| Emerald Green Prop. Owners Assn., Inc. v Jada Developers,LLC |
| 2009 NY Slip Op 05046 [63 AD3d 1396] |
| June 18, 2009 |
| Appellate Division, Third Department |
| Emerald Green Property Owners Association, Inc.,Respondent, v Jada Developers, LLC, Appellant. |
—[*1] Marvin Newberg, Monticello, for respondent.
Mercure, J.P. Appeal from an order of the Supreme Court (Meddaugh, J.), entered May 20,2008 in Sullivan County which, among other things, granted plaintiff's motion for a preliminaryinjunction.
In March 2007, defendant, a home builder, purchased 18 unimproved lots in the EmeraldGreen subdivision in the Town of Thompson, Sullivan County; plaintiff is the property owners'association for the development. The deed to each lot contained restrictive covenants requiring,among other things, that defendant become a member of plaintiff, pay annual dues and obtainapproval from plaintiff prior to commencing construction or landscaping. Shortly after defendantpurchased the lots, it informed plaintiff that it was not obligated to comply with the restrictivecovenants. It then began construction on its lots, and plaintiff issued a stop work order. Whenconstruction nevertheless continued, plaintiff commenced this action for, among other things, apermanent injunction enforcing the restrictive covenants. Plaintiff further moved by order toshow cause for a temporary restraining order and for a preliminary injunction enjoining furtherconstruction until defendant complied with the restrictive covenants. Supreme Court ultimatelyissued a preliminary injunction, and defendant appeals.
We affirm. It is well settled that a "party seeking a preliminary injunction must demonstratea probability of success on the merits, danger of irreparable injury in the absence of an injunctionand a balance of equities in its favor" (Nobu Next Door, LLC v Fine Arts Hous., [*2]Inc., 4 NY3d 839, 840 [2005]; see Matter of Kalichman, 31 AD3d1066, 1067 [2006]). Particularly relevant here, the requirement that the movant demonstratea likelihood of success on the merits "does not compel a demonstration that success on the meritsis practically a certitude[;] . . . the mere fact that there indeed may be questions offact for trial does not preclude a court from exercising its discretion in granting an injunction"(Egan v New York Care Plus Ins. Co., 266 AD2d 600, 601 [1999]). Moreover, ourreview of a decision to grant or deny a preliminary injunction is limited to a determination ofwhether Supreme Court abused its discretion (see Nobu Next Door, LLC v Fine Arts Hous.,Inc., 4 NY3d at 840; Honeywell Intl. v Freedman & Son, 307 AD2d 518, 519[2003]).
Defendant asserts that plaintiff has failed to demonstrate a likelihood of success on themerits because, it maintains, the restrictive covenants at issue are unenforceable. Specifically,defendant contends that the covenants cannot be said to be part of a general plan or scheme ofuniform development because they have not been enforced universally and withreciprocity—i.e., 69 lots were exempted and, separately, plaintiff entered into a stipulationof settlement in connection with seven lawsuits commenced by another builder that exemptedcertain other lots. In our view, however, plaintiff established that the unambiguous restrictivecovenants contained in defendant's deeds, of which defendant indisputably had knowledge at thetime it purchased the lots, were "entered into with the design to carry out a general scheme forthe improvement or development of" Emerald Green (Westmoreland Assn. v West CutterEstates, 174 AD2d 144, 151 [1992]; see Huggins v Castle Estates, 36 NY2d 427,432 [1975]; see also Chambers v OldStone Hill Rd. Assoc., 1 NY3d 424, 431 [2004]). In addition, plaintiff made a sufficientshowing in this procedural context that the 69 exempted lots—out of approximately1,000—were unimprovable, and that the lots covered by the stipulation of settlement wereexempted only in exchange for a $1,000 transfer fee upon the sale of each parcel andmembership in plaintiff by the new owner. Under these circumstances, the exemption of a smallpercentage of the total number of lots cannot be said to defeat the purpose of the restrictions ordefinitively refute the existence of a general plan of uniform development (see Steinmann vSilverman, 14 NY2d 243, 246 n [1964]; Graham v Beermunder, 93 AD2d 254,261-262 [1983], lv dismissed and denied 60 NY2d 553, 630 [1983]; cf. Huggins vCastle Estates, 36 NY2d at 432-433). Accordingly, inasmuch as Supreme Court properlyconcluded that plaintiff demonstrated a likelihood of success on the merits and there is noindication that the court abused its discretion in granting the preliminary injunction, we find nobasis for disturbing the court's determination.
Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,with costs.