Although the Alteration Agreement is not specifically described in the Condominium defendants' answer, pleadings should be liberally construed and defects ignored unless a substantial right is prejudiced ( seeCPLR 3026; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Hendrickson v. Philbor Motors, Inc., 102 A.D.3d 251, 255, 955 N.Y.S.2d 384;Youssef v. Triborough Bridge & Tunnel Auth., 24 A.D.3d 661, 661, 808 N.Y.S.2d 362;Taft v. Shaffer Trucking, 52 A.D.2d 255, 257, 383 N.Y.S.2d 744). Upon review of the Condominium defendants' answer, a cross claim for contractual indemnification may be “implied from its statements by fair and reasonable intendment” ( Korenman v. Zaydelman, 237 A.D.2d 711, 713, 654 N.Y.S.2d 452 [internal quotation marks omitted]; see Biance v. Columbia Washington Ventures, LLC, 12 A.D.3d 926, 928, 785 N.Y.S.2d 144;Vitale v. Fowler Oil Co., 238 A.D.2d 794, 795, 656 N.Y.S.2d 453), and, contrary to Tomchinsky's contentions, the cross claim is not solely for contribution or limited by a contingency as to the Condominium defendants' liability.

Even applying the common-law definition, given that “[o]ne who, by intentional action or inaction, substantially and unreasonably interferes with others' use and enjoyment of their lands has committed a private nuisance” ( Doin v. Champlain Bluffs Dev. Corp., 68 A.D.3d 1605, 1611–1612, 894 N.Y.S.2d 169 [2009],lv. dismissed14 N.Y.3d 832, 900 N.Y.S.2d 724, 926 N.E.2d 1229 [2010] ), we would still find that plaintiffs have stated a cause of action based on violation of the restrictive covenant ( see Korenman v. Zaydelman, 237 A.D.2d 711, 712, 654 N.Y.S.2d 452 [1997] ).

Turning to Stone Bridge's remaining procedural challenges, we reject its argument that BBL and the developers failed to adequately plead a claim for contractual indemnification. Upon our review of BBL's and the developers' answers, we conclude that a claim for contractual indemnification may be "implied from its statements by fair and reasonable intendment" ( Korenman v. Zaydelman, 237 AD2d 711, 713 [internal quotation marks omitted]; see Vitale v. Fowler Oil Co., 238 AD2d 794, 795). Finally, we agree with Supreme Court that Stone Bridge waived its contractual right to arbitration by aggressively availing itself of the judicial process ( see Johanson Resources v. La Vallee, 271 AD2d 832, 836; cf. Matter of Riggi [Lupe Constr. Co.], 176 AD2d 1177, 1178-1179). Ordered that the order is affirmed, with costs.

The first — that their mining operations do not contravene the restrictive covenants — is patently frivolous and warrants little comment. Given the clear and unambiguous language of the restrictive covenants of which defendants had record notice when they acquired the property, commercial mining is precluded in the development and plaintiffs proved by clear and convincing evidence that they were entitled to summary judgment ( see, e.g., Korenman v. Zaydelman, 237 A.D.2d 711, 712-713; Irish v. Besten, 158 A.D.2d 867, 868; cf., Gitlen v. Gallup, 241 A.D.2d 856). Also without merit is defendants' contention that they were entitled to extinguishment of the covenants pursuant to RPAPL 1951.

Although we need not accept as true legal conclusions or factual allegations that "are either inherently incredible or flatly contradicted by documentary evidence" (Quail Ridge Assocs. v Chemical Bank, 162 A.D.2d 917, 918, lv dismissed 76 N.Y.2d 936), the mere fact that the allegations are informally or imperfectly stated does not provide a basis for dismissal ( see, Korenman v Zaydelman, 237 A.D.2d 711, 713). Here, plaintiffs have alleged — albeit inartfully and somewhat confusingly — that they are the owners of the property in question.

