Opinion
Index No. 003355/2020
06-24-2022
MATTHEW J. HAMMILL and YOUMIE J. HAMMILL, Plaintiffs, v. JEROME A. LAZORE and LISA LAZORE, Defendants.
Unpublished Opinion
DECISION AND ORDER
Honorable Joseph E. Lamendola, J.S.C.
Plaintiffs commenced this action by filing a verified complaint on June 4, 2020, seeking a permanent injunction against Defendants, as well as declaratory judgment. The action arises out of allegations that Defendants are violating certain protective covenants which restrict construction on Defendants' parcels of real property located within the Oak Hills Estate subdivision, in the Town of Otisco, County of Onondaga, State of New York. Plaintiffs own and reside on an adjoining parcel in Oak Hills Estate. The issue was joined by the filing of Defendants' verified answer on August 19, 2020, as amended by the filing of an amended answer on September 8, 2020. Defendants assert that they are not in violation of the protective covenants at issue.
Plaintiffs and Defendants both purchased their respective properties from the same seller in 2018. Defendants purchased undeveloped lots 5, 6, and 7, closing on or about July 27, 2018. Plaintiffs purchased lot 9 and closed on or about August 15, 2018. As Defendants' undeveloped parcels were located between Plaintiffs' parcel and Otisco Lake, Plaintiffs requested, after the sale and prior to the closing, that Defendants not construct any buildings on Lot 6 to preserve Plaintiffs' view of the lake. Defendants agreed and that restriction is so reflected in their deed, solely as it relates to lot 6. All lots in the Oak Hills Estate subdivision are subject to the Protective Covenants for Oak Hill Estates (hereinafter "Protective Covenants") filed by the subdivision developer, James G. Edinger (hereinafter "Edinger"), on January 25, 1991. The covenants contain various restrictions on the construction and placement of structures within Oak Hill Estates.
In March of 2020, Defendants began construction on a three-car garage on lot 5. Shortly thereafter, in July of 2020, they began construction on a house on lot 7. Plaintiffs allege that both buildings are non-conforming and in violation of the Protective Covenants. They argue that the proposed garage is in fact a "barn" intended for commercial use in Defendants' furniture building business, and therefore is in violation of the Protective Covenant's proscription against non-residential building. They further allege both the garage on lot 5 and the house on lot 7 are in violation of the 50-foot side lot line setbacks from lot 6 as dictated by the Protective Covenants. Upon commencement of the present action, Plaintiffs sought and were granted a temporary restraining order which prohibited any further construction on lots 5 and 7, with the exception that Defendants were allowed to "undertake those actions which are reasonably necessary to maintain the existing construction in its current condition," and also excepting "roof shingles; siding; doors; and/or windows."
Both parties have moved for summary judgment pursuant to CPLR 3212. The court's function with respect to a motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957). Summary judgment has been described as a "drastic remedy" because it amounts to a finding by the court that there is no issue of fact to be resolved at a trial, thereby obviating the need for any trial at all. Andre v. Pomeroy, 35 N.Y.2d 361 (1974). The party seeking summary judgment is obliged to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986). Thus, the moving party must tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. Weinsrad v. New York Univ. Med Ctr., 64 N.Y.2d 851, 853 (1985).
Once that initial burden is satisfied, the "burden of production" shifts to the opponent, who must produce sufficient evidence in admissible form to establish the existence of a triable issue of fact. Alvarez, 68 N.Y.2d 320. The opponent's proffer must constitute more than "mere conclusions, expressions of hope or unsubstantiated allegations or assertions." Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). In the face of a motion for summary judgment, the party against whom it is sought is obligated to lay bare his proof, that is, to demonstrate by affidavit or otherwise that one or more triable issues of fact genuinely exist. If such proof is not forthcoming, summary judgment may well be the result. Id. The burden of persuasion, however, remains with the proponent of the issue; thus, if the evidence is equally balanced the movant will be found to have failed in meeting his burden of proof and summary judgment must be denied.
The court reviews a summary judgment motion in the light most favorable to the party opposing it, giving that party the benefit of every inference that may be reasonably and fairly drawn. Ugarriza v. Schmieder, 46 N.Y.2d 471, 475-6 (1979); Secore v. Allen, 27 A.D.3d 825 (3d Dept 2006). Through that prism, the court determines whether any triable issue of a material fact exists. If it does, then resolution of the issue must await trial. If it does not, then the court may summarily grant judgment without the need for a trial. Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395 (1957);Gadani v. Dormitory Authority of the State of New York, 43 A.D.3d 1218 (3d Dept 2007;, Raven Industries, Inc. v. Irvine, 40 A.D.3d 1241 (3d Dept 2007).
Additionally, upon a motion for summary judgment, the moving party is required to provide a separate statement of material facts. 22 NYCRR 202.8-g. The statement must set forth in numbered paragraphs those facts over which the "moving party contends there is no genuine issue to be tried," and each such statement "must be followed by citation to evidence submitted in support..." 22 NYCRR 202.8-g(a) and (c). This requirement has been in effect since February 1, 2021, over a year prior to the filing of the instant motion.
