Petrouleas v Noce Mgt., Inc.

[*1] Petrouleas v Noce Mgt., Inc. 2012 NY Slip Op 50354(U) Decided on February 14, 2012 Supreme Court, Richmond County Minardo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 14, 2012
Supreme Court, Richmond County

William Petrouleas and JOANNA PETROULEAS, Plaintiff(s),

against

Noce Management, Inc., Defendant(s).



104090/2011

Philip G. Minardo, J.

The following papers numbered 1 to 6 were fully submitted on the 14th day of December, 2011.

Papers Numbered

Plaintiffs' Order to Show Cause, dated October 31, 2011, with Supporting

Papers and Exhibits ____________________________________________________ 1

Defendant's Cross Motion, dated November 3, 2011, with Supporting Papers

and Exhibits __________________________________________________________ 2

Plaintiffs' Memorandum of law, dated November 3, 2011 ______________________ 3

Plaintiffs' Affirmation in Opposition to Defendant's Cross Motion and in

Further Support of Plaintiffs' Motion, dated November 10, 2011, with

Supporting Papers and Exhibits ___________________________________________ 4

Defendant's Reply Affirmation, dated November 11, 2011 _____________________ 5

Defendant's Supplemental Memorandum of Law, dated November 17, 2011 _______ 6

____________________________________________________________________________

Plaintiffs WILLIAM PETROULEAS and JOANNA PETROULEAS move, by Order to Show Cause, dated October 31, 2011, for a temporary restraining order and a preliminary injunction enjoining the further construction of any improvements on real property known as 84 Whitlock Avenue, Staten Island, New York. Defendant NOCE MANAGEMENT, INC. cross-moves to dismiss plaintiffs' complaint on the grounds that the complaint fails to state a cause of action and that plaintiffs' causes of action are barred by the statute of frauds. [*2]

Plaintiffs' request for a temporary restraining order has been resolved by the parties agreement that defendant would be temporarily restrained from any further construction "related in any manner to the roof height of the structure" being built on the subject property pending the resolution of these cross-motions. Subsequent to the return date, a hearing was conducted before the Court I aid of its determination on December 6, 2011 and December 14, 2011.

In 1991, plaintiffs purchased the premises known as 5 Helena Road, Staten Island, New York ("Helena Road") from George and Nancy Cambria. The Helana Road property is located at the top of a hill, with a backyard attaining an elevation of approximately 280 feet above sea level. When purchased by plaintiffs, it afforded its occupants an unobstructed view of the Richmond County Country Club's golf course and the surrounding areas. At the time of their purchase, plaintiffs' vendor the Cambrias were also the owners of two vacant parcels situated adjacent to and below the Helena Road property. To the extent relevant, the deed, between plaintiffs and the Cambrias, dated December 10, 1991, includes the following provision:

"The party of the first part [Cambria] agrees to restrict construction

on any contiguous lots presently owned (specifically Block 908, Lots

125 and 126) so that no structure shall have a height greater than 280

feet above sea level. This covenant shall run with the land."

Plaintiff WILLIAM PETROULEAS maintains that this height restriction was "critical" to his decision to purchase the property as it was his belief that this provision would "ensure that the beautiful view . . . would remain unspoiled" (Affidavit of William Petrouleas in Support of Order to Show Cause, dated October 28, 2011, ¶5).

In 2003, the Cambrias sold the two contiguous parcels to nonparty Lisa Noce, who in a deed dated December 14, 2005, changed nominal ownership of the properties, now known as 84 Whitlock Avenue, Staten Island, New York ("Whitlock Avenue"), to Joseph Noce, her husband, and herself. In December, 2010, the Noces transferred title to the Whitlock Avenue property to defendant NOCE MANAGEMENT, INC. The deed of transfer between the Cambrias and Lisa Noce did not contain any language referencing the height restriction contained in the deed transferring the Helena Road property from the Cambrias to plaintiffs in 1991.

As of the motion, defendant has substantially completed the construction of a one-family house on Whitlock Avenue, a framed three-story residence extending approximately 285 feet above sea level. In this action, plaintiffs seek to compel defendant to comply with the height restriction in their deed, and reduce the level of the home to 280 feet in order to preserve their view.

In pertinent part, plaintiffs allege that defendant should be enjoined from completing the residence in its current configuration because the defendant NOCE MANAGMENT, INC., as well as its predecessors in title, Lisa Noce and/or Joseph Noce, had actual and/or constructive notice of the height restriction imposed on their common owner (Cambria) of any subsequent structure to be built on Whitlock Avenue. In opposition, defendant asserts that it is not bound by any "restrictive covenant" contained in plaintiffs' deed to the Helena Road property because neither the deed between Lisa Noce and the Cambrias for the adjoining property on Whitlock Avenue or any deed in defendant's chain of title contains any corresponding restriction.

