The following papers having been read on this motion:Notice of Motion (Village) 1Order To Show Cause (Plaintiff) 2Opposition (Housing Trust) 3Opposition (Diamond and Weisenberg) 4Opposition (Village) 5Reply (Plaintiff) 6 Defendant Village has moved for an order, pursuant to CPLR §3211(a)(7), to dismiss Plaintiff’s complaint against it, only, on the ground that it fails to state a cause of action. Neither the Plaintiff nor any of the co-Defendants have opposed the motion. However, Plaintiff has filed an order to show cause for an order granting a preliminary injunction, pursuant to CPLR §6311 against Defendants from performing any construction, elevation, or renovation work to the subject property. That motion has been opposed separately by each Defendant. After review and consideration, the motion to dismiss against Defendant Village is hereby granted in its entirety, without opposition, and the order to show cause for a preliminary injunction is hereby denied in its entirety.:The within action arises from a restrictive covenant on the property known as 39 Redfield Road, Island Park, New York. In 2005, Plaintiff’s parents owned the subject property and sold same to a Mr. and Mrs. Leston. The beneficiaries to the restrictive covenant were the occupants of 35 Redfield Road, Island Park, New York, which currently is Plaintiff. Following the sale of the property to Mr. & Mrs. Leston, they proceeded to construct a second floor on the house with a full dormer, in violation of the restrictive covenant existing on the property not to have the housing structure exceed a certain height. Following three years of litigation and a trial, a decision was issued on April 4, 2012, by Hon. James. P. McCormack, J.S.C., finding that the second floor did in fact violate the restrictive covenant and needed to be taken down.Unfortunately, following Superstorm Sandy in October 2012, the subject property was destroyed. Faced with the difficulties of a complete rebuild, and the restrictions placed on the subject property, Mr. and Mrs. Leston elected to sell the property back to New York State through an emergency program instituted by the Governor’s Office and implemented by Defendant Housing Trust, which purchased properties affected by this natural disaster. The deed did not contain the information about the restrictive covenant. The property was then sold at auction to Defendant Diamond, also without the restrictive covenant as part of the deed. Nevertheless, Plaintiff alleges that Defendants Diamond and Weisenberg were both made aware of the restrictive covenant with each transfer of the property.Pursuant to CPLR §3211(a)(7), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action. In assessing the defendant’s motions to dismiss under CPLR §3211(a)(7), a court must accept the plaintiff’s allegations as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether plaintiff has a cause of action. Connolly v. Long Island Power Authority, 30 NY3d 719, 70 NYS3d 909 (2018). At the same time, the defendant bears the burden of establishing that the complaint fails to state a viable cause of action. Id at 728, 914. Thus, a motion to dismiss made pursuant to CPLR §3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law. Clarke v. Laidlaw Transit, Inc., 125 AD3d 920, 5 NYS3d 138 (2nd Dept., 2015).The use that may be made of land under a zoning ordinance and the use of the same land under an easement or restrictive covenant are, as a general rule, separate and distinct matters, the ordinance being a legislative enactment and the easement or covenant a matter of private agreement. Ewing v. Watson, 15 AD3d 340, 790 NYs2d 40 (2nd Dept., 2005). A particular use of land may be enjoined as in violation of a restrictive covenant, although the use is permissible under the zoning ordinance, and the issuance of a permit for a use allowed by a zoning ordinancy may not be denied because the proposed use would be in violation of a private restrictive covenant. Matter of Friends of Shawangunks v. Knowlton, 64 NY2d 387, 487 NYS2d 543 (1985).In the instant case, Plaintiff has alleged three causes of action, all seeking equitable relief; first, they seek a enforcement of the judgment from April 4, 2012, concerning the restrictive covenant on the subject parcel known as 39 Redfield Road, Island Park, New York; second, a declaratory judgment enforcing the restrictive covenant of Plaintiff; and third, for a permanent injunction preventing elevation, construction, or renovation in violation of the covenant. As asserted, none of these causes of action are aimed at Defendant Village; rather, they are directed toward the various co-Defendants. Even assuming, arguendo, any of the causes of