Kumar v. Franco

211 A.D.3d 1437

182 N.Y.S.3d 304

Manoj K. KUMAR et al., Appellants,

v.Stephen FRANCO et al., Respondents.

534087

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

Calendar Date: November 22, 2022

Decided and Entered: December 29, 2022

Bousquet Holstein PLLC, Syracuse (Ryan S. Suser of counsel), for appellants.

Weaver Mancuso Brightman PLLC, Rochester (John A. Mancuso of counsel), for respondents.

Before: Lynch, J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from a judgment of the Supreme Court (Mark G. Masler, J.), entered September 24, 2021 in Cortland County, which, among other things, granted defendants’ cross motion to dismiss the complaint.

Plaintiffs reside on Davinci Drive in the Town of Cortlandville, Cortland County, which is part of the Renaissance I Cortlandville Residential Subdivision (hereinafter the subdivision). Defendants own adjacent property consisting of two parcels of land – one is a 0.76 acre parcel, off Davinci Drive, and the second is a 25.5 acre parcel, adjoining both plaintiffs’ property and defendants’ Davinci Drive parcel. Both plaintiffs’ property and defendants’ Davinci Drive parcel are located in the subdivision, subject to Covenants and Restrictions of Renaissance I Cortlandville Residential Subdivision, as amended (hereinafter the subdivision restrictions).

After defendants installed a driveway going through their Davinci Drive parcel to their residence on the second parcel, plaintiffs commenced this action seeking a declaratory judgment that defendants violated the subdivision restrictions, a preliminary injunction with temporary restraining order and a permanent injunction that would prohibit defendants from constructing the driveway as well as directing them to remove the already-built driveway. Plaintiffs also separately moved for a preliminary injunction. Defendants responded to the motion, arguing that plaintiffs did not make the required evidentiary showing to justify a temporary restraining order and, moreover, defendants asserted that the subdivision restrictions, unambiguous on their face, did not apply to their driveway.

Thereafter, defendants, pre-answer, cross-moved to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7). Plaintiffs then withdrew their motion seeking a preliminary injunction, stating their intention to expedite a decision on the merits. Ultimately, Supreme Court granted defendants’ cross motion to dismiss the complaint, declared – relying on CPLR 3211(a)(7) – that the driveway on the Davinci Drive parcel does not violate the subdivision restrictions and denied injunctive relief to plaintiffs. Plaintiffs appeal.

Plaintiffs contend that Supreme Court erred by dismissing their complaint. Specifically, they challenge the court's determination that defendants did not violate the subdivision restrictions by installing a driveway through their Davinci Drive parcel and by not obtaining approval of the Architectural Control Committee (hereinafter the Committee) before constructing the driveway. Initially, "on a motion to dismiss, a court should construe the pleadings liberally, accept the allegations as true and afford [the nonmoving party] the benefit of every possible inference to determine whether the facts alleged fit within a cognizable legal theory" ( Clearmont Prop., LLC v. Eisner, 58 A.D.3d 1052, 1054, 872 N.Y.S.2d 725 [3d Dept. 2009] [internal quotation marks and citations omitted]). "When a party moves to dismiss the complaint in a declaratory judgment action, ... [a] mere dismissal is not appropriate" ( Dodson v. Town Bd. of the Town of Rotterdam, 182 A.D.3d 109, 112, 119 N.Y.S.3d 590 [3d Dept. 2020] [internal quotation marks and citations omitted]). "Where there are no questions of fact and the only issues presented are questions of law or statutory interpretation, the motion to dismiss should be treated as one seeking a declaration in the defendant's favor and treated accordingly" ( id. [internal quotation marks, brackets and citations omitted]; see Sullivan v. New York State Joint Commn. on Pub. Ethics, 207 A.D.3d 117, 124, 170 N.Y.S.3d 234 [3d Dept. 2022] ).

As relevant here, "[t]he law favors free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them" ( Ernie Otto Corp. v. Inland Southeast Thompson Monticello, LLC, 91 A.D.3d 1155, 1156, 936 N.Y.S.2d 756 [3d Dept. 2012] [internal quotation marks, brackets and citations omitted], lv denied 19 N.Y.3d 802, 2012 WL 1538328 [2012] ; see Turner v. Caesar, 291 A.D.2d 650, 651, 737 N.Y.S.2d 426 [3d Dept. 2002] ). "Where the language used in a restrictive covenant is equally susceptible of two interpretations, the less restrictive interpretation must be adopted" ( Ernie Otto Corp. v. Inland Southeast Thompson Monticello, LLC, 91 A.D.3d at 1156, 936 N.Y.S.2d 756 [internal quotation marks, brackets and citations omitted]; see Freedman v. Kittle, 262 A.D.2d 909, 911, 693 N.Y.S.2d 651 [3d Dept. 1999] ). The court is to enforce restrictions "only where the party seeking enforcement establishes their application by clear and convincing evidence" ( Dever v. DeVito, 84 A.D.3d 1539, 1542, 922 N.Y.S.2d 646 [3d Dept. 2011], lv dismissed 18 N.Y.3d 864, 938 N.Y.S.2d 846, 962 N.E.2d 269 [2012], lv denied 21 N.Y.3d 861, 971 N.Y.S.2d 751, 994 N.E.2d 842 [2013] ; see Witter v. Taggart, 78 N.Y.2d 234, 237–238, 573 N.Y.S.2d 146, 577 N.E.2d 338 [1991] ).

As a preliminary matter, the subdivision restrictions do not address requirements for the installation of private driveways anywhere in the text. The relevant part of the subdivision restrictions provides that "[n]o lot in said subdivision shall be used for other than residential purposes. No building shall be erected, altered, placed or permitted to remain on any lot other than one single-family dwelling for occupancy by not more than one family with a size minimum (exclusive of garage) of 2500 square feet above basement level." Regarding the requirement to acquire the Committee's approval, the subdivision restrictions specifically provide that "[n]o building shall be erected, altered, placed or permitted to remain on any lot until the construction plans, specification and site plan showing the location of the structure upon the lot have been approved by [the Committee] as to quality of workmanship, materials, harmony of external design with existing structures, and as to location with respect to topography and finish grade elevation." Further, the subdivision restrictions provide that "[n]o fence, hedge, plantings or trees shall be erected, placed or altered along any lot line; especially in a manner that will now or in the future obstruct views of adjoining property owners, unless said fence, hedge, plantings or trees shall be approved by [the Committee]." Moreover, "[c]onstruction of any accessory structure shall be subject to requirements of the Town of Cortlandville, must be approved by [the Committee] and must conform to the requirements of location, workmanship and external...