SUPREME COURT PROPERLY DISMISSED THE CLAIM THAT DEFENDANT VIOLATED THE RESTRICTIVE COVENANT CONCERNING THE HEIGHT OF HOUSES BECAUSE THE TERM ‘ONE AND A HALF STORIES’ WAS AMBIGUOUS AS TO HEIGHT; HOWEVER THE CLAIMS ALLEGING VIOLATION OF SETBACK RESTRICTIONS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court and ordering a new trial, determined defendant’s motion for a directed verdict dismissing claims that defendant had violated certain restrictive covenants when defendant’s house was constructed should not have been granted. The court noted that plaintiff did not prove defendant violated the covenant restricting the height of a house to one and a half stories. The use of the term “stories” was deemed ambiguous as a measure of height. However the proof demonstrated violations of the required setbacks and Supreme Court should not have dismissed those claims because other properties in the subdivision were in violation or because the house was already built:

… “[T]he words not more than one and one-half stories in height’ are ambiguous in scope,” and because the defendants, who were seeking to enforce the covenant, “failed to present . . . clear and convincing proof with respect to what number of feet constitutes a story in height,’ the scope of the covenant is uncertain, doubtful, or debatable,’ thus rendering it unenforceable as applied to plaintiff’s residence” … . …

Although the court determined that there was a violation of at least one of the covenants and restrictions here, it granted the motion on the ground that plaintiff could not seek equitable relief because she did not seek such relief against other property owners within the subdivision regarding their alleged violations of the same covenants and restrictions. That was error. Plaintiff is “entitled to ignore inoffensive violations of the restriction[s] without forfeiting [her] right to restrain others which [she] find[s] offensive” … . Moreover, the court’s reluctance to grant equitable relief where, as here, the house has already been built was not a valid basis for granting defendant’s motion. Defendant “proceeded with construction of the [house] with knowledge of the restrictive covenants and of plaintiff[‘s] intention to enforce them” … . Kleist v Stern, 2019 NY Slip Op 05888, Fourth Dept 7-31-19