        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

302
CA 16-01473
PRESENT: WHALEN, P.J., SMITH, CENTRA, CURRAN, AND SCUDDER, JJ.


THOMAS E. PIEKUNKA, JOHN A. HINSMAN, JR., AND
GLENDA L. HINSMAN, PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

C. ROBERT STRAUBING AND CORINNE V. STRAUBING,
DEFENDANTS-RESPONDENTS.


LACY KATZEN, LLP, ROCHESTER (MICHAEL J. WEGMAN OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

JOHN L. BULGER, ROCHESTER, FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Wayne County (Dennis
M. Kehoe, A.J.), entered January 8, 2016. The order denied in part
the motion of plaintiffs for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting that part of plaintiffs’
motion seeking declaratory relief and granting judgment in favor of
plaintiffs as follows:

          It is ADJUDGED and DECLARED that the construction on
     defendants’ property violates restrictive covenants in the
     deeds to the parties’ properties,

and as modified the order is affirmed without costs, and the matter is
remitted to Supreme Court, Wayne County, for further proceedings in
accordance with the following memorandum: The parties own residential
waterfront properties on Greig Street in the Village of Sodus Point.
In the spring of 2014 defendants obtained a building permit for the
construction, inter alia, of a roof over a portion of the deck in the
front of their house, i.e., facing Sodus Bay, and a fireplace on the
deck with privacy walls on each side. When the project was
substantially complete, plaintiffs commenced this action seeking
judgment declaring that the construction on defendants’ property
violates restrictive covenants in the parties’ deeds and seeking
injunctive relief ordering defendants, inter alia, to dismantle and
remove the structures erected pursuant to the building permit.
Supreme Court granted in part plaintiffs’ motion for summary judgment,
dismissing two affirmative defenses asserted by defendants, but
otherwise denied the motion. We agree with plaintiffs that the court
erred in denying plaintiffs’ motion insofar as it sought summary
judgment granting declaratory relief, and we therefore modify the
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                                                         CA 16-01473

order accordingly.

     Plaintiffs allege that defendants’ construction violates
covenants in the parties’ deeds that restrict the location of
structures, including “porch[es]” or “building[s],” that extend from
the front of the residence in the direction of the bay. The covenants
at issue provide, inter alia, that such structures “shall be not more
than 90 (ninety) feet southerly distant from and parallel to the
southern curb of road-way as designated on” a survey map created in
1894 (the 90-foot line).

     Plaintiffs met their initial burden on that part of the motion
seeking declaratory relief by submitting the affidavit of their expert
surveyor, along with survey maps and related documents supporting his
opinion that, within a reasonable degree of professional certainty,
defendants’ construction extends beyond the 90-foot line, in violation
of the restrictive covenants burdening their property (see Bergstrom v
McChesney, 92 AD3d 1125, 1126). Plaintiffs’ expert concluded that the
curb line referenced in the 1894 survey map was in the same location
as the street line depicted in the survey map he created as well as
survey maps created by other surveyors in 2004, 1984 and 1953.
Measuring the distance from the street line to the front of
defendants’ dwelling, plaintiffs’ expert determined that the entirety
of defendants’ construction extended beyond the 90-foot line. He
acknowledged that there is a 7.4 foot discrepancy between his survey
map and two other survey maps created for defendants’ property in 2006
and 1993 respectively, but added that, even if he relied on those
maps, the majority of defendants’ construction extends beyond the 90-
foot line, in violation of the restrictive covenant.

     In opposition to the motion, defendants submitted, inter alia,
the affidavit of their expert surveyor. Unlike plaintiffs’ expert,
defendants’ expert did not conduct an instrument survey, nor did he
offer an opinion with respect to the location of the 90-foot line. We
conclude that the conclusory assertions of defendants’ expert were
insufficient to rebut the opinion of plaintiffs’ expert that, under
any view of the facts, defendants’ construction is in violation of the
restrictive covenants burdening their property (see id. at 1127).

     We agree with defendants, however, that even if the evidence
established that the construction violated the restrictive covenants
at issue, plaintiffs’ own submissions raise issues of fact with regard
to the extent of the violation and the appropriate remedy therefor.
Thus, we conclude that the court properly denied that part of
plaintiffs’ motion seeking injunctive relief. Inasmuch as the
enforcement of the restrictive covenants implicates the equitable
powers of the court, we further conclude that the matter should be
remitted to Supreme Court for the court to fashion an appropriate
remedy (see generally Meadow Run Dev. Corp. v Atlantic Ref. & Mktg.
Corp., 155 AD2d 752, 754).

Entered:   April 28, 2017                       Frances E. Cafarell
                                                Clerk of the Court
