Fiore v Fabozzi

[*1] Fiore v Fabozzi 2017 NY Slip Op 51081(U) Decided on September 1, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 1, 2017
Supreme Court, Richmond County

Glenn Fiore and Theresa Fiore, Petitioners,

against

Paul Fabozzi, Respondent.



80189/2016
Philip G. Minardo, J.

Petitioners Glenn and Theresa Fiore brought this action to enjoin respondent from continuing construction in his rear yard in alleged violation of a restrictive covenant in the deed for his adjoining residence at 1347 Huguenot Avenue, Staten Island New York.

Petitioners Glenn and Theresa Fiore reside at 1341 Huguenot Avenue, Staten Island, New York. Petitioners, through the ownership in Glenro Realty Corp. ("Glenro"), held the property located at 1347 Huguenot Avenue. On January 16, 2003, petitioners, through Glenro, sold the residence at 1347 Huguenot Avenue to respondent. In the deed, signed by Glenn Fiore, petitioners added the following handwritten language to the bottom of page 1:

"Restrictive Covenant- No additions or alterations above one story or 17.00 feet to the top of roof of any structure as measured from the existing basement floor elevation shall be made to any part of the subject premises, located at 1347 Huguenot Avenue, Staten Island, New York. This Restrictive Covenant shall remain in effect as long as Glenn Fiore or Theresa Fiore maintain 1341 Huguenot Ave, Staten Island, NY as their primary residence."

(the "Restrictive Covenant")

The handwritten Restrictive Covenant bore the handwritten initials "PF" on the left margin representing respondent Paul Fabozzi's acknowledgment.

On or about July 11, 2016, a contractor began work in the rear yard of 1347 Huguenot Avenue. It appeared that respondent was adding a structure to the rear of his home which appeared to be an attached room or gazebo. Petitioners then marked a line on their fence that they alleged was the Restrictive Covenant's maximum height. Petitioners then informed the contractor working on respondent's home that the work appeared to violate the Restrictive Covenant. Petitioners also told respondent of the alleged violation. Respondent continued to perform work in the rear yard on the gazebo structure and chimney.

To enforce the covenant, petitioners then filed this action seeking a directive for the New York City Department of Buildings to issue a stop work order and a directive that respondent comply with the Restrictive Covenant.

Respondent answered and opposed the Order to Show Cause, alleging that the Restrictive Covenant was not enforceable, and alleging three counterclaims for encroachment on his property by petitioners' retaining wall, abuse of process and intentional infliction of emotional distress.

After review of the motion and accompanying papers, this Court held two hearings on the matter allowing the parties to present testimony regarding the issue of the Restrictive Covenant enforceability and the alleged violation.

After review of the papers, and having heard the testimony, the Court hereby finds that the action is timely under RPAPL 2001, since it was brought prior to the completion of the alleged structures.

Further, based on the papers and testimony, the Court considered the enforceability of the Restrictive Covenant and the alleged violation.

This Court must first examine whether respondent agreed to the Restrictive Covenant. In his testimony and his May 31, 2017 affidavit, respondent Paul Fabozzi, admitted that at the closing he was presented with the Restrictive Covenant, handwritten into the deed. He admitted that the handwritten language "specifically state[d] no 'addition' or 'alteration,' and he understood that the Restrictive Covenant meant "no additions or alterations to the Premises." He further testified that he believed the "gazebo" or "covered porch," as he identified the backyard structure, was not an addition or alteration under the building code. In his testimony and affidavit, respondent stated he understood that petitioners "did not want any new structure obstructing their view from their second floor." Respondent did not believe, however, that his structures obscured their view. Therefore, respondent was aware and agreed to the Restrictive Covenant and its intent.

Case law is clear that "[r]estrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy." Forest Hills Gardens Corp. v. 150 Greenway Terrace, LLC 37 AD3d at 759, 830 N.Y.S.2d 581 (2 Dept. 2007), Chambers v. Old Stone Hill Rd. Assoc., 1 NY3d 424, 431, 774 N.Y.S.2d 866, 806 N.E.2d 979 (2004).

Under RPAPL 1951(2), a court may extinguish a restriction if "the restriction is of no actual and substantial benefit to the person seeking its enforcement or seeking a declaration or determination as to its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment." The court may declare the restrictive covenant unenforceable when "balancing of equities, the restrictive covenant is of no actual and substantial benefit." Deak v. Heathcote Association, 191 AD2d 671, 595 N.Y.S.2d 556 (2d Dept. 1993). The burden is borne by the party seeking to extinguish the covenant and must show the "(1) lack of benefit derived from enforcement of the restriction, and (2) legally cognizable reason for the extinguishment of the restriction under RPAPL 1951, such as changed conditions which render the purpose of the restriction incapable of being accomplished." Id.; Orange & Rockland Utilities v. Philwold Estates, 52 NY2d 253, 437 N.Y.S.2d 291, 418 N.E.2d 1310(1981).

Petitioners testified and submitted affidavits that the Restrictive Covenant herein was [*2]intended to maintain the petitioners' view of the ocean by restricting any alteration or addition to the neighboring home over a certain height. This limitation was reasonable and understood by respondent, as so testified to at the hearing and in his submitted affidavit. This restriction does not offend public policy and may be accomplished.

Respondent has not carried its burden to show the Restrictive Covenant is not enforceable or extinguishable. Respondent testified to understanding the purpose of the restriction, and the defined limits. He defended the litigation by asserting that the basement is a cellar, and thus the Restrictive Covenant may not use the area as a benchmark to measure the height of any addition or alteration. He further argues, as examined infra, that his structures may not be subject to the Restrictive Covenant. Respondent did not otherwise produce evidence that the Restrictive Covenant is unattainable, or that no benefit would be achieved by its enforcement. Therefore, the Restrictive Covenant is enforceable, and this Court then turns to defining its limits.

