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Birch Tree Partners, LLC v. Windsor Digital Studio, LLC
Citations: 95 A.D.3d 1154; 945 N.Y.S.2d 162
Court: Appellate Division of the Supreme Court of the State of New York; May 23, 2012; New York; State Appellate Court
The defendant is appealing a portion of a June 21, 2011 order from the Supreme Court, Suffolk County, which denied its motion for summary judgment to dismiss a complaint regarding alleged violations of a restrictive covenant. The court modified the order to grant summary judgment dismissing the third cause of action regarding the removal of a privet hedge, while affirming the remaining aspects without costs. The property in question is bound by a restrictive covenant from October 18, 1956, which prohibits the erection of any building or structure and restricts the removal of desirable trees or vegetation that would detract from its appearance as a screen between the defendant's and plaintiff's properties. The dispute arose after the defendant allegedly removed vegetation, installed a six-foot tall fence, and planted a privet hedge within the restricted area. The plaintiff's complaint includes demands to remove the fence, restore the restricted area, and remove the hedge. The court emphasized that restrictive covenants are generally constructed against enforcement, but the intent of the parties is the primary consideration. Ambiguities in the covenant's language, such as whether a fence qualifies as a "structure" and the definition of "desirable" vegetation, prevent a determination that the defendant had the right to make the alterations. There are significant factual questions regarding the original intent of the covenant's parties, including the existence and configuration of fences and types of vegetation as of 1956. The trier of fact needs to resolve several factual issues regarding the drafting of the restrictive covenant to ascertain its intent and scope. Consequently, the defendant did not prove its prima facie entitlement to judgment as a matter of law on the first and second causes of action, leading the Supreme Court to correctly deny the defendant’s motion for summary judgment on these claims. Conversely, the defendant did establish a prima facie entitlement to summary judgment regarding the third cause of action, which involved the removal of a privet hedge planted by the defendant. The restrictive covenant does not prohibit the introduction of new vegetation on the property, and the plaintiff failed to present a triable issue of fact against this claim. Therefore, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the third cause of action. Rivera, J.E, Belen, Sgroi, and Miller, JJ. concur.