Posted by: Patricia Salkin | January 27, 2008

NY Appeals Court Holds Laches Barred Neighbors’ Request for Permanent Injunction for Maintenance of a Boathouse Already Built

Neighbors or adjacent property owners who desire to challenge a decision resulting in a building permit need to be mindful of timing. Once an approval has been granted, to best preserve any rights to an appeal, plaintiffs should immediately seek an injunction which would prevent the applicant from beginning or continuing construction pending the outcome of the appeal (or the applicant continues at his or her own peril). However, plaintiffs who wish to seek injunctive relief, must do so timely or else equitable principles of law may prevent their appeal. Such was the situation in Saratoga Springs, New York where the adjacent property owner waited too long to seek an injunction and to file a challenge to a permit issued for the construction of a boathouse on neighboring land.

Residents of a planned unit development purchased their property subject to filed “Covenants and Declarations of Restrictions” as well as the bylaws of the Homeowners Association. At an open meeting of the Association’s Board of Directors, the defendants, owners of a waterfront parcel, applied for permission to build a boat house on their property. Neither the applicable covenants and restrictions, nor the bylaws specifically allowed or prohibited this use, so the Association indicated it would contact the developer about amending the covenants and restrictions to specifically allow for the use. There were no objections raised by the homeowners present at the meeting, and the developer subsequently did amend the covenants and restrictions to allow boathouses. Following this amendment, the City of Saratoga Springs issued a building permit and defendants began construction in May 2005. The adjacent property owners indicated they first noticed work being done in June 2005, and subsequently retained legal counsel at the end of August 2005 when the boathouse appeared to be completed. It was not until November 2005 when the plaintiffs commenced the present action for a permanent injunction restraining the defendants from “erecting and/or maintaining” a boathouse, and seeking money damages for nuisance, claiming that the boathouse was erected in violation of the covenants and restrictions alleging that the developer lacked authority to issue the amendment.

The appeals court concurred with the trial court that the equitable doctrine of laches bars plaintiffs’ request for a permanent injunction, regardless of whether the amendment was improper. The court noted that during the July 2004 open meeting of the Homeowners Association Board, all homeowners in the development were given notice of the defendants’ intention to build the boathouse. Further, the plaintiffs admitted that they observed the construction commence In June 2005, yet they did not seek an injunction at that time, waiting until after the construction was completed. The Court also noted that the defendants were unaware that the plaintiffs intended to file for an injunction since they never received an objection or complaint from the plaintiffs prior to or during the construction. The defendants also showed that they would be damaged if forced to tear down the boathouse after having spent $125,000 for its construction. 

Bailey v. Chernoff, 846 N.Y.S.2d 462 (A.D. 3rd 11/21/2007). 

The opinion can also be accessed at:

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s


%d bloggers like this: