Cases handed down on: May 29, 2019
By Roman, J.P.; Miller, Connolly and Iannacci, JJ.Eugene Kverel res, v. Philip Silverman, ap — (Index No. 5226/15)In an action for injunctive relief, the defendant appeals from (1) an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated August 25, 2015, and (2) an order of the same court dated March 1, 2016. The order dated August 25, 2015, insofar as appealed from, granted the plaintiffs’ motion for a preliminary injunction and denied the defendant’s cross motion pursuant to CPLR 3211(a) to dismiss the amended complaint. The order dated March 1, 2016, insofar as appealed from, denied the defendant’s motions for leave to renew his opposition to the plaintiffs’ motion for a preliminary injunction and to increase the amount of the undertaking posted by the plaintiffs.ORDERED that the order dated August 25, 2015, is reversed insofar as appealed from, on the law, the defendant’s cross motion pursuant to CPLR 3211(a) to dismiss the amended complaint is granted, the plaintiffs’ motion for a preliminary injunction is denied as academic, and so much of the order dated March 1, 2016, as denied the defendant’s motions for leave to renew his opposition to the plaintiffs’ motion for a preliminary injunction and to increase the amount of the undertaking posted by the plaintiffs is vacated; and it is further,ORDERED that the appeal from the order dated March 1, 2016, is dismissed as academic in light of our determination on the appeal from the order dated August 25, 2015; and it is further,ORDERED that one bill of costs is awarded to the defendant.The plaintiffs own and reside at 16 Southway Drive in the Town of Southampton. In October 2010, the defendant entered into a residential contract of sale with nonparty Nicolette Property Associates (hereinafter Nicolette) to purchase an adjacent property, located at 24 Southway Drive, which, at that time, was undeveloped (hereinafter the subject property). The defendant retained an architect, Eric Woodward, to prepare building plans for the construction of a dwelling on the subject property. In February 2012, the defendant applied for a building permit to construct a “single family residence w/ attached 2-car garage, 2nd floor deck, swimming pool and spa, pool house w/ attached screened porch, garage roof terrace and outdoor shower” on the subject property.On May 8, 2012, a building permit was issued for the defendant’s construction on the subject property. On July 5, 2012, the plaintiff Eugene Kverel filed an administrative appeal with the Town Zoning Board of Appeals (hereinafter the ZBA) challenging the issuance of the building permit on the ground, inter alia, that the dwelling “contains 3 stories in violation of the maximum 2 story limitation set forth in section 330-11 and 330-5 of the Southampton Town Code.”In response, in August 2012, Woodward submitted an application to amend the building permit, along with revised building plans. The application was approved. On September 19, 2012, Kverel’s attorney notified the ZBA that Kverel was withdrawing his administrative appeal. Kverel’s attorney stated that “[Kverel] and his architect have reviewed the revised plans and amended building permit application filed in the Building Department as of August 2012, and the revised plans and modifications appear to be in substantial compliance with the Town Building and Zoning Code.” Notwithstanding Kverel’s withdrawal of his administrative appeal, the defendant stated in an affidavit that he was “aware… that Plaintiffs still opposed construction of the House” and that “the zoning challenge to the Building Permit was only one part of Plaintiffs’ overall strategy to prevent [him] from building the House.” It was the plaintiffs’ position that, pursuant to certain restrictive covenants contained in an indenture dated January 14, 1974, the defendant was required to obtain the plaintiffs’ approval before constructing a dwelling on the subject property.In December 2012, the defendant, as contract vendee, and Nicolette, as owner of the property, commenced an action against, among others, the plaintiffs seeking a judgment declaring, inter alia, that the plaintiffs were not entitled to enforce the restrictive covenants regarding the subject property. In March 2013, the parties entered into a stipulation of settlement (hereinafter the stipulation), which was so-ordered by the court, pursuant to which the plaintiffs agreed to entry of a judgment declaring, inter alia, that the defendant and Nicolette “are entitled to build upon the Premises any single family residence for which they have obtained a building permit from the Town… , whether the residence is the one currently planned by [defendant] or one larger and more extensive so long as it complied with Town… law, ordinances, and regulations.”In April 2013, the defendant purchased the subject property from Nicolette for the sum of $500,000. The building permit was amended in May 2013, and again in November 2013. In or around July 2014, the defendant advertised the sale of a home to be built on the subject property and included architectural renderings of the proposed home. The defendant had offered to sell the subject property to the plaintiffs, but the parties were unable to reach an agreement. Construction began in or around August 2014. In February 2015, the building permit was amended yet again.In March 2015, the plaintiffs commenced this action to “enjoin [the defendant] from constructing a home… that violates the [Town] Code.” The plaintiffs simultaneously moved to preliminarily “enjoin[ ] [the defendant] from constructing the top floor of the structure being built [on the subject property].” The defendant opposed the plaintiffs’ motion and cross-moved pursuant to CPLR 3211(a) to dismiss the amended complaint. The plaintiffs subsequently filed an amended complaint, which was substantially similar to the original complaint except that it included an allegation that the subject property was a substandard lot in an R-60 residential zone. The defendant answered and interposed a counterclaim alleging that the plaintiffs breached the stipulation entered into between the parties.
