| Dever v DeVito |
| 2011 NY Slip Op 03938 [84 AD3d 1539] |
| May 12, 2011 |
| Appellate Division, Third Department |
| Lisa L. Dever, Respondent, v Mark DeVito et al.,Appellants. |
—[*1] Powers & Santola, L.L.P., Albany (Michael J. Hutter of counsel), for respondent.
Peters, J.P. Appeal from an order of the Supreme Court (Muller, J.), entered April 21, 2010in Essex County, which, among other things, denied defendants' cross motion for summaryjudgment dismissing the amended complaint.
The parties own adjoining parcels of property within the Chipmunk Lane Association, Inc.subdivision in the Town of North Elba, Essex County. Defendants purchased their waterfront lot,which is positioned between plaintiff's property and Lake Placid, in 2007 and sought to demolishthe dilapidated house situated on the property and build a new home there. Defendants' architectdrafted plans for the new home, but plaintiff took issue with them, primarily because she wasconcerned that the new, larger home would obstruct her view of the lake.
In June 2008, after defendants' initial plans had been approved by the Joint Review Board ofthe Village of Lake Placid/Town of North Elba, plaintiff commenced this action to enjoin theconstruction of defendants' home and for money damages, claiming that the proposedconstruction violated certain restrictive covenants applicable to the properties within ChipmunkLane. Defendants thereafter hired a second architect, Andrew Chary, who developed new planswhich, among other things, decreased the size of the proposed home. Those plans wereeventually approved by the Joint Review Board and the Adirondack Park Agency. After meetingwith Chary to review the new plans, and apparently agreeing that the new design was better thanthe original and securing defendants' agreement to further reduce the roof ridge line height of theproposed home, plaintiff pressed forward with this litigation and amended her complaint, thistime omitting her claims for damages.[*2]
Plaintiff thereafter moved for a preliminary injunction,which motion was denied by Supreme Court. Although she filed a notice of appeal from thatorder, the appeal was ultimately withdrawn. In November 2009, after construction of defendants'home was underway, plaintiff moved for leave to amend her complaint a second time for thepurpose of reasserting a claim for damages and adding necessary parties, and defendantscross-moved for summary judgment dismissing the amended complaint. Supreme Court grantedplaintiff's motion and denied defendants' cross motion. This appeal by defendants ensued.
Initially, we reject defendants' assertion that plaintiff lacks standing to commence this action.The covenants at issue are part of a common development scheme created for the benefit of allproperty owners within Chipmunk Lane. Plaintiff therefore has standing to enforce the restrictivecovenants against any other individual property owner within the development (see Irish vBesten, 158 AD2d 867, 867 [1990]; Matter of Van Euclid Co. v Sargent, 97 AD2d913, 914-915 [1983]).
We are similarly unpersuaded that Supreme Court erred in granting plaintiff's motion forleave to amend her complaint. "As a general rule, leave to amend a pleading rests within the trialcourt's discretion and should be freely granted in the absence of prejudice or surprise resultingfrom the delay except in situations where the proposed amendment is wholly devoid of merit"(Bast Hatfield, Inc. v Schalmont Cent.School Dist., 37 AD3d 987, 988 [2007] [internal quotation marks and citations omitted];see Gersten-Hillman Agency, Inc. vHeyman, 68 AD3d 1284, 1289 [2009]). Here, plaintiff sought to amend the complaint asecond time to add necessary parties and reallege her claim for money damages. As defendantsthemselves raised the issue that the parties named in the second amended complaint must beadded to accord full relief, we discern no abuse of discretion by Supreme Court in permitting thecomplaint to be amended in this regard. Furthermore, inasmuch as a claim for money damageswas contained in the original complaint and " 'rests on the same factual circumstances as thoseforming the basis of the original [and first amended] complaint' " (Acker v Garson, 306AD2d 609, 610 [2003], quoting Kaplan v Sparks, 192 AD2d 1119, 1120 [1993]), we findno evidence that defendants would be surprised or prejudiced by amending the complaint in thisregard. Contrary to defendants' contention, the proposed verified second amended complaint andattorney affidavit submitted by plaintiff supplied the requisite evidentiary support for the moneydamages claim (see Bast Hatfield, Inc. v Schalmont Cent. School Dist., 37 AD3d at 988;McFarland v Michel, 2 AD3d1297, 1300 [2003]; Farrell v K.J.D.E. Corp., 244 AD2d 905, 905 [1997]).
