Gedney Ass'n, Inc. v. Common Council of White Plains

209 A.D.3d 1019

176 N.Y.S.3d 702

In the Matter of GEDNEY ASSOCIATION, INC., et al., petitioners/plaintiffs,

v.COMMON COUNCIL OF the CITY OF WHITE PLAINS, et al., respondents/defendants. (Matter No. 1)

Claudia G. Jaffe, et al., appellants, et al., plaintiff,

v.French–American School of New York, Inc., etc., respondent.(Matter No. 2)

2018–11142

Index Nos. 3084/17, 51577/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—June 2, 2022

October 26, 2022

Claudia G. Jaffe, White Plains, NY, appellant pro se and for appellant Aaron D. Jaffe, Pollock & Maguire, LLP, White Plains, NY (Theresa N. Maguire pro se of counsel), for appellant Kevin G. Maguire, Louis M. Petralia, White Plains, NY, appellant pro se, and Ralph Reda, White Plains, NY, for appellant Florence Reda (one brief filed).

Zarin & Steinmetz, White Plains, NY (Michael D. Zarin, Daniel M. Richmond, and Kate Roberts of counsel), for respondent.

COLLEEN D. DUFFY, J.P. BETSY BARROS ROBERT J. MILLER LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action for a judgment declaring that a restrictive covenant in a certain deed bars the defendant from operating an educational institution on certain land, and a permanent injunction enjoining the defendant and its successors and assigns from using certain premises in any way that would violate the subject restrictive covenant, and a related hybrid proceeding and action, Claudia G. Jaffe, Aaron D. Jaffe, Theresa N. Maguire, Kevin G. Maguire, Louis M. Petralia, and Florence Reda, the plaintiffs in Matter No. 2, appeal from an order of the Supreme Court, Westchester County (Joan B. Lefkowitz, J.), dated August 24, 2018. The order, insofar as appealed from, granted that branch of the motion of the defendant in Matter No. 2 which was pursuant to CPLR 3211(a) to dismiss the complaint in Matter No. 2.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was to dismiss the cause of action for declaratory relief, and adding thereto a provision deeming that branch of the motion to be for a judgment declaring that the subject restrictive covenant does not bar the defendant from operating an educational institution on the subject land, and thereupon granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant, and the matter is remitted to the Supreme Court, Westchester County, for the entry of a judgment in Matter No. 2 in accordance herewith.

In 2011, the defendant, French–American School of New York, Inc. (hereinafter FASNY), an educational institution operating as a not-for-profit corporation, purchased an approximately 130–acre property located in the City of White Plains from nonparty Ridgeway Country Club. Thereafter, that same year, FASNY submitted to the City a special permit and site plan application, proposing to build and operate a private school and campus on a portion of the subject property. The application underwent approximately seven years of review by the City, including a review pursuant to the State Environmental Quality Review Act, with the City's Common Council acting as lead agency. FASNY's application was eventually approved by the City, with various modifications, in November 2017.

In February 2018, the plaintiffs, consisting of several owners of private single-family homes located near the subject property, commenced an action seeking a judgment declaring that a restrictive covenant running with the land contained in a deed (hereinafter the 1925 deed) within the chain of title for the subject property bars FASNY from operating an educational institution on the subject property. The restrictive covenant at issue states, in pertinent part, that:

"neither the grantee nor its successors or assigns, shall at any time hereafter erect, make, carry on, suffer or permit any manner upon any portion of the premises hereby conveyed, any brewery, distillery, dram shop, saloon, bar room or other place for the manufacture or sale of intoxicating or spirituous liquors (except to the extent that the sale of liquors may at any time be lawful in connection with the operation of a golf club), or any hospital or sanatorium, or any institution, other than a club, or any asylum, or any charitable or public home or refuge or any noxious, offensive, undesirable or dangerous trade, manufactory or occupation or any nuisance whatsoever" (emphasis added).

The plaintiffs also asserted a cause of action for related permanent injunctive relief.

FASNY moved, inter alia, pursuant to CPLR 3211(a)(1) to dismiss the complaint, contending that the phrase "or any institution," relied upon by the plaintiffs, does not bar it from operating the educational institution approved by the City. The plaintiffs opposed the motion. In an order dated August 24, 2018, the Supreme Court, inter alia, granted that branch of FASNY's motion. This appeal ensued.

A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground that a defense is founded on documentary evidence may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ; Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d 714, 169 N.Y.S.3d 90 ; Bonavita v. Government Empls. Ins. Co., 185 A.D.3d 892, 127 N.Y.S.3d 577 ). "[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case" ( Bath & Twenty, LLC v. Federal Sav. Bank, 198 A.D.3d 855, 156 N.Y.S.3d 316 [internal quotation marks omitted; emphasis added]; see JPMorgan Chase Bank, N.A. v. Klein, 178 A.D.3d 788, 790, 113 N.Y.S.3d 741 ).

"Restrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy" ( Chambers v. Old Stone Hill Rd. Assoc., 1 N.Y.3d 424, 431, 774 N.Y.S.2d 866, 806 N.E.2d 979 ). Nonetheless, "[i]t is well settled that the law favors the free and unobstructed use of real property" ( Kaufman v. Fass, 302 A.D.2d 497, 498, 756 N.Y.S.2d 247 ). "Accordingly, a restrictive covenant must...