Zaccaro v. Congregation Tifereth Israel of Forest Hills, Inc.

Majority

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Rose Zaccaro et al., Respondents, v. Congregation Tifereth Israel of Forest Hills, Inc., Appellant.

Argued May 22, 1967;

decided June 1, 1967.

Stanley E. Lowell and Paul Shilkoff for appellant.

I. The courts below erred in confusing a structural restriction with a use restriction. (Evangelical Lutheran Church v. Sahlem, 254 N. Y. 161 ; Baumert v. Malkin, 235 N. Y. 115 ; Single v. Whitmore, 307 N. Y. 575 ; Premium Point Park Assn. v. Polar Bar, 306 N. Y. 507 .) II. The language of the restrictive covenant does not prohibit the use of the premises for religious purposes in addition to residential purposes. (Barnett v. Vaughan Inst.,

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134 App. Div. 921 , 197 N. Y. 541 ; Pagenstecher v. Carlson, 146 App. Div. 738 ; Mischlich v. Lubin, 182 App. Div. 703 .) III. There has been a substantial change in the character of the neighborhood sufficient to prevent the equitable enforcement of these restrictions. (Trustees of Columbia Coll. v. Thacher, 87 N. Y. 310 .) IV. The instant action is barred by the Statute of Limitations. V. Respondents have waived any right which they may have had to enforce the restrictions involved herein and are estopped thereby. (Batchelor v. Hinkle, 210 N. Y. 243 ; Forstmann v. Joray Holding Co., 244 N. Y. 22 ; Premium Point Park Assn. v. Polar Bar, 306 N. Y. 507 .) VI. Respondents were given no right to enforce the restrictive covenant. (Steinmann v. Silverman, 14 N. Y. 243 ; Buffalo Academy of Sacred Heart v. Boehm Bros., 267 N. Y. 242 ; Bristol v. Woodward, 251 N. Y. 275 .) VII. The purported 1957 declaration was contrary to the terms of the restrictive covenant contained in appellant’s deed and was invalid and ineffective as a transfer of enforcement rights. (Nicholson v. 300 Broadway Realty Corp., 7 N Y 2d 240 .)

Benjamin Machinist for respondents.

I. The covenant restricting the buildings to be erected, to be dwelling houses for the use and occupancy of not more than one family, prohibits the use of said premise as a dwelling house for one family, and something else. (Trustees of Columbia Coll. v. Lynch, 70 N. Y. 440 ; Rowland v. Miller, 139 N. Y. 93 ; Korn v. Campbell, 192 N. Y. 490 ; Booth v. Knipe, 225 N. Y. 390 ; Normus Realty Corp. v. Disque, 20 A D 2d 277 , 16 N Y 2d 912 ; Baumert v. Malkin, 235 N. Y. 115 ; Barnett v. Vaughan Inst., 134 App. Div. 921 , 197 N. Y. 541 ; Hart v. Little, 103 Misc. 620 ; Mischlich v. Lubin, 182 App. Div. 703 ; Cromwell v. American Bible Soc., 202 App. Div. 625 ; Neidlinger v. New York Assn. for Improving Condition of the Poor, 121 Misc. 276 ; Eppolito v. Medlicott, 28 Misc 2d 43 ; Evangelical Lutheran Church v. Sahlem, 254 N. Y. 161 ; Single v. Whitmore, 307 N. Y. 575 ; Premium Point Park Assn. v. Polar Bar, 306 N. Y. 507 .) II. Appellant’s admissions that it is using its premises as a synagogue; that it took title knowing of the covenant, and subject thereto, and that it purchased the premises with the intention of using the same for a synagogue, warranted the judgment appealed from. (Bullock v. Steinmil Realty, 1

