06-0078-cv
O’Mara v. Town of W appinger



                               UNITED STATES COURT OF APPEALS

                                      FOR THE SECOND CIRCUIT

                                         _______________

                                         August Term, 2006

(Argued: January 22, 2007                                                 Decided: March 5, 2008)

                       Docket No. 06-0078-cv(L), 06-1323-cv(CON)
              ________________________________________________________

  DONALD J. O’MARA III, PATRICK L. O’MARA SR., and ABSOLUTE PROPERTY MANAGEMENT ,
                                        INC.,

                               Plaintiffs-Counter-Defendants-Appellees,

                                               —v.—

                                       TOWN OF WAPPINGER ,

                               Defendant-Counter-Claimant-Appellant.

              ________________________________________________________


    B e f o r e : SOTOMAYOR, KATZMANN , Circuit Judges and CEDARBAUM , District Judge.*

                                         _______________



        In a previous opinion, we certified to the New York Court of Appeals the following
dispositive question: “Is an open space restriction imposed by a subdivision plat under New
York Town Law § 276 enforceable against a subsequent purchaser, and under what
circumstances?” O’Mara v. Town of Wappinger, 485 F.3d 693, 699 (2d Cir. 2007). The New
York Court of Appeals found “[a]n open space restriction placed on a final plat pursuant to Town


        *
         The Honorable Miriam Goldman Cedarbaum of the United States District Court for the
Southern District of New York, sitting by designation.
Law § 276, when filed in the Office of the County Clerk pursuant to Real Property Law § 334, is
enforceable against a subsequent purchaser.” O’Mara v. Town of Wappinger, 9 N.Y.3d 303, 309
(2007). Accordingly, we REVERSE the district court’s judgment concerning the enforceability
of the open space restriction and REMAND to the district court.
                                       _______________

For Plaintiffs-Counter-               KENNETH C. BROWN ( James W. Gatthaar and Susan E.
Defendants-Appellees:                 Galvao, of counsel) Bleakley Platt & Schmidt, LLP, White
                                      Plains, NY.

                                      Maurice J. Salem, Esq., Patterson, N.Y.

For Defendant-                        GARY STEIN (Frank LaSalle and Dacia Cocariu of counsel),
Counter-Claimant-Appellant:           Schulte Roth & Zabel LLP, New York, N.Y.

                                      Emanuel F. Saris, Vergilis, Stenger, Roberts, Pergament &
                                      Viglotti, LLP, Wappinger Falls, N.Y.

                                      Michael E. Kenneally, Jr., Albany, N.Y. for The Association
                                      of Towns of the State of New York as amicus curiae in
                                      support of defendant-counter-claimant-appellant Town of
                                      Wappinger.
                                      _______________


PER CURIAM :

       The Town of Wappinger appeals from a declaratory judgment issued by the United States

District Court for the Southern District of New York (McMahon, J.) determining that the open space

restriction imposed by the Town of Wappinger Planning Board is unenforceable. We assume

familiarity with the underlying facts and procedural history, which are set forth in O’Mara v. Town

of Wappinger (O’Mara I), 485 F.3d 693 (2d Cir. 2007). In O’Mara I, we certified the following

question to the New York Court of Appeals: “Is an open space restriction imposed by a subdivision

plat under New York Town Law § 276 enforceable against a subsequent purchaser, and under what




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circumstances?” Id. at 699.1 The New York Court of Appeals accepted certification, O’Mara v.

Town of Wappinger, 8 N.Y.3d 957 (2007), and answered the question in the affirmative, O’Mara

v. Town of Wappinger, 9 N.Y.3d 303 (2007). “An open space restriction placed on a final plat

pursuant to Town Law § 276, when filed in the Office of the County Clerk pursuant to Real Property

Law § 334, is enforceable against a subsequent purchaser.” Id. at 309.

       The New York Court of Appeals’s decision requires us to reverse the district court’s

judgment holding the restriction unenforceable. Because “it is clear that the process of approving

and filing the 1963 Plat complied with [New York Town Law § 276 and Real Property Law § 334],”

O’Mara I, 485 F.3d at 699, the open space restriction is enforceable against subsequent purchasers,

including Donald O’Mara, Patrick O’Mara and Absolute Property Management.

       For the foregoing reasons, the judgment of the district court concerning the enforceability of

the open space restriction is hereby REVERSED, and the action is REMANDED for further

proceedings consistent with this ruling. Each party shall bear its own costs on this appeal.




       1
         The district court also held the Town of Wappinger liable under 42 U.S.C. § 1983 for
actions taken to enforce the open space restriction. In O’Mara I, we reversed the district court’s
ruling concerning § 1983. O’Mara I, 485 F.3d at 699-700.

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