HEARING

WILLIAM PETROULEAS [*3]

Plaintiff WILLIAM PETROULEAS (hereinafter "PETROULEAS") testified that, prior to the purchase of the Helena Road premises, he spoke to George Cambria to insure that there would be a height restriction on any structure to be built on Whitlock Avenue. He also stated that he relied on the covenant as a condition for purchasing the property and that is why the restriction was included in his deed at the closing

Prior to the commencement of the construction of the Whitlock Avenue home by defendant, PETROULEAS stated that he had a conversation with Joseph Noce wherein he advised the latter that there was a restriction related to the height of any proposed building and Noce acknowledged that he was aware of the height restriction. PETROULEAS further testified that after his conversation with Mr. Noce, he spoke with Leonard Rampulla, defendant's architect and an individual who had also done work for PETROULEAS on a prior occasion, to confirm that the "height restriction would be respected". PETROULEAS indicated that Leonard Rampulla said "I got you covered", which PETROULEAS accepted as confirmation that the height of defendant's house would not be greater that the imposed limitation.

PETROULEAS confirmed that the height of defendant's home presently obstructs his view, and that he retained a surveyor to confirm his suspicion that the height restriction was being violated. PETROULEAS indicated that the surveyor determined that the height of the structure was some 285 feet above sea level. Plaintiffs also acquired copies of the plans from the building department, and they confirmed that the level of the structure would exceed the 280 feet restriction. Finally, PETROULEAS opined that the height of the structure on Whitlock Avenue is restricted by the language contained in the his deed.

WILLIAM TRANG, P.E.

William Trang (hereinafter "Trang"), a professional engineer and surveyor licensed in the States of New York and New Jersey, testified that his firm was retained by plaintiffs to determine the elevation of defendant's structure on Whitlock Avenue. Trang set forth the methodology that was used in determining the summit of the residence (benchmarks, field book notes, etc.), and opined on the basis thereof, that the roof exceeded 280 feet at four locations, measuring 244.86, 287.68, 285.37 and 285.50 feet above sea level, respectively. Trang indicated that his firm had prepared a drawing of the findings and that the elevations that were established would vary by, at most, a few inches.

LEONARD RAMPULLA

Leonard Rampulla (hereinafter "Rampulla"), an architect licensed in the State of New York and a principal of Rampulla Associates Architects, testified that he has been the architect of record for the construction of the Whitlock Avenue residence since 2005. Rampulla confirmed that he had been retained by plaintiffs to do some work for them 15 to 20 years ago, and was aware of the 280 foot height restriction as a result of having a conversation with Mr. PETROULEAS before construction of defendant's Whitlock Avenue home had commenced.

Rampulla further stated that prior to his firm being retained by defendant, the Noces had utilized Land Planning to obtain site plan approval for the construction of their home from the Staten Island branch of the City Planning Commission, and that in 2004 Land Planning had provided the Noces with the required site plan approval for a residence with a height of 293 feet.

Rampulla then recounted a conversation which he had with Joseph Noce prior to the commencement of construction, wherein he advised Joseph Noce that there was a height [*4]restriction. Although, Rampulla testified that he originally submitted plans for a residence with a height of 280 feet to the Noces, those plans were later revised upwards to a height of 283 feet because Rampulla had been told by Joseph Noce that PETROLEAS approved the revision.

Finally, Rampulla testified that he had never seen any documentation, including the subject deed, which providedfor a height restriction, and that he could not account for the reason that the structure was determined by Trang to have a height of 285 feet when it was designed to have a height of 283 feet.

ALFRED SAULO

Alfred Saulo (hereinafter "Saulo"), a licensed engineer in the State of New York, testified tha he was retained by plaintiffs to prepare two sectional drawings of their backyard view, the first depicting the view from the rear of plaintiffs' backyard with defendant's house constructed with an elevation of 280 feet, and the second depicting ed the view from the rear of plaintiff's backyard with defendant's house constructed to a height of 285 feet.

As a result, Saulo opined that the five foot difference in the height of the Whitlock Avenue home would significantly interfere with the plaintiffs' view from the specific location sited in the drawings, e.g. in the middle of the rear yard of the property. From this location, the height differential would cause plaintiffs to lose their view of the golf course as well as other scenic areas. However, Saulo acknowledged that plaintiffs' panorama would substantially change if viewed from other areas than that chosen for the drawings.

LISA NOCE

Lisa Noce testified that she had no knowledge of any restrictions on the development of Whitlock Avenue property when she purchased it in 2003. She claimed that she first learned of the alleged height restriction in a letter from plaintiffs' attorney which she received a few months prior to the hearing

JOSEPH NOCE

Although title to the property was obtained by his wife, Joseph Noce asserted that he was also involved with the purchase of the Whitlock Avenue property from the Cambrias. He denied having any knowledge, inter alia, of any height restriction on the development of the property until he was so advised approximately 1 ½ years ago by his architect, Leonard Rampulla. Noce stated that he reviewed the Whitlock Avenue deed and concluded that there was no such restriction. Thereafter, he met with PETROULEAS to review his proposed plans and advised that there was a height restriction. The witness testified that he thereafter contacted his attorney to determine if there were any limitations to the property and was advised that there was no restriction.

