The following papers number 1 to 6 read herein: Papers Number Notice of Motion and Affidavits (Affirmations) Annexed 1-2, 3-4 Opposing Affidavits (Affirmations) 5, 6 DECISION/ORDER Defendant, 1919 Bedford Realty LLC, moves for summary judgment dismissing plaintiffs’, Fenimore Civic Block Association, Inc. a/k/a Fenimore Street Block Association, Calvert Hadley, Sydney Moshette Jr., Cheryl Francis and Benjamin Toro’s (collectively “plaintiffs”), complaint pursuant to CPLR 3212, and seeks an order granting defendant summary judgment in favor of the counterclaims asserted in its answer dated June 16, 2017. Plaintiffs oppose and cross-move for a declaratory judgment1 that the restrictive covenant within defendant’s chain of title, arising from a May 25, 1908 deed, is valid and enforceable and prohibit the erection of any building other than a single-family home. Background In this action, plaintiffs seek to enforce a purported restrictive covenant to prohibit defendant from constructing three, four-story apartment buildings on the property located at 1919 Bedford Avenue between Bedford and Rogers Avenues, a/k/a 174/176 Fenimore Street, Brooklyn, New York (“subject property”). The subject property is a corner lot, and sits on the east side of Bedford Avenue and the south side of Fenimore Street, and is currently occupied by a three-story building and a single-story garage. Plaintiff Fenimore Street Block Association and the named individuals herein are homeowners on both the north and south sides of Fenimore Street. On February 17, 2017, defendant purchased the subject property from Downstate Enterprises, Inc. for $2,635,000, with the intent of demolishing the existing structures and developing three, four-story residential apartment buildings. Defendant asserts that a title search completed prior to acquisition of the subject property did not reveal any encumbrances, defects, or restrictions to the use of the subject property. The title search cited by defendant, also indicated that both Bedford Avenue and the south side of Fenimore Street, are zoned “R6″ which allows for multifamily residential buildings. As part of its development plan, defendant’s application to the NYC Department of Finance to convert the subject property (Block 5043/Lot 9) into three lots was approved. As a result, the subject property is now designated as Block 5043, lots 8, 9 and 10. Defendant’s construction plans were also approved by the Department of Buildings (“DOB”). By letter dated February 17, 2017, defendant received a demand letter from Marc S. Bresky (“Bresky”), plaintiffs’ former counsel, to cease and desist with the development plan, based on a restrictive covenant contained in an original 1908 deed of the subject property which prohibited the use of the subject property for anything other than “single family residential homes only”. Thereafter, defendant conducted an in-depth public record search and determined that the 1908 original deed contained the following provision: AND the party of the second part [the grantee], for himself, his heirs and assigns, covenants and agrees with the parties of the first part [the grantor], their successors and assigns, that neither he nor his heirs or assigns will erect, or cause or suffer or permit to be erected on any part of the premises hereby conveyed any building other than a private dwelling house for one family only, or of less value than Five Thousand ($5,000.00) Dollars. That any house erected on the land hereby conveyed shall be at least two stories in height above the ground, and shall stand back at least fourteen feet from the line of Fenimore Street, fronting the same, excepting that bay windows may stand out three feet and porches may stand out eight feet in front of the face of such building; and any front fence erected shall stand back twelve feet from the curb line of Fenimore Street, except also that one story private garage, in keeping with the character of the house, for automobiles may be erected thereon, provided that such garage stands back at least seventy-five feet from the line of Fenimore St., and fifty feet from the line of Bedford Ave. Notwithstanding the above provision restricting the use of the subject property for “one family only”, defendant’s search revealed that the deeds conveying ownership of the subject property, for at least 50 years, did not contain said deed restriction. On or about March 27, 2017, plaintiffs commenced this action to enforce the restrictive covenant within the original 1908 deed and prohibit defendant from developing the subject property. Defendant filed an answer with counterclaims and affirmative defenses. Defendant now moves for summary judgment dismissing plaintiffs’ complaint for lack of standing, and also moves for summary judgment in favor of its counterclaims to terminate the restrictions. Plaintiffs oppose defendant’s requested relief and cross-move for declaratory judgment with a declaration of rights to enforce the restrictive covenant preventing the development of the subject