Upon reading the foregoing papers it is

ORDERED the motion is granted to the extent that the first and second causes of action are dismissed, and in all other respects the motion is denied; and it is further

ORDERED the parties are directed to appear on May 14, 2019, at 9:15 a.m. in the Settlement Conference Part, Courtroom 1600, Westchester County Supreme Court, 111 Dr. Martin Luther King Jr. Boulevard, White Plains, New York, prepared to conduct a settlement conference.

Plaintiff seeks to construct a 45-unit apartment building in the Edgemont section of the Town of Greenburgh. The Town of Greenburgh Planning Board gave site plan approval to plaintiff's project in 2016. However, plaintiff's property is subject to a restrictive covenant which prohibits the construction of a "tenement house or flat house so-called" on the premises. Plaintiff [*2]commenced this action seeking an order extinguishing the covenant or declaring it unenforceable.

Plaintiff acquired its property in 2006. It traces its title to the subdivision of the Gerard Fountain farm beginning in 1910. The 45-acre farm was subdivided into ten lots. Lots 1, 2, 3 and 4 front Central Avenue. From north to south on Central Avenue, Lot 1 consists of approximately 5.5 acres and Lots 2, 3 and 4 consist of approximately one acre each. The remaining lots front Dromore Road which runs east from Central Avenue between Lot 1 and Lot 2 and continues to the rear of the original Fountain farm. To the east of Lot 1 and to the north of Dromore Road is Lot 7 consisting of approximately 20.5 acres. To the east of Lots 2, 3 and 4 and to the south of Dromore Road is Lot 5 consisting of approximately 2.3 acres. At some point in time the lot line separating Lots 2, 3 and 4 from Lot 5 was moved slightly to the east. To the east of Lot 5 and to the south of Dromore Road is Lot 6 consisting of 6.5 acres. Dromore Road runs east until it meets a T-intersection and the road then runs to the north and to the south. On the eastern side of this portion of Dromore Road lie Lots 8, 9 and 10, each containing approximately 2.5 acres.

Lot 1 (5.5 acres) is presently owned by Dilstan Realty and is improved with a commercial building. Lots 2, 3 and 4 (with the lot line adjusted) (3 acres) is presently owned by Scarsdale Woods and is improved by a multi-unit condominium. Lot 5 (2.3 acres) is owned by the plaintiff. Lot 6 (6.5 acres) is owned by Sisters of the Blessed Sacrament and is improved by a residence which the Sisters use as their convent. Lot 7 (20.5 acres) is owned by Greenburgh Nature Center and is part of a 33-acre nature preserve and environmental education center. This parcel is improved by a residence known as the Manor House and a caretaker's cottage. The Manor House is used for offices, meetings and educational displays. Lots 8, 9 and 10 (7.5 acres total) are owned by the Edgemont School District and are undeveloped. The lots owned by Edgemont School District are part of a larger parcel owned by the District. The larger parcel is improved by a junior/senior high school, but no part of the improved school grounds occupy Lot 8, 9 or 10.

When plaintiff acquired Lot 5 in 2006 it was improved with a residence which plaintiff tore down. Plaintiff originally intended to subdivide the property into lots for residences but then it learned that the property was located in a commercial zone on the Town of Greenburgh's zoning map. Plaintiff changed its plans and announced its intent to construct an apartment building on the premises. Others in the community believed the zoning map was in error and plaintiff's property was located in a residential zone. Litigation ensued to answer the question whether plaintiff's property was located in a commercial zone where apartments are permitted or in a residential zone where apartments are banned. In 2012 the court (Loehr, J.) ruled the plaintiff's property was located in a commercial zone which permitted apartment buildings.

In 2013 an issue surrounding restrictive covenants encumbering the subdivided lots surfaced. The restrictive covenant in question provides in part "no tenement house or flat house so-called, livery stable, saloon or factory shall be erected thereon, nor shall any building be erected thereon to be used for the purpose of any business whatsoever." Thus, a covenant in each of the deeds to the original ten subdivided lots restricted development of the lots to single-family dwellings or to non-commercial uses.

After the zoning issue was resolved plaintiff continued to seek approval for its project [*3]from the Town of Greenburgh Planning Board. In 2016 the Town of Greenburgh Planning Board granted approval for the construction of a four-story 45-unit apartment building. However, plaintiff feared that owners of other lots in the subdivision would seek to enjoin construction by seeking to enforce the restrictive covenant. Thus, plaintiff commenced this action seeking to extinguish the restrictive covenant or to declare it unenforceable.^[FN1]

The complaint asserts five causes of action. The first seeks judgment declaring the restrictive covenant void because the covenant does not run with the land. The second seeks judgment declaring the covenant unenforceable due to subsequent releases. The third seeks judgment declaring that an apartment building is not within the meaning of tenement or flat house as used in the restrictive covenant. The third cause of action was dismissed by prior order on a motion to dismiss the complaint. The fourth seeks a permanent injunction enjoining enforcement of the restrictive covenant. The fifth seeks judgment declaring the covenant to be extinguished pursuant to Real Property Actions and Proceedings Law §1951.