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Misc 2d 46 , 3 A D 2d 806 ; Todd v. North Ave. Holding Corp., 121 Misc. 301 ; Atlantic Dock Co. v. Leavitt, 50 Barb. 135 , 54 N. Y. 35 ; Vogeler v. Alwyn Improvement Corp., 247 N. Y. 131 ; Thompson v. Diller, 161 App. Div. 98 ; Pagenstecher v. Carlson, 146 App. Div. 738 ; Rubel Bros. v. Dumont Coal & Ice Co., 200 App. Div. 135 .) III. Appellant’s claim that there has been a substantial change in the character of the neighborhood was not established and is contrary to fact. (Cummins v. Colgate Props. Corp., 2 Misc 2d 301 , 2 A D 2d 749 ; Evangelical Lutheran Church v. Sahlem, 254 N. Y. 161 ; Bullock v. Steinmil Realty, 1 Misc 2d. 46 , 3 A D 2d 806 ; Lefferts Manor Assn. v. Fass, 28 Misc 2d 1005 ; Brown v. Williams, 4 Misc 2d 312 , 3 A D 2d 939 ; Normus Realty Corp. v. Disgue, 20 A D 2d 277 , 16 N Y 2d 912 .) IV. Appellant’s claim that, because the Department of Buildings issued a certificate of occupancy to its grantor to use said premises as a chapel, it may now use said premises for a synagogue is without merit because such permission cannot override private covenants. (Neilson v. Hiral Realty Corp., 172 Misc. 408 ; Brown v. Williams, 4 Misc 2d 312 , 3 A D 2d 939 , 4 A D 2d 745 ; Lefferts Manor Assn. v. Fass, 28 Misc 2d 1005 , 13 A D 2d 812 ; Cord Meyer Development Co. v. Bell Bay Drugs, 25 A D 2d 744 .) V. Respondents waived no rights by failing to protest defendant grantor’s violation of the covenant. (Rothschild v. Title Guar. & Trust Co., 204 N. Y. 458 ; Cummins v. Colgate Props. Corp., 2 Misc 2d 301 , 2 A D 2d 749 ; Galway v. M. E. R. Co., 128 N. Y. 132 ; Brown v. Williams, 4 Misc 2d 312 , 3 A D 2d 939 , 4 A D 2d 745 ; McCain Realty Co. v. Aylesworth, 128 Misc. 408 ; Neilson v. Hiral Realty Corp., 172 Misc. 408 ; Rowland v. Miller, 139 N. Y. 93 ; Evangelical Lutheran Church v. Sahlem, 254 N. Y. 161 .) VI. The questions raised by appellant were not raised before the trial court, nor argued before the Appellate Division, and may not be raised at this time. (Cromwell v. American Bible Soc., 202 App. Div. 625 ; Persky v. Bank of America Nat. Assn., 261 N. Y. 212 ; Matter of Lefkowitz v. Cohen, 286 N. Y. 499 .)

Defendant congregation appeals from an order of the Appellate Division, Second Department, affirming a judgment of the Supreme Court, Queens County, permanently enjoining it from using certain premises owned by it for any

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other purpose than as a dwelling house for the occupancy of a single family.

The premises in question, located on 69th Road in Forest Hills, Queens, City of New York, were purchased by the defendant in 1965, with defendant intending to use the property as a residence for its rabbi and as a synagogue. Since 1946 the premises had been used by a congregation of the Seventh Day Adventists as a chapel and as religious administration offices. The Seventh Day Adventists had been granted a certificate of occupancy by the City of New York for use of the building for such purposes.

The basis for this lawsuit, initiated by other property owners in the area only after sale of the premises to the defendant congregation, is a restriction against the erection of ‘ ‘ any building except a dwelling house for the use and occupancy of not more than one family ’ ’ placed upon all parties ’ lots by restrictive covenants inserted in all deeds to lots in their subdivision by the parties ’ common grantor.

On this appeal defendant challenges plaintiffs’ claim of standing to enforce these restrictions, raising a number of points directed at that issue, but we need not reach this question, as, even assuming plaintiffs’ standing to sue on the covenants, we hold it was error as a matter of law for an injunction to issue restraining defendant from using its property in the same fashion in which it had been openly and continuously used, without any objection by neighborhood property owners, for 18 years before defendant’s purchase of it. (See Forstmann v. Joray Holding Co., 244 N. Y. 22 , 29.) While it is true that mere delay, without prejudice, will not bar the allowance of equitable relief (Weiss v. Mayflower Doughnut Corp., 1 N Y 2d 310 , 318), where a party’s delay in asserting his rights has become unconscionable and where the party against whom the alleged right is sought to be asserted has been induced by such delay to incur expense or take other measures which will now result in prejudice to it if the long-delayed request for equitable relief is granted, a court of equity ought to refuse to aid the party so belatedly seeking to assert his claimed rights. (See Forstmann v. Joray Holding Co., supra, pp. 31-32; see, also, Evangelical Lutheran Church v. Sahlem, 254 N. Y. 161 , 166.) Plaintiffs’ delay in this case and its effect upon defendant were of such a character.

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The order of the Appellate Division and the judgment of the Supreme Court should be reversed, the injunction dissolved and plaintiffs’ complaint dismissed.