action were specifically alleged against Defendant Village, such cause of action must fail, as Defendant Village does not have any interest in the property, whatsoever and only functioned to issues permits and applications relevant to the property which were not in violation of its own local municipal ordinance. Therefore, the request to dismiss the complaint in its entirety as and against Defendant Village is hereby granted.Turning next to Plaintiff’s request for a preliminary injunction, on a motion seeking a preliminary injunction, the burden of proof is on the movant to demonstrate a likelihood of success on the merits, the prospect of irreparable injury if the relief is withheld, and a balancing of the equities in the movant’s favor. Gagnon Bus Co., Inc. v. Vallo Transportation, Ltd., 13 AD3d 334, 786 NYS2d 107 (2nd Dept., 2004). Moreover, preliminary injunctive relief is a drastic remedy which will not be granted unless a clear right thereto is established under the law and the undisputed facts upon the moving papers, and the burden of showing an undisputed right rests upon the movant. Blake Agency v. Leon, 283 AD2d 423, 723 NYS2d 871 (Mem) (2nd Dept., 2001).Here, Plaintiff relies on the decision and order of the Justice McCormack from 2012, before the events of Superstorm Sandy, to enforce same on the second subsequent owner of the property, Defendant Diamond, the first subsequent owner being the State of New York through Defendant Housing Fund. However, the circumstances of that catastrophic event cannot be overlooked, nor can the requirements of both federal and state aid provided to homeowners, property owners, and developers to prevent future dramatic losses to lands similar to the subject parcel as these damages properties were rebuilt. For example, the Federal Emergency Management Agency (hereinafter “FEMA”) enacted provisions that would require elevating housing to levels higher than before the storm so as to ensure public safety. Following these new requirements of FEMA would qualify Defendant Diamond for the appropriate funding; on the other hand, doing so would likely violate the restrictive covenant on the parcel.A restrictive covenant will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy. Perrin v. Bayville Village Board, 70 AD3d 835, 894 NYS2d 131 (2nd Dept., 2010) (emphasis added). Here, not only would Defendant Diamond be essentially restricted from ever developing this land if the restrictive covenant were still enforced, but Defendant Housing Fund would likely be required to retake position indefinitely, as it could not resell the land without the ability of a future buyer to build a home within the new guidelines due to this restrictive covenant. It is the opinion of this Court that the restrictive covenant under these circumstances would be unreasonable and violate public policy, a result that cannot stand. As such Plaintiff has not demonstrated a likelihood of success on the merits on its complaint whatsoever.Moreover, Plaintiff has not satisfied for the Court that it would suffer irreparable injury of Defendants Diamond and Weisenberg are permitted to go forward with their construction pending a decision on the merits in this action. Much like what occurred with Mr. and Mrs. Leston when they owned the subject property and erected an extension to the home which was later deemed to be in violation of the restrictive covenant, any costs to be incurred should Defendants Diamond and Weisenberg be unsuccessful in their defense to this action would be by themselves, not only for the cost to comply with the restrictive covenant, but the loss for performing construction before the resolution in this matter. On the contrary, Plaintiff has not articulated any financial loss should a preliminary injunction not be granted herein. Therefore, for all of the foregoing reasons, in exercising its discretion, the Court finds that the granting of a preliminary injunction would be improper, and the motion is hereby denied at this time. See Automated Waste Disposal, Inc. v. Mid-Hudson Waste, Inc., 50 AD3d 1072, 857 NYS2d 648 (2nd Dept., 2008).Plaintiff shall file and serve a copy of the within order with notice of entry upon all parties served with the instant motion practice within thirty (30) days from the date of this order. The temporary restraining order put in place on January 17, 2019, upon the signing of the order accompanying the motion is hereby lifted forthwith.Finally, the caption is hereby amended to read as follows: “PATRICIA QUINTO, Plaintiff, against STEVEN DIAMOND, WEISENBERG HOLDINGS, LLC, and HOUSING TRUST FUND CORPORATION.”This hereby constitutes the decision and order of this Court.Dated: February 6, 2019