Following completion of discovery the defendant, Sisters of the Blessed Sacrament, move for an order granting summary judgment dismissing the complaint against it.

First Cause of Action - Covenant Does Not Run With the Land

Defendant established as a matter of law that the restrictive covenant runs with the land by demonstrating that the original grantor intended the covenant to run with the land, that the covenant touches and concerns the land and there is privity of estate between the grantor and the defendant (Kew Forest Neighborhood Ass'n. v Lieberman, 306 AD2d 443 [2d Dept 2003]). In opposition, plaintiff argues that there was no intent because the deeds to Lot 5 and Lot 6 do not recite that the covenant shall run with the land. However, all other deeds in the subdivision do contain such language and the deeds to Lot 5 and Lot 6 recite that the grantor and grantee agree for themselves and their heirs to be bound by the restrictive covenant. In addition, the deed recites that the property is Lot 5 on a subdivision map to be filed, and that such a map was eventually filed. Thus, the Sisters demonstrated the original parties to the deeds intended that the covenant was to run with the land.

In opposition, plaintiff failed to raise a triable issue of fact.

While the owners of Lots 1, 2, 3 and 4, which all front on Central Avenue, have been released from the restrictive covenant by recorded releases, plaintiff's property was not the subject of those releases. Thus, the recorded releases do not release plaintiff's property from the restrictive covenant. However, those releases may be relevant in determining whether the restrictive covenant should be extinguished by operation of RPAPL 1951which will be discussed below.

The Fourth Cause of Action - Injunction

The papers submitted raise a triable issue of fact whether the defendants waived their right to enforce the restrictive covenant by violating or consenting to others violating the [*4]restrictive covenant.

Plaintiff's fifth cause of action seeks an order extinguishing the restrictive covenant pursuant to RPAPL 1951.

"RPAPL 1951 (2) provides that a court may extinguish a restriction if 'the restriction is of no actual and substantial benefit to the person seeking its enforcement or seeking a declaration or determination as to its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment.' The issue in determining whether a restrictive covenant is unenforceable is not whether the party seeking the enforcement of the restriction obtains any benefit, but whether, in a balancing of equities, the restrictive covenant is of no actual and substantial benefit. The party claiming unenforceability of a restriction bears the burden of proving unenforceability. Thus, the party seeking the extinguishment of the restriction must prove (1) lack of benefit derived from enforcement of the restriction, and (2) legally cognizable reason for the extinguishment of the restriction under RPAPL 1951, such as changed conditions which render the purpose of the restriction incapable of being accomplished" (Deak v Heathcote Ass'n, 191 AD2d 671, 672 [2d Dept 1993]).

The papers submitted raise triable issues of fact whether the defendant, the Sisters of the Blessed Sacrament, is entitled to judgment dismissing the cause of action seeking an order extinguishing the restrictive covenant pursuant to RPAPL 1951.

The Sisters argue that they benefit from the enforcement of the covenant. They claim that the residential and rural nature of the area surrounding their property plays an integral part in fulfilling the purposes of the monastic, prayerful and contemplative life required of them as members of the Sisters of the Blessed Sacrament. They further argue that the residential and rural nature was present when they purchased the property more than twenty years ago and that the residential and rural nature continues to this day. Ever since the Sisters purchased the property it has been surrounded by the forested acres of the Greenburgh Nature Center, by the undeveloped property owned by the Edgemont School District and by plaintiff's vacant lot which was once improved with a residence. The Sisters claim they do not hear nor are they affected by noise or traffic from Central Avenue. Thus, the Sisters assert that the purpose of the restriction is still capable of being accomplished.

In opposition, plaintiff argues that the character of the area surrounding the subdivision has changed to such a degree that the restrictive covenant is of no actual and substantial benefit to the defendants. Plaintiff claims that the benefit of maintaining the area as residential and rural can no longer be realized due to changes in the area. Plaintiff focuses on the four lots of the subdivision which front Central Avenue. Plaintiff claims that Central Avenue has evolved into a major commercial corridor in the Town of Greenburgh, and that the commercial development includes the four lots of the original subdivision which front Central Avenue. Plaintiff also points out that the four lots fronting on Central Avenue were released from the restrictive covenants by releases, including one from the Sisters' predecessor in title, recorded in the 1970s, and that Lots 2, 3 and 4 are now improved with a condominium project and Lot 1 is improved [*5]with a commercial building. Plaintiff also argues that the Greenburgh Nature Center, while a not-for-profit organization, operates a busy education center which welcomes thousands of visitors each year, with school buses delivering children to the various programs offered and with adults attending programs such as wine and beer tastings. In addition, plaintiff argues that the Edgemont Junior/Senior High School campus, with more than 800 students, borders the Sisters' property. Finally, plaintiff argues the Sisters conduct a business at the convent which violates the restrictive covenant and which generates commercial traffic on Dromore Road