CONCLUSION

It is uncontroverted that Lisa Noce did not have actual notice of the "restrictive covenant" contained in the Helena Road deed between plaintiffs and the Cambrias when she obtained title to Whitlock Avenue in 2003. It is also uncontroverted that Joseph Noce first learned of the alleged height restriction approximately 1 ½ years to 2 years prior to the commencement of this action and [FN1] after he took joint title to the property with Lisa Noce in 2005. [*5]

Plaintiffs argue that the transfer of title in 2010 to the Whitlock Avenue property from the Noces to defendant NOCE MANAGEMENT INC. supports their contention that the grantors had prior actual notice of the restrictive covenant. This argument is unpersuasive in the face of Joseph Noce's testimony to the effect that the transfer to the corporate defendant was a mere ministerial act taken in order to comply with a requirement of the bank that was financing the construction. Not only does the Court find this testimony to be credible but it is consistent with Noce's earlier testimony that he was first informed of a possible height restriction shortly before the transfer and remained unconvinced of its existence or effect. Accordingly, plaintiffs' claim that defendant NOCE MANAGEMENT INC. should be enjoined from completing construction of the residence on the ground that it had actual notice of the "restrictive covenant" is denied.

Plaintiffs also maintain that defendant should be compelled to reduce the height of the residence based on constructive notice or the imposition of an "easement by implication" of the height restriction indirectly on the defendant. In this particular, it is plaintiffs' claim that New York City Administrative Code §7-626(f) indirectly imputes constructive notice of the height limitation to defendants because the County of Richmond has a real property "block and lot" indexing system for real property rather than a "block" indexing system.

It is familiar law that "[a] purchaser is not normally required to search outside the chain of title . . ., and is not chargeable with constructive notice of conveyances recorded outside of that purchaser's direct chain of title"( Farrell v. Sitaras, 22 AD3d 518, 519-520 [2005]quoting Witter v. Taggart, 78 NY2d 234, 239 [internal quotation marks omitted]). Nevertheless, an important exception to this rule applies in counties where a block and lot indexing system is used, since the block and lot system "enables the title searcher readily to find all conveyances within a given time frame which affect a particular parcel of land" (Andy Assoc. v. Bankers Trust Co., 49 NY2d 13, 24). Under such circumstances, "there is no logical reason to afford purchasers additional protection by applying the time-honored rule that a purchaser is not chargeable with constructive notice of conveyances recorded outside of his direct chain of title (id.). As a result, in counties using a "block and lot" system, a purchaser has been held to be charged "with record notice of all matters indexed under the block and lot numbers corresponding to the purchaser's property, regardless of whether such information also appears in his or her direct chain of title" (id.).

However, defendant submits that Real Property Law §291 entitled "Recording of Conveyances" is controlling. This section provides, in relevant part, as follows:

Every such conveyance not so recorded is void as against any person who subsequently purchases or acquires by exchange or contracts to purchase or acquire by exchange, the same real property or any portion thereof, . . . in good faith and for a valuable consideration, from the same vendor or assignor, his distributees or devisees . . .".

In accordance with this statute, an unrecorded conveyance of an interest in real property is void as against a subsequent good faith purchaser for value without actual or constructive notice. Hence, defendant claims that the restriction is unenforceable as against it because the height [*6]limitation does not appear in the chain of title for the Whitlock Avenue property. Defendant also relies on Real Property Law §251 which states that a covenant is not implied in a conveyance of real property.

Although, the cases cited by plaintiffs are relevant, it remains uncontroverted that the above provisions of the Real Property Law have not been changed as a result of the conversion by the Richmond County Clerk to a "block and lot" indexing system and should take precedence when viewed in conflict with New York City's Administrative Code. In any event, injuctive relief being equitable in nature, the Court would be loathe to invoke it here, where the cost to cure would be great, the deviation minimal, and the interference with plaintiffs' supposed "view" has been demonstrated to apply only to a single location in plaintiffs' backyard.

Therefore, plaintiffs' application for a permanent injunction is denied, and, defendant's Cross Motion to dismiss the complaint for failure to state a cause of action is granted.

Accordingly, it is

ORDERED the relief requested in plaintiff's Order to Show Cause, dated October 31, 2011, is denied in all respects; and it is further

ORDERED that defendant's Cross Motion to dismiss the complaint is granted; and it is

ORDERED that the Clerk enter judgment accordingly.

This shall constitute the decision and order of the Court.

Dated: February 14, 2012

E N T E R,

_______________________________

Hon. Philip G. Minardo Footnotes

Footnote 1: The Court was furnished with defendant NOCE MANAGEMENT CORP.'s K-1 tax filings for the years 2001- 2010 for an in camera review which confirmed that either Lisa Noce and/or Joseph Noce, individually or jointly, were the only shareholders of the corporation since its formation.