Opinion
February 4, 1994
Appeal from the Supreme Court, Wayne County, Strobridge, J.
Present — Denman, P.J., Green, Balio, Lawton and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court. We add only that, unlike Zaccaro v. Congregation Tifereth Israel ( 20 N.Y.2d 77) and other authority cited by defendants, plaintiffs did not delay in asserting their rights, and defendants were neither induced to act nor prejudiced by the silence or acquiescence of plaintiffs. Plaintiffs are not estopped from enforcing the deed restrictions by having ignored previous violations. "The plaintiffs are entitled to ignore inoffensive violations of the restriction[s] without forfeiting their right to restrain others which they find offensive" (Gordon v. Incorporated Vil. of Lawrence, 84 A.D.2d 558, 559, affd 56 N.Y.2d 1003; see also, Rowland v. Miller, 139 N.Y. 93, 103-104).
We reject defendants' contention that the restrictions are ambiguous or unclear. The commonly understood meaning of "outbuilding" excludes the excessively large structure erected by defendants, and the restrictions are sufficiently certain and clear to be enforceable.
Supreme Court did not abuse its discretion in denying defendants' motion to be permitted to bring the structure into conformity with the restrictions. In light of the circumstances that preceded defendants' completion of construction, defendants' "position does not appeal to the equitable conscience" (Westmoreland Assn. v. West Cutter Estates, 174 A.D.2d 144, 152).