property. Discussion Summary judgment is a drastic remedy that deprives a litigant of his day in court and thus, should only be employed when there is no doubt as to the absence of triable issues of material fact (see Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005]); see also Andre v. Pomeroy, 35 NY2d 361, 364 [1974]). “[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Manicone v. City of New York, 75 AD3d 535, 537 [2d Dept 2010], quoting Alvarez v. Prospect Hosp, 68 NY2d 320 [1986]; see also Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Winegrad v. New York Univ Med Ctr, 64 NY2d 851, 853 [1985]; Silllman v. Twentieth Century-Fox Film Corp, 3 NY2d 395, 404 [1957]). The motion should be granted only when it is clear that no material and triable issue of fact is presented (see Di Mena & Sons v. City of New York, 301 NY 118 [1950]). If the existence of an issue of fact is even arguable, summary judgment must be denied (see Phillips v. Kantor & Co, 31 NY2d 307 [1972]; Museums at Stony Brook v. Vil of Patchogue Fire Dept, 146 AD2d 572 [2d Dept 1989]). In the case at bar, defendant contends that it is entitled to summary judgment to dismiss the claims in plaintiffs’ complaint which arise from a 1908 deed containing a restrictive covenant, and which plaintiff avers prohibits the erection of any building other than a single-family dwelling. Defendant argues that the subject property is not part of a common scheme or development, and, therefore, plaintiffs lack standing to enforce the restrictive covenant. In opposition and support of their cross motion, plaintiffs rely on Lefferts Manor Ass’n v. Fass, 28 Misc. 2d 1005, which involved the same restrictive covenant at issue, to show that the deed restriction applies to the subject property. In determining the requested relief of the respective parties, the Court must consider whether the subject property is part of a general scheme or plan of development and that defendant had notice, at the time that the subject property was purchased, of the common scheme or plan (see Steinmann v. Silverman, 14 NY2d 243, 246 [1964]) Defendant submits the affidavit of Cheskie Weisz (“Weisz”), a managing member of defendant 1919 Bedford Realty LLC (“Bedford Realty”) in support of the requested relief. Firstly, Weisz’s affidavit states that he first learned of the restriction at issue, shortly after Bedford Realty closed on the mortgage for the subject property, when he received a demand letter from Bresky, dated February 17, 2017, asserting that there was a restrictive covenant on the subject property that prevented defendant from proceeding with its development plan. The letter stated in pertinent part, “PLEASE BE ADVISED that while the south side of Fenimore Street between Bedford and Rogers [sic] is located in an R6 zone, which allows a wide range of residential development, and it is not currently part of the Prospect Lefferts Garden Historic District or included within the current boundaries of Lefferts Manor…” Weisz states that following the receipt of Bresky’s demand letter, Bedford Realty searched the public records of the subject property which revealed that the neighborhood known as Lefferts Manor Historic District only includes the north side of Fenimore Street and does not include the south side of Fenimore Street, where the property is located. The findings contained in Bedford Realty’s search rely on the official city map of Lefferts Manor. Weisz’s affidavit also points to the nearby Prospect Lefferts Gardens Historic District as evidence that the subject property is not part of a common plan or scheme, since it is primarily made up of two and three-story stone row houses, while the subject property, and the properties on the south side of Fenimore Street are wood frame buildings (see New York City Landmarks Commission map). Weisz’s affidavit also cites NYC Department of Finance tax records to show that the south side of Fenimore Street, which includes the subject property, has a zoning classification of “R6″ by the City of New York. This classification permits the construction of buildings other than single family residences. On the other hand, a review of the facts in Lefferts Manor, relied on by plaintiff, indicates that in 1893 John Lefferts died, and by his will devised certain real property to his children. In 1899, his executors, pursuant to a map entitled “Map of Property Belonging to the Estate of John Lefferts,” subdivided the area to building lots creating a “deed restricted” community prohibiting any building or erection other than a private dwelling house for one family only.” Citing the “Map of Property Belonging to the Estate of John Lefferts”, filed in the Office of the County Clerk on April 28, 1899, the Court in Lefferts Manor held that the restrictive covenant was “imposed in furtherance of a general plan for the development of the area,” for one-family dwellings and granted a permanent injunction against defendants seeking to build a two-family dwelling. Viewing the record as a whole, the Court finds that