The Sisters reply that the six lots which remain residential and non-commercial are far removed from Central Avenue and are located on Dromore Road, a country road leading to acreage which is forested, undeveloped or residential. The Sisters argue this residential and rural area is the largest portion of the subdivision. The now commercial lots facing Central Avenue consist of approximately 8.5 acres while the residential and rural area on Dromore Road consists of approximately 38.5 acres, or more than 80 percent of the subdivision. The Sisters claim that the activities hosted by the Greenburgh Nature Center all occur during daylight hours and none of the activities on the Nature Center's 33-acre parcel can be heard on the other parcels in the subdivision. The Sisters claim that the portion of the Edgemont School Campus which borders their property is not part of the subdivision and it contains only tennis courts and a ballfield which are used only occasionally and only when school is in session. Finally, the Sisters claim that their production of altar bread for area parishes is not a business prohibited by the restrictive covenant but is a permitted incidental use of their convent.

In determining whether or not a restrictive covenant should be extinguished pursuant to RPAPL 1951 the court must consider all relevant factors when balancing equities to determine whether the restriction is of no actual and substantial benefit (Orange and Rockland Utilities, Inc. v Philwood Estates, 52 NY2d 253 [1981]). "Foremost in the factors to be considered is the fact that if the covenant is enforced there is no use whatsoever to which the restricted land can be put" (Orange and Rockland, supra at 265). Here, plaintiff cannot claim that it can put its property to no use due to the restriction. In fact, there is evidence in the record that plaintiff purchased the property with the intent to subdivide it for the construction of residences, a use to which the property can still be put. On the other hand, "the issue is not whether [the Sisters] obtain any benefit from the existence of the restriction but whether in a balancing of equities it can be said to be, in the wording of the statute, 'of no actual and substantial benefit' " (Orange and Rockland, supra at 266).

Factors courts have considered when balancing equities to determine whether a restrictive covenant is to be extinguished pursuant to RPAPL 1951 are the burden or hardship on the owner of the land subject to the restriction (Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424 [2004]; the extent of commercial development in the area surrounding the parcels subject to the covenant, the number of property owners who have voluntarily released their rights under the restriction (Bd. of Educ. East Irondequott Central School Dist. v Doe, 88 AD2d 108 [4th Dept 1982]); whether the area maintains an exclusive residential nature, whether lot owners have placed a value on the restriction (Deak, supra); whether the character of [the subdivision] has changed so as to defeat the object and purposes for which the protective covenants were imposed (Water Song Dev. Corp. v Dutchess, 38 Misc 3d 1230[A] [Sup Ct, Ontario County 2011]; whether the property is capable of being put to the use required by the restriction (Matter of [*6]Zimmerman, 237 AD2d 892 [4th Dept 1997]); and whether the party seeking to extinguish the restriction purchased the property with knowledge of the restriction (The Nature Conservancy v Congel, 296 AD2d 840 [4th Dept 2002], Cody v Anthony Fabiano and Sons, 246 AD2d 726 [3rd Dept 1998]).

Here, the record discloses triable issues of fact concerning the factors the court must consider. While each party has expressed its opinion concerning the character of the area surrounding the subdivision they have not presented sufficient facts from which a determination can be made. The parties agree that a multi-unit condominium project was built on Lots 2, 3 and 4 facing Central Avenue and releases were given to facilitate its construction, and that some sort of commercial building is located on Lot 1 on Central Avenue, for which releases were also given. However, no evidence was presented concerning the nature and extent of the commercial development along Central Avenue in the neighborhood of the subdivision. Also, issues of fact remain whether or not the commercial nature of the 8.5 acres of the subdivision facing Central Avenue changes the character of the remaining 37 acres of the subdivision which the Sisters claim remains forested and rural. The parties agree that the Edgemont Junior/Senior High School tennis courts and ballfield border the area but there is no evidence from which to determine whether or not the use of these facilities disturb the purported residential and rural character of the subdivision on which it borders. Nor is there sufficient evidence from which to determine the location of the school buildings in relation to the subdivision. In addition, issues of fact remain as to the nature and extent of the use of the 33-acre Greenburgh Nature Center, and whether such use affects the purported residential and rural nature of the 80 percent of the subdivision which does not front Central Avenue. Finally, from the evidence submitted the court cannot determine as a matter of law whether the production of altar bread in the Sisters' convent should be considered a business in violation of the restrictive covenant or a permitted incidental use of the Sisters' convent.