Defendants have failed to file a statement of material facts as required pursuant to 22 NYCRR 202.8-g. Plaintiffs drew attention to this deficiency in their opposition to Defendants' motion. Plaintiffs filed a statement of material facts in support of their own motion for summary judgment, as well as a counterstatement of material facts in opposition to Defendants' motion. Defendants did not file the required statement in opposition to Plaintiffs' statement of material facts as required pursuant to Rule 202.8-g(b). Defendants offer no explanation why they did not or could not comply with this rule. Defendants' failure to comply with Rule 202.8-g, even after being made aware of the deficiency, is a fatal defect and their motion for summary judgment must be denied. Amos Fin. LLC v. Crapanzano, 73 Misc.3d 448, 452-3 (Sup. Ct. Rockland Cty, 2021). While there are conflicting trial level decisions, the plurality of decisions dictates such a disposition where there has been a complete failure to comply on the part of the moving party. Id.; Luciano v. Islam, __NY Misc. 3rd __, 2022 NY Slip Op 22153 [Sup. Ct, Bronx Cty2022], Fetta v. Addison, Sup Ct Onondaga Cty, Jan. 11, 2022, Gilbert, J., Index No. 008114/2020; cf. Birds & Bubbles NYC LLC v. 100 Forsyth LLC, __NY Misc. 3rd __, 2022 NY Slip Op 50106(11) [Sup Ct, NY Cty 2022].
Were the Court, like Defendants, to ignore the mandates of Rule 202.8-g, the Court would reach the same conclusion, as a thorough review of the submissions reveal the existence of questions of material fact, as set forth below with respect to Plaintiffs' motion for summary judgment.
Turning to Plaintiffs' motion for summary judgment, Plaintiffs seek a permanent injunction enjoining Defendants from construction on lot 5, or any other construction on any of their lots which violates the Protective Covenants, and requiring the Defendants to remove all non-compliant structures from their lots. As the Defendants failed to comply with Rule 202.8-g(b), each of those statements contained within Plaintiffs' statement of material facts (NYSCEF #93) which are cited to supporting evidence are deemed admitted. Id.; Luciano v. Islam, __NY Misc. 3rd__, 2022 NY Slip Op 22153 [Sup. Ct., Bronx Cty2022], Fetta v. Addison, Sup Ct Onondaga Cty, Jan. 11, 2022, Gilbert, J., Index No. 008114/2020. Statements 1 through 20 and 22 through 24 are essentially uncontroverted in Defendants' supporting documentation. Paragraphs 21, 24, 26, and 27 are conclusory statements supported only by Plaintiffs' personal affidavits and therefore are not deemed admitted as violative of Rule 202.8-g's requirement that all statements of fact be supported by evidence adduced in the record.
In opposition to Plaintiffs' motion, Defendants have set forth proof that they are the owners of lots 5, 6, and 7, located at 1600 Ripley Road, in the Oak Hills Estate subdivision. The Onondaga County Department of Health required the combination of those lots before it would issue approval of the Defendants' septic system. The parcel has subsequently been issued a single tax identification number by the respective municipalities. Defendants filed a survey map ("Lazore Resubdivision") on September 8, 2021, with the Onondaga County Clerk's Office, identifying original lots 5, 6, and 7 as lot 6A. Defendants believe their lots are combined. Defendants obtained building permits from the Town of Otisco for both the garage (original lot 5) and house (original lot 7). The Protective Covenants allow for the building of a garage, provided it is no larger than a three-car garage, and a house, so long as it is a one-family dwelling no more than two stories in height. The documentary evidence provided by the Defendants reflect the construction of a three-car garage and a house within the height restrictions.
Plaintiffs argue that the size of the garage belies the Defendants' position that it is just a three car garage. However, there is nothing within the Protective Covenants that restricts the size (i.e. square footage) or height of such a garage. In marked contrast, the Protective Covenants restrict any dwelling to no more than two stories in height. No such restriction is set forth with respect to the garage. The only restrictions with respect to the garage are limited to its placement (i.e. line lot setbacks), its use for no more than three cars, and a prohibition against using it as a residence either temporarily or permanently. Contrary to Plaintiffs' position, there is no prohibition against the garage being two stories in height, nor any prohibition to having water or bathroom facilities therein. Additionally, Plaintiffs insistence that Defendants lots remain separate and distinct lots ignores the reality that nothing in the Covenants prevents Defendants from building a house on both lot 5 and lot 7. The Protective Covenants allow one dwelling per lot. Plaintiffs fail to set forth how the two-story garage is any more obstructive than a house would be on lot 5.