defendant has failed to establish prima facie entitlement to summary judgment as a matter of law, since the holding set forth in Lefferts Manor establishes as a matter of law that the subject property was embraced by a general plan of development through “clear and definite proof” (see Steinmann v. Silverman, 14 NY2d 243, 246 [1964]; Huggins v. Castle Estates, Inc., 36 NY2d 427, 432-33, [1975]) and within the boundaries of Lefferts Manor included lots bounded by the west by Flatbush Avenue, on the north by Lincoln Road, on the east by Rogers Avenue and on the south by Fenimore Street. It is well settled law in the Second Department that the “the opposing papers may, in [a] court’s discretion, be perused to determine whether the [motion] record as a whole established the movant’s prima facie entitlement to judgment” (Oleg Barshays D.C., P.C. v. State Farm Insurance Co., 831 NYS2d 821, 822-823 [2d Dept 2006]). Notwithstanding, the Court’s holding in Lefferts Manor, the record shows that a review of defendant’s submissions, namely the public record search referred to in Weisz’s affidavit, demonstrate that issues of fact exist as to whether the restrictive covenant applies to the subject property. While defendant submits Bresky’s February 17, 2017 demand letter as an admission by plaintiff that the subject property is not part of the Lefferts Manor historic district, this letter is not dispositive proof on the issue. Similarly, the Court finds that the subject property’s “R6″ zoning designation, which allows for the construction of a number of different types of residential properties, not just single-family homes, is of no moment since it is well settled that zoning ordinances do not abrogate limitations of use imposed by restrictive covenants (see Lefferts Manor Ass’n v. Fass, 28 Misc. 2d 1005, 1007). Historic district designations, such as the 1979 Prospect Lefferts Gardens Historic District designation are also not dispositive as to applicability of the restrictive covenant to the subject property. The record also establishes that an issue of fact exists regarding notice. The case law is well settled that a deed restriction or covenant is only enforceable where the defendant property owner had notice of the scheme or plan (see Malley v. Hanna, 101 AD2d 1019, 1020 [4th Dept 1984]; see Graham v. Beermunder, 93 AD2d 254, 258 [2d Dept 1983]). In the case at bar, the record shows that the subject property had been used exclusively as a medical office from 1995 through the date that the property was purchased by defendant, with a land use designation for “Commercial & Office Buildings” (see NYSCEF Doc. No. 29). A review of the 2017 deed from Downstate Enterprises, Inc. to defendant Bedford Realty, as well as, prior deeds of the subject property for at least a 50-year period, do not contain the restrictive covenant language of the 1908 deed. On the other hand, while acknowledging that many of the houses in Lefferts Manor served as residences for doctors having medical practices, the affidavits of plaintiffs Cheryl Francis and Tracy Boni, cite historical deeds of these properties dating back to the early twentieth century to show that the deed transfers were “subject to…restrictions and covenants affecting the premises”. The inclusion of restrictive language in these deeds or lack thereof cited by the respective parties raise an issue of fact as to actual or constructive notice regarding restricted use of the subject property. Based on the foregoing, the Court notes that it is premature to render a judgment with a declaration of rights regarding the restrictive covenant and whether construction of the subject property shall be prohibited, since there are issues of fact as to whether the restrictive covenant applies to the subject property (see CPLR 3001). As regards to that branch of defendant’s motion seeking summary judgment in favor of its counterclaims pursuant to RPAPL 1951, the Court denies the requested relief. In the case at bar, defendant asserts that the character surrounding the subject property has changed, thus, defeating the purpose of the restriction. However, other than assertions contained in its moving papers, defendant submits no proof in admissible form to support the requested relief. In a motion for summary judgment to sustain a cause of action declaring a restrictive covenant unenforceable, the Appellate Division, Second Department, in Neri’s Land Improvement, LLC v. J.J. Cassone Bakery, Inc., 265 AD3d 1312, emphasized that a party must go beyond a mere conclusory allegation asserting that the covenant is of no actual or substantial benefit. Rather, factual allegations are required to support the assertion that “the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment” (Id.). Defendant’s remaining contentions regarding its counterclaims are without merit, and therefore, are not considered by the Court. Based on the foregoing, defendant’s motion and plaintiffs’ cross motion are denied. This constitutes the decision and order of the Court. Dated: March 31, 2021
