that Supreme Court erred in [*4]declining to dismiss defendants' counterclaims. Notably, whenruling on a motion to dismiss a claim for failure to state a cause of action, the court "must affordthe complaint a liberal construction, accept as true the allegations contained therein, accord theplaintiff the benefit of every favorable inference and determine only whether the facts alleged fitwithin any cognizable legal theory" (Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [2004][internal quotation marks and citation omitted]; see Herron v Essex Ins. Co., 34 AD3d 913, 915 [2006], lvdismissed 8 NY3d 856 [2007]). Here, while defendants' showing in support of thecounterclaims was not extensive, their allegations were sufficient to state cognizable claims inslander of title and tortious interference with business relations.
Plaintiffs' remaining arguments have been examined and found to be unpersuasive.
Mercure, Peters, Spain and Carpinello, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote *: As background, we note that theoriginal 1997 "Covenants and Declarations of Restrictions" provided that HomelandDevelopment reserved an absolute right to amend the covenants and restrictions, however, thatright would expire "at the time the last lot in the subdivision is sold." At that point, a new Boardof Directors of the Association would be established by a vote of the current homeowners.Pursuant to its alleged authority under this document, Homeland Development amended thecovenants and restrictions in May 1998, June 2000, October 2000, December 2003 and October2004. However, in February 2003, prior to the latter two amendments, Homeland Developmenttransferred the last lots in the development, for no consideration, to Regatta View, LLC, an entitywith Homeland Development as its sole member. The timing and effect of these transfers formthe basis for the parties' underlying dispute over whether amendments to the covenants andrestrictions after February 2003 are valid and enforceable.