| Rautenstrauch v Bakhru |
| 2009 NY Slip Op 05757 [64 AD3d 554] |
| July 7, 2009 |
| Appellate Division, Second Department |
| John P. Rautenstrauch, Appellant, v Aruna Bakhru,Respondent, et al., Defendant. |
—[*1] William Grace Crane, Poughkeepsie, N.Y., for respondent.
In an action to permanently enjoin the defendant Aruna Bakhru from using a portion of herprimary residence to attend to medical patients, the plaintiff appeals from so much of an order ofthe Supreme Court, Dutchess County (Sproat, J.), dated October 21, 2008, as granted that branchof the cross motion of the defendant Aruna Bakhru which was for summary judgment dismissingthe complaint insofar as asserted against her.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff and the defendant Aruna Bakhru (hereinafter the defendant) both own andreside in single-family residences on adjacent properties. The parcels derive from a commongrantor. The defendant, a medical doctor, admittedly uses a portion of her home to treat a limitednumber of patients, for which she obtained a special use permit from the Town of PoughkeepsieZoning Board of Appeals. The plaintiff commenced this action to permanently enjoin thedefendant from using a portion of her home to attend to patients by enforcing restrictivecovenants in the respective deeds to the properties, which provide, in relevant part, that"1. The premises hereby conveyed shall be used for residential purposes only.2. No building shall be erected . . . on any lot other than one detached single familydwelling, to be occupied by not more than one family for residential purposes . . . 8. No business and/or commercial enterprise of any description shall be conducted or carried onupon said premises and the terms 'business and/or commercial enterprise' shall includemanufacturing of every type. The use of any portion of said premises for the raising or care ofany animals for commercial purposes is prohibited, and no animals, other than household pets,shall be kept on the premises, nor shall the premises be used for the business of any hospital,either public or private, for the care of those suffering from any disease or diseases, nor shall anybuilding be used for a private school or nursery."[*2]
The plaintiff argues that the restrictive covenants,separately and together, prohibit the subject activity. Despite the special use permit, "a particularuse of land may be enjoined as in violation of a restrictive covenant, although the use ispermissible under the zoning ordinance" (Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 432 [2004]).Unless unambiguous, however, such restrictive covenants do not prohibit the incidental use of aprimary residence for professional work conducted in a manner which does not disturb theresidential character of the neighborhood (see Schnibbe v Glenz, 245 NY 388, 392[1927]; 9394 LLC v Farris, 10AD3d 708, 710 [2004]; Ginsberg v Yeshiva of Far Rockaway, 74 Misc 2d 391, 394[1973], affd 45 AD2d 334 [1974], affd 36 NY2d 706 [1975]). Where a restrictivecovenant is ambiguous, the covenant is strictly construed against those seeking to enforce it andthe court must interpret the covenant to limit its restriction (see 9394 LLC v Farris, 10AD3d at 709; Premium Point Park Assn., Inc. v Polar Bar, Inc., 282 App Div 735[1953], affd 306 NY 507 [1954]). A covenant is ambiguous when it is capable of morethan one interpretation or, in other words, when it does not unequivocally prohibit a use (seeTurner v Caesar, 291 AD2d 650, 652 [2002]). "[A]ll doubts and ambiguities must beresolved in favor of the natural right to the free use and enjoyment of property and againstrestrictions" (Kjerner v Hayhurst, 193 App Div 908, 909 [1920]; see Schoonmaker vHeckscher, 171 App Div 148, 151 [1916], affd 218 NY 722 [1916]). Whether awriting is ambiguous is a question of law to be resolved by the court (see 9394 LLC vFarris, 10 AD3d at 709-710).
On her cross motion, the defendant made a prima facie showing of entitlement to judgmentas a matter of law by demonstrating that the subject covenants in the deed are ambiguous and donot unequivocally prohibit the subject activity (see 9394 LLC v Farris, 10 AD3d at 709;Ginsberg v Yeshiva of Far Rockaway, 74 Misc 2d at 394). Covenant No. 8 specificallyexcludes businesses and commercial enterprises, which would inject significant traffic and noiseinto the neighborhood, but does not specifically exclude professional work (see Schnibbe vGlenz, 245 NY at 392; 9394 LLC v Farris, 10 AD3d at 710; Iselin v Flynn,90 Misc 164, 169 [1915]). Further, although covenant No. 8 specifically excludes a hospital, itdoes not unequivocally exclude a limited medical practice (see Ginsberg v Yeshiva of FarRockaway, 74 Misc 2d at 394). Moreover, the inclusion of covenant No. 8 would have beenunnecessary if covenant No. 1 is construed to exclude all nonresidential activity. Thus, theSupreme Court correctly concluded that the restrictive covenants, when read as a whole, areambiguous.
The defendant submitted evidence that the premises are her primary residence, where sheresides with her children and husband, and that she sees from zero to two patients per day in herfamily room. She also submitted evidence that there are no signs or telephone listings advertisingher practice, and that the subject activity contributes no unsuitable added noise, pedestriantraffic, or vehicular traffic to the neighborhood. Thus, the defendant established as a matter oflaw that the subject activity is incidental to her primary use of the premises as her residence, thatthe activity is not readily discernible to the public, and that it does not diminish the residentialcharacter of the neighborhood (see Schnibbe v Glenz, 245 NY at 392; 9394 LLC vFarris, 10 AD3d at 710).
In opposition to the cross motion, the plaintiff submitted, inter alia, his affidavit, in which hestates that three or four people, whom he believes to be patients, visit the defendant's premises ina "typical day." Such evidence did not raise a triable issue of fact sufficient to defeat thedefendant's cross motion. Accordingly, the Supreme Court correctly granted that branch of thedefendant's cross motion which was for summary judgment dismissing the complaint insofar asasserted against her.
The plaintiff's remaining contentions are without merit. Rivera, J.P., Dillon, Balkin andAustin, JJ., concur.