Opinion
February 1, 1971
In an action for a declaration as to the force and effect of a certain declaration of restrictive covenants by defendant's predecessor in the ownership of certain land, plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Westchester County, entered January 12, 1970, which (1) granted defendant's motion for summary judgment, (2) denied plaintiff's cross motion for summary judgment and (3) declared the covenants were void and that the permit to erect apartment houses which plaintiff had issued was valid. Order modified by striking therefrom all the decretal paragraphs except the one which denied plaintiff's cross motion and by adding thereto a provision that defendant's motion is denied. As so modified, order and judgment affirmed, without costs. Issues of fact are presented; such issues may be determined only after a trial. Munder, Acting P.J., Shapiro, Christ and Benjamin, JJ., concur; Martuscello, J., dissents and votes to reverse the order and judgment and (1) to grant summary judgment to plaintiff that the covenants are effective and bar issuance of the permit and (2) to deny defendant's motion, with the following memorandum: I find that the declaration of restrictions and restrictive covenants was intended to limit use of the property in question to retail businesses. The words "other businesses" were intended to parallel the following words in the preceding paragraph: "other buildings for retail businesses". The interpretation put forward by defendant would make the document a meaningless redundancy of the zoning classification. Further, the interpretation adopted in this memorandum is most consistent with the orderly development which contract zoning was intended to promote. [ 62 Misc.2d 122.]