Leisure Glen Homeowners Ass'n v. Torres

20 A.D.3d 397, 797 N.Y.S.2d 315

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 5, 2005
• Status: Published

Opinion

In an action to enforce a restrictive covenant on real property, the defendants appeal from an order of the Supreme Court, Suffolk County (Catterson, J.), entered February 17, 2004, which granted the plaintiff’s motion for summary judgment and directed them to remove a fence from their property.

Ordered that the order is affirmed, with costs.

In response to the plaintiffs prima facie showing of its entitlement to summary judgment, the defendants failed to raise a triable issue of fact as to whether or not the restrictive covenant in their deed resulted from any unconstitutional action by the Town of Brookhaven Planning Board (see generally Dolan v City of Tigard, 512 US 374 [1994]; Nollan v California Coastal Comm’n, 483 US 825 [1987]; Alvarez v Prospect Hosp., 68 NY2d [1986]). Thus, the Supreme Court properly directed the defendants to remove the fence.

The defendants’ remaining contentions are without merit. Prudenti, P.J., Florio, Cozier and Lifson, JJ., concur.