In the absence of a showing of prejudice ( see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 959), we find that Supreme Court properly granted plaintiffs' leave to serve the second amended complaint. As to the sufficiency of these pleadings, we have recently reiterated that, "'"[h]owever imperfectly, informally, or even illogically the facts may be stated, a complaint, attacked for insufficiency, [must be] deemed to allege 'whatever can be implied from its statements by fair and reasonable intendment'"'" ( Korenman v. Zaydelman, 237 A.D.2d 711, 713, quoting Camarda v. Vanderbilt, 100 A.D.2d 836, quoting Condon v. Associated Hosp. Serv., 287 N.Y. 411, 414, quoting Kain v. Larkin, 141 N.Y. 144, 151). The facts here allege the lawful installation of the tanks, a demand made upon the original installer to remove them and a refusal.

Whether a covenant is personal only to the grantee or runs with the land so that it may be enforced by a stranger to the deed depends upon (1) whether the grantor and grantee intended that the covenant run with the land (2) whether the covenant touches and concerns the land, and (3) whether there is privity of estate between the party seeking enforcement and the party burdened by the covenant (see, Neponsit Prop. Owners' Ass'n . Emigrant Indus. Sav. Bank, 278 NY 248, 255 [1938]; Korn v Campbell, 192 NY 490 [1908]). Finally, courts will enforce restrictive covenants only "where the party seeking enforcement establishes their application by clear and convincing evidence" (Dever v DeVito, 84 AD3d at 1542 [2011]; VanSchaick v Trustees of Union Coll., 285 AD2d 859, 860 [2001], lv denied 97 NY2d 607; Korenman v Zaydelman, 237 AD2d 711, 711 [1997]).

When doing so, the Court must afford the complaint a liberal construction, accept as true the allegations contained therein, and accord the proponent of the cause of action the benefit of every favorable inference and cognizable legal theory (Skibinsky v. State Farm Fire & Cas. Co., 6 AD3d 975 [3rd Dept.2004] ; 1455 Washington Ave. Assoc. v. Rose & Kiernan, Inc., 260 A.D.2d 770 [3rd Dept.1999] ). Further, whatever can reasonably be implied from allegations in the pleadings and plaintiff's supporting affidavits must be deemed to be true (Cron v. Hargro Fabrics, 91 N.Y.2d 362 [1998] ; Korenman v. Zaydelman, 237 A.D.2d 711 [3rd Dept.1997] ). This same standard applies to motions pursuant to CPLR § 3211(a)(5) (Gingold v. Beekman, 183 A.D.2d 870 [2nd Dept.1992] ).

When doing so, the Court must afford the petition a liberal construction, accept as true the allegations contained therein, and accord the proponent of the cause of action the benefit of every favorable inference and cognizable legal theory (Hurrell-Harring v State of New York, 15 NY3d 8, 20 [2010]; EBC I. Inc. v Goldman. Sachs & Co., 5 NY3d 11, 19 [2005]; SUS. Inc. v St. Paul Travelers Group, 75 AD3d 740, 741-742 [3d Dept., 2010]; Shebar v Metropolitan Life Ins. Co., 25 AD3d 858,859 [3d Dept., 2006]; Skibinskv v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [3d Dept., 2004]; 1455 Washington Ave. Assoc. v Rose & Kiernan. Inc., 260 AD2d 770,771 [3d Dept., 1999]). Further, whatever can reasonably be implied from allegations in the pleadings and petitioners' supporting affidavits must be deemed to be true (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Korenman v Zavdelman, 237 AD2d 711, 713 [3d Dept., 1997]). Unlike motions for summary judgment, the Court's sole inquiry on this motion to dismiss is whether the facts alleged in the petition fit within a cognizable legal theory.

When doing so, the Court must afford the complaint a liberal construction, accept as true the allegations contained therein, and accord the proponent of the cause of action the benefit of every favorable inference and cognizable legal theory (Skibinsky v. State Farm Fire & Cas. Co., 6 AD3d 975 [3rd Dept.2004] ; 1455 Washington Ave. Assoc. v. Rose & Kiernan, Inc., 260 A.D.2d 770 [3rd Dept.1999] ). Further, whatever can reasonably be implied from allegations in the pleadings and plaintiff's supporting affidavits must be deemed to be true (Cron v. Hargro Fabrics, 91 N.Y.2d 362 [1998] ; Korenman v. Zaydelman, 237 A.D.2d 711 [3rd Dept.1997] ).