Posted by: Patricia Salkin | June 7, 2011

NY Appellate Court Addresses Violations of Restrictive Covenants Resulting from Planting of 54 Trees Along Boundary Line

Plaintiffs appeal from dismissal of causes of action that sought judgment against defendants who planted a row of trees on defendants’ property allegedly in violation of restrictive covenants.  Plaintiffs stated numerous causes of action.  The Second Department addressed each one in turn on appeal, affirming in part and reversing in part the judgments of the lower court. The court held that the lower court erred in dismissing the first, fourth, and ninth causes of action but correctly dismissed the remaining claims.  The first cause of action alleged that defendants violated a restrictive covenant barring them from erecting on their property any hedge over five feet tall by planting 54 trees in a dense linear formation along the boundary between plaintiffs’ and defendants’ property that have since grown to between 15-20 feet.  The fourth alleged private nuisance which the court held to be adequately pleaded, and the ninth alleged a violation of the Sleepy Hollow Village Code §41A-2(F).  This section of the Sleepy Hollow Village Code required that shrubs and hedges be kept trimmed and pruned and so plaintiffs adequately presented a cause of action for a violation of that section.  

The claims that were properly dismissed included claims that the trees violated certain covenants against fences, dismissed because a line of trees could not reasonably be construed as a “fence” within the meanings of these covenants.  Plaintiffs also pled tort claims, that trees constituted a “noxious, noise, dangerous or offensive” use in violation of a restrictive covenant, and that defendants willfully allowed their trees to overgrow constituting a trespass.  These claims were appropriately dismissed. 

Ford v. Fink, 2011 WL 1730950 (N.Y.A.D. 2 Dept., 5/3/11) 

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2011/D31136.pdf


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