Opinion
2021–07696 Index No. 605314/20
09-13-2023
EZEKILLS CONSTRUCTION, LLC, appellant, v. David SASKAS, et al., respondents.
Sahn Ward Braff Koblenz, PLLC, Uniondale, NY (Jon A. Ward and Andrew M. Roth of counsel), for appellant. Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead, NY (Kathryn M. Dalli and Joan M. McGivern of counsel), for respondents.
Sahn Ward Braff Koblenz, PLLC, Uniondale, NY (Jon A. Ward and Andrew M. Roth of counsel), for appellant.
Twomey, Latham, Shea, Kelley, Dubin & Quartararo, LLP, Riverhead, NY (Kathryn M. Dalli and Joan M. McGivern of counsel), for respondents.
MARK C. DILLON, J.P., LARA J. GENOVESI, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for breach of a restrictive covenant, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated October 1, 2021. The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the second cause of action, and denied those branches of the plaintiff's cross-motion which were for summary judgment on the issues of liability and damages on that cause of action.
ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the second cause of action, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof denying that branch of the plaintiff's cross-motion which was for summary judgment on the issue of liability on the second cause of action, and substituting therefor a provision granting that branch of the cross-motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The plaintiff and the defendants owned adjacent lots in the Village of North Haven, and both properties are governed by certain restrictive covenants. The covenants require, among other things, that property owners obtain approval from the Board of Directors of the community's homeowners association (hereinafter the Board) before proceeding with any "change in landscaping." A dispute between the parties arose when the defendants planted a row of red cedar trees, approximately 20 feet in height, adjacent to the property line that they share with the plaintiff. According to the plaintiff, the trees obstructed the water view from its property. It is undisputed that the defendants did not seek approval from the Board prior to planting the trees.
In March 2020, the plaintiff commenced this action, alleging, in the second cause of action, that the defendants breached the restrictive covenant requiring Board approval prior to making changes in the landscape, and that the plaintiff was entitled to $4 million in damages. Thereafter, the defendants moved for summary judgment dismissing the complaint, and the plaintiff cross-moved for summary judgment on the complaint. The Supreme Court, inter alia, granted that branch of the defendants' motion which was for summary judgment dismissing the second cause of action and denied those branches of the plaintiff's cross-motion which were for summary judgment on the issues of liability and damages on that cause of action. The plaintiff appeals.
"The law has long favored free and unencumbered use of real property, and covenants restricting use are ‘strictly construed against those seeking to enforce them’ " ( Hidalgo v. 4–34–68, Inc., 117 A.D.3d 798, 800, 988 N.Y.S.2d 64 [internal quotation marks omitted]). A restrictive covenant "may not be given an interpretation extending beyond the clear meaning of its terms" ( Ford v. Fink, 84 A.D.3d 725, 726, 924 N.Y.S.2d 94 [internal quotation marks omitted]). "However, where proved by clear and convincing evidence [it is] to be enforced pursuant to [its] clear meaning" ( Blind Brook Club, Inc. v. Murray, 255 A.D.2d 347, 348, 679 N.Y.S.2d 671 ).
Here, the defendants failed to establish their prima facie entitlement to summary judgment in their favor dismissing the second cause of action. Contrary to the defendants' contention, they failed to eliminate the existence of a triable issue of fact because clear and convincing evidence established that the planting of the trees constituted a "change in landscaping" that required approval from the Board. Moreover, for similar reasons, in support of its cross-motion the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the issue of liability with respect to the second cause of action, and the defendant failed to raise a triable issue of fact in opposition to the cross-motion.
Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was for summary judgment dismissing the second cause of action and granted that branch of the plaintiff's cross-motion which was for summary judgment on the issue of liability on the second cause of action.
However, there are issues of fact concerning whether the plaintiff sustained damages and the amount of those damages as a result of the breach of the restrictive covenant (see New York City Economic Dev. Corp. v. T.C. Foods Import & Export Co., Inc., 46 A.D.3d 778, 778, 847 N.Y.S.2d 669 ; Binghamton Plaza, Inc. v. Gilinsky, 32 A.D.2d 994, 994, 301 N.Y.S.2d 921 ).
DILLON, J.P., GENOVESI, FORD and TAYLOR, JJ., concur.