Plaintiff originally brought an action against defendants who had purchased an adjoining property in between plaintiff’s property and Lake Placid. Defendants planned to build a home on the property which plaintiff had concerns about in terms of the house obstructing her view of the lake. Plaintiff brought an action to enjoin defendants from building their home as well as sought money damages, so defendants hired a different architect to design a smaller home (hereinafter “replacement home”) to be built on their property. Plaintiff persisted with litigation but dropped her claim for money damages.
After defendants began construction of their replacement home plaintiff moved to amend her complaint for a second time to reassert claim for damages and add necessary parties. The court held that the motion to amend was properly granted because defendants themselves brought up the issue of additional parties and plaintiff had adequately provided evidentiary support for her money damages claim. The court also stated that the defendants would not be surprised by amending the complaint in this regard because the amended complaint rested on the same factual circumstances as the original complaint and the original complaint included money damages.
However, the court found that plaintiff’s claim for injunctive relief was moot because when relief was denied, plaintiff did not seek a stay in this court, withdrew her appeal and thereafter failed to pursue additional legal relief to prevent further construction of defendants’ replacement home. During that time defendants’ home was completed and they moved into their new residence. It would impose an undue hardship and be substantially prejudicial to defendants to require them to undo the work done as required by the injunctive relief plaintiff seeks. The court further supported their decision based on the fact that defendants did not begin construction of their replacement home for a year and a half after this litigation began and there was no evidence that construction was rushed to deny plaintiff of her rights or otherwise done in bad faith.
On the merits, the court found that although defendants’ replacement home did not invoke application of any restrictive covenants, their boathouse did. Specifically, article II, Section 4 of the Declaration of Covenants prohibits additional buildings with the exception of certain garages, docks or utility buildings, and the court held that a fact question existed as to whether this covenant applied to the erection of a boathouse.
Dever v. DeVito, 2011 WL 1797235 (N.Y.A.D. 3 Dept., 5/12/11)
The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/Decisions/2011/510581.pdf