The Restrictive Covenant does however have limitations which must be defined. The first inquiry is what is an alteration or addition, and then how is the height limit defined - to one story or 17.00 feet, or the lesser of the two.

Proceeding to defining an addition or alteration, the court first turns to the common usage of the terms and whether the gazebo or chimney fit within either definition. Thus, the Merriam-Webster dictionary defines an addition as a "a part added (as to a building or residential section)" and an alteration as "the result of changing or altering something." See https://www.merriam- webster.com/dictionary/addition; https://www.merriam-webster.com/dictionary/ alteration.

Respondent argues that §27-232 of the Building Code of the City of New York defines these terms as follows: addition- "An extension or increase in floor area or height of a building that increases its exterior dimensions;" and alteration — "Any addition, or change in modification of a building, or the service equipment thereof, that affects safety or health and that is not classified as a minor alteration or ordinary repair. The moving of a building from one location or position to another shall be deemed an alteration."

Respondent has identified the structure in the backyard as a "covered porch" or "gazebo" that would not be enclosed and without enclosure, it is merely a porch. Respondent explained, through his architect, Lawrence Mandarino, that as a porch, therefore, it does not meet the definition of "Addition" within the Building Code since it does not increase the floor area of the residence. Affidavit of Lawrence Mandarino, dated May 8, 2017. As such, respondent argues that the gazebo or covered porch, and chimney do not fit within the restrictions set forth in the Restrictive Covenant.

It is relatively clear to this Court that the "gazebo" type structure and the extended chimney, not existing prior to 2016 are additions and/or alterations to the residence. The "gazebo" is a substantial structure with a floor, and large scalloped roof that is attached to the residence, and appears to have been intended as a sun room. There were no plans on file with building department prior to the start of construction to confirm the exact type of room intended. However, the plans filed after the litigation was commenced does envision an open structure.

Although the "gazebo" type structure may not increase the floor area, it changes the exterior dimensions of the residence in a permanent fashion since it is attached to the residence, as does the chimney. Moreover, the "gazebo" or "covered porch" could at any point be enclosed, and once enclosed, it would extend the floor area of the residence. Thus, the chimney and "gazebo" or "covered porch" are additions and if not they are alterations in that they are more than a "minor alteration or ordinary repair" to the residence under the building code.

The final inquiry is whether these additions or alterations exceed 17.00 feet or one story, as outlined by the Restrictive Covenant. Petitioners argue that the 17.00-foot limit is violated by both structures in that the height is measured from the existing basement floor. Respondent counterargues that the basement at 1347 Huguenot Avenue is more appropriately defined as a cellar under the NYC Building Code §27-232 and as such, not proper for measurement of the Restrictive Covenant height. This argument is not persuasive in that respondent testified that he understood the meaning of the covenant and whether the lower level of the residence is considered a basement or cellar, he understood that the Restrictive Covenant sought that floor as the basis for measurement.

Additionally, respondent argues that even if it is considered a basement, the restriction is not enough to allow any extension to the residence under the New York City Building Code since it would limit the height of the next story to a five-foot celling. This argument is unavailing, since if the Restrictive Covenant was read as a sole limit of 17.00 feet, the Restrictive Covenant would simply limit any addition to the residence with an upper portion about the 17.00-foot limit.

However, the Restrictive Covenant cites a limit of "one story or 17.00 feet." The NYC Building Code § 27-232 defines one story as "[t]hat portion of a building that is between a floor level and the next higher floor level or roof above."

The chimney, whichever ever way it is argued, violated the Restrictive Covenant. The chimney is clearly an addition or alteration to the existing residence and extends above the roof of the residence, whether that limit is one story or 17.00 feet. Respondent has argued that the change in chimney height was necessary when respondent replaced the fireplace in the basement. However, the counter argument wins, in that, respondent did not have to replace the fireplace, and no new regulations required the chimney extension. Petitioner correctly argues that if the Restrictive Covenant is enforceable, and such Restrictive Covenant restricts the height of an extension to a height which violated the Building Code, then the extension is not permitted.

The "gazebo" or "covered porch" is not as clear. As measured from the floor of the basement (or cellar), this structure is above 17.00 feet. However, it is less that one story.

The testimony and submitted papers show that both parties were aware of the presence of the Restrictive Covenant, its intent and general application. However, the application of Restrictive Covenant lent itself to two different interpretations. This Court finds that the Restrictive Covenant did restrict the addition or alteration of the residence which was either "one story or 17.00 feet to the top of roof of any part of any structure", whichever limit was greater. Therefore, the structure or gazebo under construction in respondent's rear yard is no greater than one story and permitted under the Restrictive Covenant, despite its possible height above the [*3]17.00-foot marker.

As such, it is accordingly

ORDERED, that petitioner's Order to Show Cause is granted to the extent that the Restrictive Covenant is read as: No additions or alterations above the greater of one story or 17.00 feet to the top of roof of any structure as measured from the existing basement floor elevation shall be made to any part of the subject premises, located at 1347 Huguenot Avenue, Staten Island, New York; and it is further

ORDERED, that petitioners are granted a permanent injunction prohibiting respondent from continuing construction in violation of the Restrictive Covenant, as interpreted by this Court; and it is further

ORDERED, that the chimney erected in violation of the Restrictive Covenant be removed; and it is further

ORDERED, that the Clerk of the Court enter judgment in accordance herein, and it is further

ORDERED, that the parties shall appear for a conference on October 19, 2017 at 11:00 a.m. on any remaining claims or counterclaims.

Dated: 9/1/17

/s/ Philip G. Minardo

Hon. Philip G. Minardo, J.S.C