GINSBERG v. YESHIVA OF FAR ROCKAWAY
45 A.D.2d 334 (1974)
Stanley A. Ginsberg et al., Respondents,
v.
Yeshiva of Far Rockaway, Appellant
Appellate Division of the Supreme Court of the State of New York, Second Department.
July 8, 1974.
Gladstone, Lowell, Karassik & Mondschein (Stanley H. Lowell and Frank A. Romano of counsel), for appellant.
Tenzer, Greenblatt, Fallon & Kaplan (Edward L. Sadowsky of counsel), for respondents.
GULOTTA, P. J., and COHALAN, J., concur with LATHAM, J.; BENJAMIN, J., dissents and votes to reverse and to grant judgment in favor of defendant, with an opinion, in which MUNDER, J., concurs.
In this action to enjoin the operation of a religious school on property subject to a private residential use covenant, the issue is whether there is a violation of the constitutional guarantees of religious freedom by the enforcement of the covenant against the defendant, which purchased with knowledge of the covenant and of the plaintiffs' intention to enforce it.
In 1908, a covenant was attached to six lots, three on the north side and three on the south side of a short dead-end street (now named Virginia Street) off Empire Avenue, which is a well-traveled two-lane street in Far Rockaway, Queens. The defendant's property is situated at the dead end, where all traffic, including emergency vehicles, turns around. The covenant provides in pertinent part that none of the six lots "shall be used except for one private residence" and that no "apartment buildings, boarding houses, stores, business houses, barns or stables" shall be "erected or maintained". Of the six restricted lots, the four corner ones are improved with single-family residences while the two middle lots are vacant. The surrounding area contains one-family homes in all directions, with the exception of a few two-family homes and a four-story apartment house, all of which have been there for many years.
Plaintiffs Dr. Stanley A. and Mrs. Susan K. Ginsberg own and reside in a single-family home on the restricted southeast corner lot. Dr. Ginsberg uses part of the house as a medical office 12 hours a week. His father, who was also a physician, lived and practiced in the house from 1932 on. Dr. Ginsberg started his practice in 1964, paying rent for the office first to his father and then, after his father's death, to his mother. In 1969, his mother transferred the house to the plaintiffs.
In or about 1963, an orthodox synagogue purchased the adjacent unrestricted property south of the plaintiffs', demolished two private dwellings, and erected its temple. At the same time, the synagogue bought the adjacent vacant restricted lot west of the plaintiffs', paved and lighted it, and used it as a parking lot without objection from the plaintiffs or their predecessors apart from minor complaints as to fencing and lighting which were modified pursuant to the plaintiffs' request. Synagogue traffic enters the parking lot through Virginia Street and exits
directly onto Empire Avenue by the driveway on the unrestricted portion of the synagogue's premises, thus not clogging Virginia Street or substantially disturbing the one-family residential atmosphere. The Trial Justice believed Dr. Ginsberg's statement that the use of the lot for parking was not offensive to him. In August, 1971, concededly with knowledge of the covenant and of the plaintiffs' intention to enforce it, the defendant, Yeshiva of Far Rockaway, apparently not affiliated with the synagogue, purchased the restricted northwest corner lot at the dead end of the block diagonally across from the plaintiffs. On the eve of purchase, the plaintiffs' attorneys advised the defendant of the plaintiffs' intention to enforce the covenant. In September, 1971, the defendant began to operate an all-day religious school in the former private dwelling for grades 9 through 12. The original nine rooms, unchanged, now serve as four classrooms, an office, a prayer room where the boys pray in the morning and the evening, and a kitchen, with two of the rooms used as a dormitory for three out-of-town boys. The hours are 9 A.M. to 6 P.M. Monday through Friday, with additional hours on Sunday mornings and meetings on Thursday evenings. There are 47 students ages 14 to 18 and some eight teachers. Dr. Ginsberg has been disturbed by the students playing roller skate hockey on the parking lot and in the street in the late afternoon and early evening and by the frequent failure of the school to remove some 8 to 10 garbage cans from the street for several days after collection.
The plaintiffs commenced this action to enforce the covenant on or about February 1, 1972. In or about March, 1972, the defendant purchased the adjoining vacant restricted lot. It plans to further expand the school. Though the record is barren with respect to a connection between the synagogue and the school, it is apparent that a synagogue and a yeshiva are both identified with the Jewish faith.
* Cf. West Hill Baptist Church v. Abbate (53 Ohio Op. 2d 107, 112) where two churches of other religious denominations had been erected in the large restricted area and the court said: "The appearance of discrimination in favor of certain religious denominations * * * is given by the existence of these churches * * * the presence of these two churches in this area indicates that a choice was made by the beneficiaries of the covenant between denominations."