| Forest Close Assn., Inc. v Richards |
| 2007 NY Slip Op 08407 [45 AD3d 527] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Forest Close Association, Inc.,Respondent-Appellant, v Robert M. Richards et al.,Appellants-Respondents. |
—[*1] Miranda Sokoloff Sambursky Slone Verveniotis LLP, Mineola, N.Y. (Michael A. Mirandaand Charles A. Martin of counsel), for respondent-appellant.
In an action, inter alia, for a judgment declaring that certain proposed construction by thedefendants would violate a restrictive covenant, and to permanently enjoin the defendants fromconstructing any addition in the rear garden of their property, the defendants appeal, as limited bytheir brief, from so much of an order and judgment (one paper) of the Supreme Court, QueensCounty (Kitzes, J.), entered June 2, 2006, as granted the plaintiff's motion for summary judgmentto the extent of declaring that the proposed construction by the defendants is subject to therestrictive covenant, and permanently enjoined the defendants from constructing any addition inthe rear yard of their property, and the plaintiff cross-appeals from so much of the order andjudgment as denied that branch of its motion which was for summary judgment dismissing thedefendants' fourth counterclaim.
Ordered that the order and judgment is modified, on the law and the facts, by adding to theprovision permanently enjoining the defendants from constructing any addition in the rear yard oftheir property the words "without the consent in writing of Forest Close Association, Inc., havingbeen first had and secured"; as so modified, the order and judgment is affirmed insofar asappealed and cross-appealed from, without costs or disbursements.
The plaintiff, Forest Close Association, Inc., a homeowners association representing theinterests of the homeowners of the private community of Forest Close in Queens, established itsentitlement, as a matter of law, to enforce the restrictive covenant at issue, which prohibitshomeowners, such as the defendants herein, from, among other things, erecting, without the[*2]plaintiff's consent, any structure on their property that wouldencroach on the so-called garden quadrangle (see Kew Forest Neighborhood Assn. vLieberman, 306 AD2d 443, 444 [2003]; Westmoreland Assn. v West Cutter Estates,174 AD2d 144, 148 [1992]; see also Orange & Rockland Util. v Philwold Estates, 52NY2d 253, 263 [1981]; cf. CappelliArmonk, LLC v Village/Town of Mount Kisco, 12 AD3d 477, 478 [2004]; Turner vWilliams, 264 AD2d 443 [1999]). In opposition, the defendants failed to raise a triable issueof fact.
Further, the plaintiff established its entitlement to a permanent injunction by demonstratingthat it would suffer irreparable harm without such relief (see Kane v Walsh, 295 NY 198,205-206 [1946]; Williamsburg Around the Bridge Block Assn. v Giuliani, 223 AD2d 64,74 [1996]). Specifically, the plaintiff established that the defendants' construction of a proposedbrick addition to the rear of their home would alter Forest Close's interior garden quadrangle andwould be difficult to remove, and under such circumstances, the plaintiff could not be madewhole with an award of damages (cf.Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006]).
The plaintiff also established the applicability of the business judgment rule as shieldingfrom judicial disturbance its decision to enforce the restrictive covenant, as the evidencedemonstrates that the enforcement thereof is authorized, was made in good faith, and furthers theplaintiff's interests of maintaining the integrity of Forest Close's interior garden quadrangle(see Matter of Levandusky v One Fifth Ave. Apt. Corp., 75 NY2d 530, 538 [1990];Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d at 538-539;Nuzzo v Board of Mgrs. of Jefferson Vil. Condominium No. 1, 228 AD2d 568 [1996]).
However, in light of the plaintiff's concession at oral argument of this appeal that it seeks toenforce the restrictive covenant only to the extent of prohibiting the erection of any structurewithout its consent, the scope of the permanent injunction has been so limited.
The plaintiff's contention concerning an attorney's fee is not properly before this Court (see Jordan v Jordan, 8 AD3d 444,446 [2004]; Royal v Brooklyn Union Gas Co., 122 AD2d 132, 133 [1986]).
The remaining contentions of the plaintiff and the defendants are without merit. Crane, J.P.,Spolzino, Krausman and McCarthy, JJ., concur.