We do agree, however, that to the extent that plaintiff seeks to enjoin the construction ofdefendants' replacement home as violative of the restrictive covenants, the issue is now moot.While plaintiff sought a preliminary injunction and appealed to this Court when that relief wasdenied, she did not seek a stay in this Court, eventually withdrew her appeal and thereafter failedto pursue any additional legal relief to preserve the status quo or prevent further construction ofdefendants' residence (see Matter ofAbate v City of Yonkers, 10 AD3d 605, 607 [2004], lv dismissed and denied 4NY3d 736 [2004]; Matter of Zimmerman v Planning Bd. of Town of Schodack, 294AD2d 776, 778 n 2 [2002], lv denied 98 NY2d 612 [2002]; Matter of Padavan v Cityof New York, 291 AD2d 561 [2002]; Matter of Gorman v Town Bd. of Town of E.Hampton, 273 AD2d 235, 236 [2000], lv denied 96 NY2d 703 [2001];Vanderwoude v Post/Rockland Assoc., 192 AD2d 702, 702-703 [1993]). In the interim,defendants' home was fully constructed, at a cost upwards of $1 million, and they have nowmoved into the residence. Furthermore, defendants did not proceed with construction in badfaith. To the contrary, defendants did not begin construction until nearly 1½ years after thisaction was commenced and following the [*3]denial of plaintiff'smotion for a preliminary injunction, and only after pursuing and obtaining all necessaryapprovals and permits. Thus, it cannot be said that defendants "race[d] to completion" in order todefeat plaintiff's rights to judicial review, or that they otherwise proceeded in bad faith or withoutauthority (Matter of CitineighborsCoalition of Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d727, 729 [2004]; see Matter ofWallkill Cemetery Assn., Inc. v Town of Wallkill Planning Bd., 73 AD3d 1189, 1191[2010]; Matter of Mehta v Town ofMontour Zoning Bd. of Appeals, 4 AD3d 657, 658 [2004]). Moreover, given that theconstruction of the house is now complete, such work could not be readily undone without unduehardship, and substantial prejudice to defendants would result if plaintiff prevailed on her claimsfor injunctive relief under these circumstances (see Matter of Citineighbors Coalition ofHistoric Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d at 729; Sutherland v New York City Hous. Dev.Corp., 61 AD3d 479, 479-480 [2009], lv denied 13 NY3d 703 [2009]).Therefore, upon weighing these relevant factors to the mootness doctrine (see Matter ofCitineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Preserv.Commn., 2 NY3d at 729; Matter of Dreikausen v Zoning Bd. of Appeals of City of LongBeach, 98 NY2d 165, 172-173 [2002]), we conclude that plaintiff's claim for injunctive reliefis moot.
Addressing the merits of this dispute, defendants argue that Supreme Court improperlydenied their cross motion for summary judgment dismissing the complaint since plaintiff failedto establish the applicability or violation of any restrictive covenant. "[T]he law favors 'free andunencumbered use of real property, and covenants restricting use are strictly construed againstthose seeking to enforce them' " (Van Schaick v Trustees of Union Coll., 285 AD2d 859,860 [2001], lv denied 97 NY2d 607 [2002] [2001], quoting Witter v Taggart, 78NY2d 234, 237 [1991]; see Rugby Rd.Corp. v Doane Bldrs., Inc., 61 AD3d 1157, 1158 [2009]). Moreover, courts will enforcesuch restraints only where the party seeking enforcement establishes their application by clearand convincing evidence (see Witter v Taggart, 78 NY2d at 237-238; Van Schaick vTrustees of Union Coll., 285 AD2d at 860; Gitlen v Gallup, 241 AD2d 856, 858[1997]).
Initially, we agree with defendants that the restrictive covenant contained in article II, section4 of the Declaration of Covenants does not apply to their replacement house. The covenantprovides: "No additional building shall be permitted to be erected on any parcel save a privategarage, dock not to exceed 200 sq. feet or encroaching 20 feet into Lake Placid and/or utilitybuilding which conforms in appearance to the residence structure on the same parcel and thenonly with the specific approval of the [Chipmunk Lane Association] Board of Directors as tosize, type of construction and location. No such additional building shall be located in such a wayas to interfere or unreasonably restrict or block a view from an adjoining lot or cottage. Thereshall be no construction of any new residential building unless the existing building is firstdemolished." As the plain language of that covenant makes clear, it prohibits only the erection of"additional buildings," with the exception of certain garages, docks or utility buildings. Wetherefore find, as a matter of law, that the covenant at issue does not apply to a replacementdwelling such as that at issue here.[*4]
As for plaintiff's other claimed violations of variousrestrictive covenants, we find—with the exception of defendants' construction of aboathouse—that defendants made a prima facie showing through the affidavits of Charyand defendant Mark DeVito that the cited covenants are not applicable or that the proposed workdid not violate any such covenants. The affidavit of counsel submitted by plaintiff in oppositionto defendants' cross motion, which did nothing more than list the other claimed violations, wasinsufficient to raise a triable question of fact (see 9394 LLC v Farris, 10 AD3d 708, 710-711 [2004], lvdenied 4 NY3d 705 [2005]). With respect to their boathouse, defendants merely asserted thatno covenant prevents them from constructing one on their property. We agree with plaintiff thatquestions of fact remain as to whether the previously quoted covenant prohibiting "additionalbuildings" applies to the erection of a boathouse.
Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as denied defendants' cross motion for summaryjudgment dismissing plaintiff's second amended complaint; cross motion partially granted bydismissing all causes of action of said complaint except plaintiff's claim that defendants'boathouse violates article II, section 4 of the Declaration of Covenants; and, as so modified,affirmed.