Further, search of the Appellate Division's cases revealed only one case specifically addressing the consideration of zoning laws in the context of an action brought pursuant to RPAPL § 1951. In Matter of Zimmerman v Seven Corners Dev., the Fourth Department found the court properly extinguished a restrictive covenant when the zoning laws prohibited the use required by the restrictive covenant (237 AD2d 892, 893 [4th Dept 1997]). Accordingly, the court did not "misapprehend the law" when it considered the applicable zoning regulations in rendering the September order.

Here, Neri's amended complaint, even as supplemented by an affidavit from its owner and chief executive officer, contains only a bare and conclusory allegation that the restrictive covenant is of no actual and substantial benefit to Cassone. Moreover, the amended complaint failed to allege any reason why the restrictive covenant is of no actual and substantial benefit to Cassone, such as "the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment" (RPAPL 1951; see Matter of Zimmerman v Seven Corners Dev., 237 AD2d 892, 893). In fact, the allegations in the amended complaint, as well as the evidentiary material submitted by the parties in connection with the motion to dismiss, establish that the restrictive covenant clearly is of a substantial benefit to Cassone inasmuch as the restrictive covenant prevents competition by another bakery business at the premises, which is located less than a mile away from Cassone's bakery business.

Upon our review of the record, we conclude that defendants failed to prove that the restrictive covenant was "of no actual and substantial benefit" to plaintiffs (RPAPL 1951). "`The first and foremost factor to be considered [in determining whether to extinguish a restriction] is whether the property is capable of being put to the use required by the restriction'" ( Matter of Zimmerman v. Seven Corners Dev., 237 A.D.2d 892, 893, quoting Board of Educ., E. Irondequoit Cent. School Dist. v. Doe, 88 A.D.2d 108, 115; see Orange Rockland Utils. v. Philwold Estates, 52 N.Y.2d 253, 265). This is not a case in which, if the restrictive covenant is enforced, "there is no use whatsoever to which the restricted land can be put by [defendants]" ( Orange Rockland Utils., 52 N.Y.2d at 265).

In support of their argument that the lots could not be developed for residential purposes and therefore the purpose of the restrictive covenants was incapable of being accomplished, defendants cited several factors — the development's narrow configuration, a Niagara Mohawk Power Corporation easement adjacent to and within the development, and the presence of defendants' mines near the development. Each of these conditions, however, existed in 1974 and therefore do not constitute "changed conditions" rendering the purpose of the covenants incapable of being accomplished ( cf., Matter of Zimmerman v. Seven Corners Dev., 237 A.D.2d 892). Upon our review of the record, neither the development itself, which has remained residential in nature ( see, Gordon v. Incorporated Vil. of Lawrence, 84 A.D.2d 558, affd 56 N.Y.2d 1003), nor its surrounding area ( see, Meadow Run Dev. Corp. v. Atlantic Ref. Mktg. Corp., 155 A.D.2d 752) has undergone any significant changes since 1974.

sidered when balancing equities to determine whether a restrictive covenant is to be extinguished pursuant to RPAPL 1951 are the burden or hardship on the owner of the land subject to the restriction ( Chambers v. Old Stone Hill Rd. Assoc. , 1 NY3d 424 [2004] ; the extent of commercial development in the area surrounding the parcels subject to the covenant, the number of property owners who have voluntarily released their rights under the restriction ( Bd. of Educ. East Irondequott Central School Dist. v. Doe , 88 AD2d 108 [4th Dept 1982] ); whether the area maintains an exclusive residential nature, whether lot owners have placed a value on the restriction (Deak, supra ); whether the character of [the subdivision] has changed so as to defeat the object and purposes for which the protective covenants were imposed ( Water Song Dev. Corp. v. Dutchess , 38 Misc 3d 1230[A] [Sup Ct, Ontario County 2011] ; whether the property is capable of being put to the use required by the restriction ( Matter of Zimmerman , 237 AD2d 892 [4th Dept 1997] ); and whether the party seeking to extinguish the restriction purchased the property with knowledge of the restriction (The Nature Conservancy v. Congel , 296 AD2d 840 [4th Dept 2002], Cody v. Anthony Fabiano and Sons , 246 AD2d 726 [3rd Dept 1998] ). Here, the record discloses triable issues of fact concerning the factors the court must consider.