Opinion
August 17, 1992
Appeal from the Supreme Court, Suffolk County (Namm, J.).
Ordered that the order is reversed, on the law, without costs or disbursements, and the complaint is dismissed.
Pursuant to RPAPL 1951 (2), in order for a restriction on the use of land to be declared unenforceable it must appear "that the restriction is of no actual and substantial benefit to the persons seeking its enforcement". In their complaint, the plaintiffs fail to make any such allegation. Although it need not be alleged that a restriction on the use of land is of no benefit to the party seeking to enforce it before such a restriction can be declared unenforceable pursuant to RPAPL 1951 (see, Orange Rockland Utils. v. Philwold Estates, 52 N.Y.2d 253, 266; Board of Educ. v. Doe, 88 A.D.2d 108), it must nevertheless be alleged and proven that the restriction is of no "actual and substantial benefit" (see, RPAPL 1951). Because the complaint was deficient in this respect, it is dismissed for failure to state a cause of action.
In view of the foregoing, we need not reach the Village's remaining contention. Balletta, J.P., Miller, Pizzuto and Santucci, JJ., concur.