Chief Judge Fuld and Judges Van Voorhis, Burke, Scileppi, Bergan, Keating and Breitel concur.

Order of Appellate Division reversed and matter remitted to Special Term for further proceedings in accordance with the opinion herein.

Cases cited

Evangelical Lutheran Church of Ascension v. Sahlem 254 N. Y. 161 N.Y. 1930-07-08 at 166 p. 77, p. 78, p. 79, p. 80
Baumert v. Malkin 235 N. Y. 115 N.Y. 1922-02-27 p. 77, p. 78
Single v. Whitmore 307 N. Y. 575 N.Y. 1954-12-02 p. 77, p. 78
Premium Point Park Ass'n v. Polar Bar, Inc. 306 N. Y. 507 N.Y. 1954-04-15 p. 77, p. 78
Batchelor v. Hinkle 210 N. Y. 243 N.Y. 1914-02-24 p. 78
Forstmann v. Joray Holding Co. 244 N. Y. 22 N.Y. 1926-11-30 at 29 p. 78, p. 80
Buffalo Academy of Sacred Heart v. Boehm Bros. 267 N. Y. 242 N.Y. 1935-04-17 p. 78
Bristol v. Woodward 251 N. Y. 275 N.Y. 1929-07-11 p. 78
Nicholson v. 300 Broadway Realty Corp. 7 N Y 2d 240 N.Y. 1959-12-30 p. 78
Trustees of Columbia College v. Lynch 70 N. Y. 440 N.Y. 1877-09-18 p. 78
Rowland v. Miller 139 N. Y. 93 N.Y. 1893-10-03 p. 78, p. 79
Korn v. Campbell 192 N. Y. 490 N.Y. 1908-09-29 p. 78
Booth v. Knipe 225 N. Y. 390 N.Y. 1919-01-28 p. 78
Normus Realty Corp. v. Disque 20 A D 2d 277 N.Y. App. Div. 1964-02-27 p. 78, p. 79
Normus Realty Corp. v. Disque 16 N Y 2d 912 N.Y. 1965-10-21 p. 78, p. 79
Hart v. Little 103 Misc. 620 N.Y. Sup. Ct. p. 78
Neidlinger v. New York Ass'n for Improving Condition of the Poor 121 Misc. 276 N.Y. Sup. Ct. p. 78
Eppolito v. Medlicott 28 Misc 2d 43 N.Y. Sup. Ct. 1961-02-03 p. 78
Todd v. North Avenue Holding Corp. 121 Misc. 301 N.Y. Sup. Ct. p. 79
Atlantic Dock Co. v. Leavitt 50 Barb. 135 N.Y. Sup. Ct. 1867-09-09 p. 79
Atlantic Dock Co. v. Leavitt 54 N. Y. 35 N.Y. Comm'n App. p. 79
Vogeler v. Alwyn Improvement Corp. 247 N. Y. 131 N.Y. 1928-01-10 p. 79
Thompson v. Diller 161 App. Div. 98 N.Y. App. Div. 1914-03-06 p. 79
Cummins v. Colgate Properties Corp. 2 Misc 2d 301 N.Y. Sup. Ct. 1956-01-31 p. 79
Bullock v. Steinmil Realty, Inc. 1 Misc 2d. 46 N.Y. Sup. Ct. 1955-10-22 p. 79
Lefferts Manor Ass'n v. Fass 28 Misc 2d 1005 N.Y. Sup. Ct. 1960-12-22 p. 79
Brown v. Williams 4 Misc 2d 312 N.Y. Sup. Ct. 1956-01-11 p. 79
Neilson v. Hiral Realty Corp. 172 Misc. 408 N.Y. Sup. Ct. 1939-11-09 p. 79
Rothschild v. Title Guarantee & Trust Co. 204 N. Y. 458 N.Y. 1912-02-20 p. 79
Galway v. Metropolitan Elevated Railway Co. 128 N. Y. 132 N.Y. 1891-10-06 p. 79
McCain Realty Co. v. Aylesworth 128 Misc. 408 N.Y. Sup. Ct. 1926-12-28 p. 79
Persky v. Bank of America National Ass'n 261 N. Y. 212 N.Y. 1933-02-28 p. 79
Lefkowtiz v. Cohen 286 N. Y. 499 N.Y. 1941-09-11 p. 79
Weiss v. Mayflower Doughnut Corp. 1 N Y 2d 310 N.Y. 1956-05-31 at 318 p. 80