Canfield v 290 Powers Group LLC

Annotate this Case

Download PDF

Canfield v 290 Powers Group LLC 2018 NY Slip Op 32953(U) November 20, 2018 Supreme Court, Kings County Docket Number: 505797/18 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*[FILED: 1] KINGS COUNTY CLERK 11/26/2018 02:30 INDEX NO. 505797/2018 P~ NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 11/26/2018 I ru\,1 ~'f'JJ <' ..J SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL 8 c· t1 l 'r T\/ C' 1 i: r'"~·,r.<, J-...; 1 1 l..1 ~ ...~ • flLED ~ 2018 NOV 26 AM 7: 3~ . ------------------------------------------x LEWIS CANFIELD, I Plaintiff, Decision and order - against - Index No. 505797All8 t("'_r ~~ &3 .f ,. /•'' i-. 290 POWERS GROUP LLC & SHAI BIRENZWEIG, Defendants, I November 20, 2018 ------------------------------------------x PRESENT: HON. LEON RUCHELSMAN :l The plaintiff has moved seeking leave to file answer and to defendants. cancel The the defendants Notice have of Pendency cross-moved filed a late by seeking to tlhe amend the complaint and to add additional parties. The motions hifve been will substantively opposed respectively as I be noted. Papers were submitted by the parties and arguments held. Afjer reviewing all the arguments this court now makes the following determination. ~ As recorded in a prior decision, the plaintiff is the owner of property loc7ted at 288 Powers Street in Kings County. lhe defendants are developers and builders of a condominium loca ed next door at 290 Powers Street. entered access into to the an agreement plaintiff's On April }9~ < 2016 the par~1· es 1 wherein the property to defendant extend t chimney and to protect it during construction. the was gran ed plaintiff's I A dispute arose concerning the precise reach of the agreement and in the prior . ~~ ..;. j 1 of 4 [*[FILED: 2] KINGS COUNTY CLERK 11/26/2018 02:30 INDEX NO. 505797/2018._ P~ NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 11/26/2018 t order the .•• court denied The injunction. the defendant portion of plaintiff's request has now moved seeking the motion not is seeking an serve an to answer. That opposed granted. Likewise, the plaintiff has cross-moved seeking to I and is ~dd parties and that request is likewise granted. . Concerning ------. . Notice of the defendant's Pendency the motion defendant cancel ~he essentially the seeking argues to that I plaintiff does not present any allegation it has any claim of 1 title to the defendant covenant defendant's counters that runs property (see, CPLR §6501). ' .1 a ff irmative that the agreement created an with the land will reflected and be The upon j subsequent ~·. ~ condominium owners and hence affects the land and consequently the Notice of Pendency is proper. An affirmative covenant is an agreement whereby covenantor, the defendant herein, agrees that something shall be done. It is wel{' settled a distinguished fro~ a to do an affirmative act, covenant merely negative not run with the land Queens County Ry. ,,c!~enant (Guaranty Trust Co. Co., 253 NY 190, be demonstrated that intended such a ( 1) result a~ effect, of N.Y. v. New York & 170 NE 887 there are exceptions to this general rule. in j [1930]). However, Thus, where it ., ~an the original covenantor and covenantee there (2) has been a continuous f) succession of conveyances between 2 2 of 4 the original covenantor and [*[FILED: 3] KINGS COUNTY CLERK 11z26z201a 02:30 I. NYSCEF DQC. NO. 94 RECEIVED NYSCEF: 11/26/2018 ·,.:,.'t~"j;. ·;.:...,;, .:"·'-t> - the party now sought to be burdened and (3) or concerns affirmative the land is to covenant will Broadway Realty Corp., It true Agreement' INDEX NO. 505797/2018 PM] that a substantial run with the 7 NY2d 240, the the covenant toucJes 'Limited degree, then (Nicholson v. land 196 NYS2d 945 [1959]). Non-Exclusive License and states that the developer defendant "will perform work and protection associated with extending Adjacent ~11 Owner's ·~ chimney ... and will maintain the chimney extension in perpetuif y and shall require that any subsequent owner of the Project Si~e comply thit with agreement this does agreement requirement" not only affect affects (id the the at §3 (a)) . defendant's However, land plaintiff's at land. all. The Thus, this 1. ···~·- covenant does not degree" (id) . defendant In in any obligations however, upon those obligations "touch or concern the are Philadelphia v. fact, it manner. the are not Rather, developer mere not does and monetary affirmative land to a touch this any land the agreement subsequent obligations covenants FortisUS Energy Corp., substantitl · :,/,.. (see, of t e · impos~s I owners, , and such Village .J.•. ·-~51 48 AD.3d 119• ·~- I of NYSr 7 8 0 [4th Dept . , 2 0 0 8] ) . Nor does New York City Administrative Code §27-860 demand ,, contrary result. That provision imposes obligatio~s I concerning the protection of chimneys of neighboring I· propert~. 3 --._ '---~--~-.:-..:,\.·,,.__ - 3 of 4 [*[FILED: 4] KINGS COUNTY CLERK 11/26/2018 02:30 . INDEX NO. 505797/2018 P~ NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 11/26/2018 '!, Again, while the obligation might exist, it surely cannot be deemed an affirmative covenant. Therefore, based on the foregoing, the motion seeking to cancel the Notice of Pendency is granted. l !c J The motion seeking sanction is denied at this time. ,,. ·. So ordered. ENTER: : "{~,, -~. t DATED: November 20, 2018 Brooklyn N.Y. Hon. Leon Ruchelsman JSC ·-s .~ a:> f. l I_-· < - ro 0\ ! :& ' ':JS ,, ·; ~ : ::;. I 4 -. 4 of 4 ;\ ·. .....

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.