Plaintiffs allege that Defendants' garage and house, as situated, violate the Protective Covenants' side lot line setback restrictions. There is no question that both Defendants' lot 5 garage and lot 7 dwelling impinge on the side lot line setbacks as they relate to Lot 6, both structures being closer than 50 feet from the lot 6 side lot lines.. However, Defendants own Lot 6 and believe that they have combined lots 5, 6, and 7 into one parcel which they delineate as lot 6A. In fact, because of the layout of the septic system on lot 6 for the benefit of the lot 7 residence, the two lots are intertwined such that Defendants would be unable to sell them separately. Plaintiffs argue that Section 17 of the Protective Covenants prohibits Defendants from combining their lots into one lot. Section 17 very concisely states, "No lot shall be further subdivided." The plain language of that provision prohibits further subdivision of a singular "lot" (i.e., creating two or more lots from one). It is silent as to the question of combining multiple lots into one lot. As the only side lot line setbacks affected by the current building configuration impinge on adjoining property owned by Defendants, there exists a question as to whether such violates the Protective Covenants.
The parties spend a great deal of energy arguing about the validity and/or impact of the two purported Amendments to the Protective Covenants. The Court does not find this to be particularly helpful. The 2002 Amendment filed by Bruce Graham does not appear to be authorized by either the Protective Covenants or its declarant, James
Edinger. As its sole purpose appears to be the self-appointment of Bruce Graham, it is of no significance to the present motion. The 2020 Amendment signed by James Edinger in his capacity as ACC, does little to change the facts of the case. It purports to appoint the Defendants to the ACC; to "approve" the building plans and specifications for a garage on lot 5 and a house on lot 7; and "waives" section 1 of the Protective Covenants "to allow the construction of a three car garage" on Defendants' lot 5. It also repudiates the 2002 Graham Amendment. All other terms and conditions of the Protective Covenants remain in full force and effect. Notably, it does not change the remaining constraints set forth in section 1, nor the setback requirements, nor the prohibition set forth against noxious or offensive activity, and/or creation of a neighborhood nuisance, etc.
Plaintiffs make much of the "attempted waiver" of the provisions of section 1 of the Protective Covenants set forth in the 2020 Amendment, however, a close reading of that "waiver" reveals that it only allows for the construction of a three car garage. It is silent as to the other elements set forth in section 1. As the deposition of Defendant Jerome Lazore and the May 3, 2022 Affidavit of James Edinger establish, the physical plans and specifications were never provided to Edinger. (NYSCEF #79 & 122).
Which brings us Plaintiffs' allegations that the lot 5 garage is a non-conforming structure by virtue of its intended use by Defendants. The question of whether Defendants' intent to use their garage to build furniture violates the protective covenants is a question of fact. There is insufficient evidence before the Court to determine whether such use would be a hobby or be a "usual and ordinary use" allowable under paragraph 1 of the covenants, as opposed to a commercial enterprise that would violate said provision. For example, there is no evidence before the Court as to whether Defendants have reported their furniture building profits as hobby income or business income, nor how many consecutive years of profit they have earned on said furniture building.
Ultimately, there exists in the evidence adduced before the Court a number of issues of material fact which must be resolved by the finder of fact, and therefore summary judgment must be denied.
Accordingly, it is hereby
ORDERED, that Defendants' motion for summary judgment is DENIED, and it is further;
ORDERED, that Plaintiffs' motion for partial summary judgment is DENIED.
PAPERS CONSIDERED:
1) Defendants' Notice of Motion, filed March 18, 2022 (NYSCEF #65)
2) Defendants' Affidavit in Support, filed March 18, 2022 (NYSCEF #66)
3) Defendants' Exhibits, filed March 18, 2022 {NYSCEF #67-71)
4) Attorney Affirmation in Support, filed March 18, 2022 (NYSCEF #72)
5) Exhibits, filed March 18, 2022 (NYSCEF #73-87)
6) Defendant's Memorandum of Law in Support, filed March 18, 2022 (NYSCEF #88)
7) Plaintiffs' Notice of Motion, filed April 6, 2022 (NYSCEF #92)
8) Plaintiffs' Statement of Material Facts, filed April 6, 2022 (NYSCEF #93)
9) Attorney Affirmation in Support, filed April 6, 2022 (NYSCEF #94)
10) Exhibits, filed April 6, 2022 (NYSCEF #95-113)
11) Defendants' Reply - Attorney Affirmation, filed April 25, 2022 (NYSCEF #114)
12) Plaintiffs' Counterstatement of Material Facts in Opposition to Defendants' Motion for Summary Judgment, filed April 28, 2022 (NYSCEF #115)
13) Plaintiffs' Memorandum of Law in Opposition, filed April 28, 2022 (NYSCEF #116)
14) Exhibit, filed April 28, 2022 (NYSCEF #117)
15) Plaintiffs' Affidavit in Opposition, filed April 28, 2022 (NYSCEF#118)
16) Exhibit, filed April 28, 2022 (NYSCEF #119-120)
17) Plaintiffs' Attorney Reply Affirmation in Support, filed May 4, 2022 (NYSCEF #121)
18) Edinger Affidavit in Reply, filed May 4, 2022 (NYSCEF #122)
19) Plaintiffs' Memorandum of Law in Reply, filed May 4, 2022 (NYSCEF #123)