Lanaki Development, Inc. v. Evans

289 A.D.2d 948, 734 N.Y.S.2d 520, 2001 N.Y. App. Div. LEXIS 12472

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2001
• Status: Published

Opinions

Judgment modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in awarding plaintiff damages in the amount of $3,000 for defendants’ violation of a restrictive covenant prohibiting defendants from parking their motor home in their driveway in the spring of 1997, and thus we modify the judgment by vacating that award of damages. Based upon our review of the statement in lieu of record on appeal (see, CPLR 5527; 22 NYCRR 1000.4 [c] [1]), we conclude that there is no evidence to support that award of damages. Contrary to plaintiff’s contention, the court’s determination that plaintiff was not damaged by the failure of a prospective buyer to purchase a lot in the development because defendants had parked their motor home in their driveway is not against the weight of the evidence (see generally, Barresi v Kapr, 226 AD2d 1074, appeal dismissed 88 NY2d 1005).

The court properly determined that the supplemental restrictive covenants apply to defendants. Those covenants were of record when the property was conveyed to defendants. However, the record is insufficient to enable us to review plaintiff’s further contention that defendants’ driveway extension was constructed in violation of the restrictive covenants and supplemental restrictive covenants.

All concur except Kehoe, J., who dissents in part in the following Memorandum.