| Rugby Rd. Corp. v Doane Bldrs., Inc. |
| 2009 NY Slip Op 02707 [61 AD3d 1157] |
| April 9, 2009 |
| Appellate Division, Third Department |
| Rugby Road Corporation et al., Appellants, v Doane Builders, Inc.,Respondent. |
—[*1] Cooper & Pautz, Horseheads (Scott J. Pautz of counsel), for respondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Mulvey, J.), entered January 31,2008 in Chemung County, which, among other things, granted defendant's motion for summaryjudgment dismissing the complaint.
Plaintiffs commenced this action seeking to enjoin defendant from constructing a streetthrough a lot in the subdivision known as Hunters Run, Phase III (hereinafter Phase III), in theTowns of Horseheads and Big Flats, Chemung County. The proposed street would connect PhaseIII to an adjoining subdivision being developed by defendant. Plaintiffs asserted that placing astreet through a lot violated the restrictive covenants that limited the use of the lots in Phase IIIto single family residences. Defendant moved for summary judgment and plaintiffs cross-movedfor summary judgment. In its decision, Supreme Court first granted defendant's motion as to allplaintiffs, except plaintiff Vidyasagar Mokureddy, upon the ground that the other plaintiffs didnot have standing. The court then addressed the merits of the motions as to Mokureddy anddefendant, and granted defendant summary judgment. Plaintiffs appeal.
Initially, we note that plaintiffs have not argued the standing issue on appeal and,accordingly, that issue is abandoned (see Matter of Federation of Mental Health Ctrs. vDeBuono, 275 AD2d 557, 560 n 3 [2000]; Rabideau v Albany Med. Ctr. Hosp., 195AD2d 923, 926 n [1993]). Defendant acknowledges that the remaining plaintiff, Mokureddy, hasstanding.[*2]
"Restrictive covenants will be enforced when theintention of the parties is clear and the limitation is reasonable and not offensive to publicpolicy" (Chambers v Old Stone Hill Rd.Assoc., 1 NY3d 424, 431 [2004] [citations omitted]). However, since the law favors"unencumbered use of real property," restrictive covenants are "strictly construed against thoseseeking to enforce them" (Witter v Taggart, 78 NY2d 234, 237 [1991]; see Town of Butternuts v National Grangeof Patrons of Husbandry, 20 AD3d 637, 638 [2005]; Van Schaick v Trustees ofUnion Coll., 285 AD2d 859, 860 [2001], lv denied 97 NY2d 607 [2001]). Here,while the language employed in the restrictive covenants clearly limits the use of the lots toresidential purposes and that language does not permit building a street through a lot (seeIrish v Besten, 158 AD2d 867, 867-868 [1990]), a liberal method for modifying thecovenants was set forth in the document establishing the restrictive covenants.
The germane document provided that, until December 31, 2010, the Architectural ReviewCommittee (hereinafter ARC) had absolute authority to modify all restrictions by a majorityvote. The original developer was named as the ARC. That developer was further afforded theunbridled right to appoint "a successor or successors" as an ARC. The developer sold three lotsto defendant and appointed defendant as the ARC for those lots. There is nothing in thedocument preventing the developer from making such an appointment. Defendant's status as anARC provided it with the power pursuant to the terms of the controlling document to modify therestrictions, which it did as to the lot through which it plans to build a street. Since the terms ofthe document setting forth the restrictive covenants afford this type of very liberal modificationof the restrictions until December 31, 2010, defendant did not—as urged byplaintiffs—run afoul of the business judgment rule by utilizing those liberal modificationprocedures. We conclude that Supreme Court correctly granted defendant's motion for summaryjudgment dismissing the complaint.
The remaining issues raised by the parties, to the extent not rendered academic, have beenconsidered and found unavailing.
Mercure, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, with costs.