Ward Coschignano, PLLC, Uniondale, NY (Jon A. Ward of
counsel), for appellants.
Nostrand & Martin, Amityville, NY (David S. Desmond of
counsel), for respondents.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, HECTOR D.
LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action for a judgment declaring that a certain indenture
dated October 26, 2012, and an agreement dated December 21,
2012, are null and void, and for injunctive relief, the
plaintiffs appeal from so much of an order of the Supreme
Court, Suffolk County (Pastoressa, J.), dated September 3,
2015, as granted those branches of the defendants' motion
which were pursuant to CPLR 3211(a), in effect, to dismiss
the first three causes of action in the amended complaint,
and to dismiss the fourth cause of action in the amended
complaint insofar as asserted against the defendant John
Maloney and insofar as it alleged violations of Code of the
Town of Islip § 68-48(A).
that the order is affirmed insofar as appealed from, with
Supreme Court properly granted those branches of the
defendants' motion which were pursuant to CPLR 3211(a)(1)
and (3), in effect, to dismiss the first and second causes of
action in the amended complaint for a declaratory judgment,
as the defendants have a meritorious defense founded upon
documentary evidence that the plaintiffs lack standing to
bring these causes of action. In these causes of action, the
plaintiffs seek to declare null and void an indenture dated
October 26, 2012 (hereinafter the 2012 indenture), and an
agreement dated December 21, 2012 (hereinafter the 2012
agreement). Pursuant to the 2012 indenture, the defendant
Ackerson Agency, Inc. (hereinafter Ackerson), purported to
transfer to the defendant South Shore Estate Sales, Inc.
(hereinafter South Shore), inter alia, the right to enforce
restrictive covenants against real property owned by the
defendants Donald P. Del Duca and Donald Del Duca
(hereinafter together the Del Duca defendants) on Manatuck
Lane in Bay Shore. In the 2012 agreement, the Del Duca
defendants and South Shore, agreed to amend some of the
restrictive covenants. The plaintiffs claim that they have
the right to enforce the restrictive covenants pursuant to a
1986 indenture from Ackerson (hereinafter the 1986
doctrine of collateral estoppel bars relitigation of the
issue of the individual plaintiffs' standing to bring the
first two causes of action. The issue of the plaintiff Sandra
Wheeler's standing to enforce the restrictive covenants
was raised and decided against her on the merits in a
separate action (see Wheeler v Del Duca,
___A.D.3d___ [decided herewith]). The
individual plaintiffs are in privity with Sandra Wheeler, and
they had a full and fair opportunity to litigate the issue in
the prior action (see FC Notes SVC, LLC v United Gen.
Tit. Ins. Co., 146 A.D.3d 935; Clifford v County of
Rockland, 140 A.D.3d 1108, 1109).
plaintiff O'Co-Nee Association, Inc. (hereinafter
O'Co-Nee), lacks standing to challenge the 2012 indenture
and the 2012 agreement or to enforce the restrictive
covenants. The 1986 indenture did not grant O'Co-Nee the
right to enforce the restrictive covenants. The language of
the 2012 indenture and the 2012 agreement is unambiguous,
and, therefore, extrinsic evidence cannot be considered
(see Brad H. v City of New York, 17 N.Y.3d 180, 185;
Scotto v Georgoulis, 89 A.D.3d 717, 718). None of
the plaintiffs was intended to be third-party beneficiaries
of the restrictive covenants. The language in the deed from
the original grantor indicates that the restrictive covenants
were not imposed for the benefit of the owner of neighboring
land (cf. Nature Conservancy v Congel, 253 A.D.2d
248, 251; Zamiarski v Kozial, 18 A.D.2d 297, 299).
Furthermore, the restrictive covenants were not part of a
common development scheme created for the benefit of all
property owners within the O'Co-Nee development (cf.
Fader v Taconic Tract Dev., LLC, 128 A.D.3d 887;
Hidalgo v 4-34-68, Inc., 117 A.D.3d 798, 800;
Dever v DeVito, 84 A.D.3d 1539, 1540).
Supreme Court properly directed dismissal of the third and
fourth causes of action in the amended complaint pursuant to
CPLR 3211(a)(7) insofar as they alleged a violation of Code
of the Town of Islip § 68-48(A). That section applies to
accessory uses, and Code of the Town of Islip §
68-48(A)(1)(c) in particular applies to residential docks.
However, the amended complaint contains no allegations of any
residential use of the Del Duca defendants' property, and
alleges only that the property is being used as a marina.
Therefore, the accessory use provision is inapplicable.
Supreme Court properly directed dismissal of all causes of
action insofar as asserted against the defendant John Maloney
pursuant to CPLR 3211(a)(7), as the plaintiffs failed to
state a cause of action against him (see Leon v
Martinez, 84 N.Y.2d 83, 87).
plaintiffs' remaining contentions are without merit.
RIVERA, J.P., HALL, LASALLE and ...