Restrictive Covenant
Today we wanted to bring your attention to a Second Department decision wherein the Court affirmed a lower Court’s decision to dismiss a Plaintiff motion for an Injunction seeking to enforce a Restrictive Declaration recorded solely against a neighbor’s property. The decision, in part, turned on the fact that the Plaintiff’s property was not adversely affected by the violation of the Restrictive Declaration and not whether the Defendant actually violated the recorded Restrictive Declaration.
The relevant facts of, as well as a link to, the case are set forth below.
The Plaintiff sought to enforce a restrictive covenant prohibiting the Defendant from building a second garage on the Defendant’s abutting property. The Supreme Court, Rockland County, denied the Plaintiff’s motion for a preliminary injunction and granted the Defendant’s cross-motion to dismiss the complaint. The Appellate Division, Second Department, affirmed the lower court’s ruling. According to the Appellate Division,…the defendant’s submissions utterly refuted the plaintiff’s claim of standing to enforce the restrictive covenant arising from a deed originally conveying the defendant’s property, inter alia, by showing that the plaintiff’s property did not benefit from the restrictive covenant and that the plaintiff had no equitable right to enforce the covenant [citations omitted].” Katz v. DePaola, 2022 NY Slip Op 07441, decided December 28, 2022, is posted at: https://www.nycourts.gov/reporter/3dseries/2022/2022_07441.htm
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