GINSBERG v. YESHIVA OF FAR ROCKAWAY
74 Misc.2d 391 (1973)
Stanley A. Ginsberg et al., Plaintiffs, v. Yeshiva of Far Rockaway, Defendant.
Supreme Court, Trial Term, Queens County.
May 25, 1973
Tenzer, Greenblatt, Falon & Caplan for plaintiffs. Fishkin & Zaslowsky for defendant.
This action to enforce a restrictive covenant by a permanent injunction was tried by the court without a jury. Though conceding the existence of the covenant which applies to six lots, defendant contends, not only that the covenant has not been violated, but also that it is unenforceable because of (1) substantial changes in the nature of the lots and adjacent neighborhood, (2) plaintiffs' violation of the covenant, and (3) the failure of plaintiffs and their predecessors to enforce the covenant despite prior violations. Defendant also counterclaims to declare the covenant unenforceable pursuant to section 1951 of the Real Property Actions and Proceedings Law.
Plaintiffs, husband and wife, own and reside in a single-family house on the southeast corner lot which also abuts on the busy thoroughfare. The husband is a doctor who, as did his father before him, maintains an office in the house where he treats patients approximately 12 hours a week, in addition to his practice at hospitals. The entrance to the office is from the side of the house towards the busy thoroughfare. Behind this and the other lots on the south side of the dead-end street is a synagogue which has purchased the burdened parcel immediately to the west of the plaintiffs. This lot has, for many years, been used by the synagogue as a parking lot without objection from plaintiffs or their predecessors, except for minor complaints relating to fencing and lights which were modified by the synagogue pursuant to plaintiffs' request. The parking lot is entered from the dead-end street and is used with great frequency due to the almost continuous activities at the synagogue, as well as catered affairs there about once a week. Plaintiffs' view of the parking lot is cut off by a high fence and bushes. The court believes the statement of plaintiff husband that the use of this lot for parking is not offensive to him.
The southwest, northeast and northwest corner lots covered by the restrictive covenant have single-family dwellings thereon, but the middle lot on the north side of the dead-end street is vacant.
In 1971 defendant, a religious corporation, purchased the northwest corner lot and the vacant lot to the east. The single-family house on the northwest corner lot was converted on the interior for the purpose of being used as a school (Yeshiva) which now has 47 students in grades 9 through 12. The plaintiff doctor has been disturbed by the students roller-skating in the street in the late afternoon or early evening and by the frequent
In the court's opinion, defendant's operation of the school on the property involved violates the restrictive covenant appertaining to the property. This is so despite the necessarily strict construction that must be given to the restrictive covenant. (Single v. Whitmore,
In this regard, defendant has sustained the burden of showing a substantial change in the area covered by the restrictive covenant, mainly because of the use of one of the lots by the synagogue as a parking lot. Despite this, the covenant is enforceable if it is of actual and substantial value to the properties. (Koch v. Nestle,
Plaintiffs are not, despite defendant's contentions, prevented from enforcing the covenant by reason of their failure to attempt to prevent other alleged violations of covenant, primarily the use of the adjacent lot as a parking lot. Plaintiffs' failure to
The court also rejects defendant's contention that plaintiffs cannot enforce the covenant because the medical office in their house violates the covenant. Admittedly, equitable relief would not be available to the plaintiffs if they were violating the covenant, for then they would not be coming into equity with clean hands. (Pappas v. Excelsior Brewing Co., 170 App. Div. 692.) Plaintiffs, however, are not violating the covenant as defendant contends. Only incidental to the use of the house as a private residence is its use as a medical office and, moreover, this incidental use is inconspicuous and does not disturb the residential character of the neighborhood. (Blair v. Ladue,
Accordingly, pursuant to CPLR 4213, the court finds that defendant should be enjoined from operating a school on the property involved and that defendant's counterclaim should be dismissed.
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