Piekunka v Straubing
Annotate this Case
Download PDF
Piekunka v Straubing 2016 NY Slip Op 30021(U) January 6, 2016 Supreme Court, Wayne County Docket Number: 77237 Judge: Dennis M. Kehoe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF WAYNE THOMAS E. PIEKUNKA, JOHN A . HINSMAN, JR. and GLENDA L. HINSMAN, Plaintiffs, -vsC. ROBERT STRAUBING and CORINNE V. STRAUBING, Defendants. DECISION AND ORDER lnd~x No. 77237 Lacy, Katzen, LLP Michael Wegman, Esq. , of Counsel Attorney for the Plaintiffs r_ . ; Kaman, Berlove, Marafioti, Jacobstein & Goldman, LLP John L. Bulger, Esq. , of Counsel Attorneys for the Defendants The Plaintiffs Thomas E. Piekunka, John A. Hinsman, Jr. , and Glenda L. Hinsman have moved for an Order granting summary judgment against the Defendants C. Robert Straubing and Corinne V. Strau, ing, and directing the Defendants to "dismantle and remove a covered , partially enclosed deck constructed on real property owned by the Defendants, co~monly known as 8642 Greig Street, Sodus Point, New York". In the event that this motion is denied, the Plaintiffs also request an Order precluding the Defendants from offering expert witness testimony. The Defendants have opposed the motion in its entirety, maintaining that there are material issues of fact which -1- [* 2] must await resolution at trial. The Plaintiffs' claim in this action arise from the Defendants' construction of a covered deck, including a fireplace and ~rivacy walls, connected to the south side of the Defendants' house, extending out toward Sodus Bay. The Plaintiffs are neighbors of the Defendantt Piekunka is the owner of premises known as 8646 Greig Street, Sodus Po,int, New York, and Hinsman is the owner of premises known as 8462 Greig Srreet, Sodus Point, New York. The Plaintiffs maintain that the covered teck in its present form violates the restrictive covemants which burden all thr e properties, which were conveyed to the respective parties by a commln grantor known I as Sand Point Development Company. The deck, which j as in existence at the time the Straubings purchased the property, was modified in 2011, following discussions between the parties regarding the prr posed changes. Subsequent modifications, including the construction of th roof, were completed on or about June 6, 2014. This action ensued, in which the Plaintiffs contend that the Defendants' actions in violating he restrictive covenants obstruct their view of the bay and otherwise imJede their enjoyment of their respective properties. The Plaintiffs commenced the instant action by filing a Summons and Complaint in the Wayne County Clerk's Office on June 4, 2014. The -2- [* 3] ' . Defendants have filed and served an Answer with four Affi~mative Defenses. Discovery has gone forward, and depositions of all parties texcept Corinne Straubing) have been conducted. The restrictive covenant states in part as follows: ''This conveyance is made SUBJECT to the fol owing covenants and restrictions which are to run with the t tie to the land: The porch line of the dwelling to be erected on said l<Dt facing the bay shall be not more that 90 (ninety) feet southerly istant from and parallel to the southern curb of the road-way as esignated on said map, and no part of such building shall exteT northerly nearer than a line parallel to said southern curb of ro dway, and (30) thirty feet southerly therefrom. No building shall be erected on any portion of r id lot except between 30 and 90 feet parallel lines above mentioned except boat and bath houses which shall have an el vation of not to exceed (6) feet above the established high wa er mark of $odus Bay." The Deed by which Defendants acquired title to the Straub ng Property recites at page 1, the second full paragraph from the botto -3- of that page: [* 4] "This conveyance is made and accepted subjert to all public utility easements, easements, covenants and restrictions of record affecting said pre~m ises, if any. " The Plaintiffs have presented the Court with a thoro ghly-prepared record, which includes copies of survey maps, photographs, and documents I in the chain of title. He has also submitted a report prepar~d by John H. Sciarabba, L.S., in which Mr. Sciarabba states his opinion bs to the location of the "90 foot line", with what hei terms "a reasonable degJj e of professional j certainty." However, the Defendants have also submitted expe . opinion in the form of a report prepared by David N. Zacharias, L.S. , in w ich he challenges the methodology and conclusions of Mr. Sciara ba. In response, counsel for the Plaintiffs has submitted an affidavit in whic he rejects the report of Mr. Zacharias as flawed. It is axiomatic that a motion for summary judgment srould be granted only if the evidence presented by the moving party demonJtrates that there is no genuine issue as to any material fact and that the mor ant is entitled to judgment as a matter of law (see, e.g. Zuckerman v City o~New York, 49 NY2d 557 (1980)). When the parties present conflicting e pert opinions which create material issues of fact, the Courts have consistently held that -4- [* 5] the issues of credibility and weight must be left for determination by the trier of fact. (see, e.g. Fonseca v Cronk, 104 AD3d 1154 (4th Dept, 2013); Pittman v Rickard, 295 AD2d 1003 (4th Dept, 2002)). Such is the case here. Moreover, counsel for the Defendants correctly argl es that, in the interest of "free and unencumbered use of real property", restrictive covenants have traditionally been strictly construed as against a party seeking to enforce them (see Ludwig v Chautauqua Shores Improvement Ass'n, 5 AD3d 11 19 (4th Dept, 2004), Iv to appeal den'd 3NY3d 601 (2004)). In order to enforce such a covenant, a party "must prove by clear and convincing evidence, the scope, as well as the existence of the restriction ." (Greek Peak v Grodner, 155 AD2d 827 (3rd Dept, 1989),-lffd 75 NY2d 981 (1990)). Again, this court must conclude that such a det~rmination in these circumstances must be reached after trial. Therefore, the Plaintiffs' motion for summary judgment is denied, except that the Defendants' first affirmative defense (failul e to state a cause of action) and fourth affirmative defense (unclean hands) are dismissed. This decision is without prejudice to the Plaintiffs' right to enew their motions at the time of trial. This Court also concludes thalt the Plaintiffs have not been prejudiced by any delay on the part of the Defendants in responding to the Plaintiffs' demand for expert witness infbrmation, and -5- [* 6] therefore the Plaintiffs' motion for an Order precluding the submission of expert testimony at trial by the Defendants is denied. This Decision constitutes the Order of the Court~. _ Dated: January 6, 2016 Lyons, New York (i~ ~ ,\ ' I ' I 1 \ ~----~~~~--+---=-~~ 7 Honorable Dennis M. Kehoe Acting Supreme Court Justice -6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
