Hoffman v. Lang , 674 N.Y.S.2d 385 ( 1998 )

—In an action pursuant to RPAPL article 15 for a judgment declaring that a certain restrictive covenant is unenforceable, the defendants Frances M. Stoughton, Charles Yassky, Marti Yassky, Brian T. McRory, Ann McRory s/h/a Ann N. Lovell, Dorothy Murtha, Charles M. Braunfeld, Bertha F. Braunfeld, Akira A. Yamasaki, Marjorie Yamasaki, Paul D. Starke, June L. Starke, Arlene Regan s/h/a Arlene Ragan, Thomas K. Paciaffi, and Deborah Paciaffi appeal from a judgment of the Supreme Court, Rockland County (Carey, J.H.O.), entered July 17, 1997, which, after a nonjury trial and upon the denial of their motion pursuant to CPLR 4401 for judgment as a matter of law, declared the restrictive covenant to be invalid and unenforceable.

Ordered that the judgment is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Rockland County, for the entry of a judgment declaring that the covenant contained in the deed from Emma Gernant to Edward D. Hoffman and Clio M. Hoffman dated August 27, 1947, in Liber 468 of Deeds at page 353, reading “that the land herein granted and conveyed shall be used for residential purposes only and that no building or structure of any kind whatsoever shall be erected thereon, except the buildings now erected upon the premises may be restored, or replaced with similar buildings”, is valid.

Under the circumstances of this case, the plaintiff failed to establish that, in balancing the equities, the restrictive covenant was of “ ‘no actual and substantial benefit’ ” to the appellants or that it was onerous to her property (Orange & Rockland Utils. v Philwold Estates, 52 NY2d 253, 264, quoting RPAPL 1951 [2]; see also, Deak v Heathcote Assn., 191 AD2d 671). In addition, the plaintiff did not demonstrate that the purpose of the restriction was incapable of being accomplished owing to changed conditions (see, Deak v Heathcote Assn., supra; see also, RPAPL 1951 [2]). Ritter, J. P., Thompson, Altman and McGinity, JJ., concur.