845 N.Y.S.2d 418
FOREST CLOSE ASSOCIATION, INC., Respondent-Appellant,
v.
ROBERT M. RICHARDS et al., Appellants-Respondents.
Appellate Division of the Supreme Court of the State of New York, Second Department.
Decided November 7, 2007.
Crane, J.P., Spolzino, Krausman and McCarthy, JJ., concur.
Ordered that the order and judgment is modified, on the law and the facts, by adding to the provision permanently enjoining the defendants from constructing any addition in the rear yard of their property the words "without the consent in writing of Forest Close Association, Inc., having been first had and secured"; as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff, Forest Close Association, Inc., a homeowners association representing the interests of the homeowners of the private community of Forest Close in Queens, established its entitlement, as a matter of law, to enforce the restrictive covenant at issue, which prohibits homeowners, such as the defendants herein, from, among other things, erecting, without the plaintiff's consent, any structure on their property that would encroach on the so-called garden quadrangle (see Kew Forest Neighborhood Assn. v Lieberman,306 A.D.2d 443, 444 [2003]; Westmoreland Assn. v West Cutter Estates,174 A.D.2d 144, 148 [1992]; see also Orange & Rockland Util. v Philwold Estates,52 N.Y.2d 253, 263 [1981]; cf. Cappelli Armonk, LLC v Village/Town of Mount Kisco,12 A.D.3d 477, 478 [2004]; Turner v Williams,264 A.D.2d 443 [1999]). In opposition, the defendants failed to raise a triable issue of fact.
Further, the plaintiff established its entitlement to a permanent injunction by demonstrating that it would suffer irreparable harm without such relief (see Kane v Walsh, 295 N.Y. 198, 205-206 [1946]; Williamsburg Around the Bridge Block Assn. v Giuliani,223 A.D.2d 64, 74 [1996]). Specifically, the plaintiff established that the defendants' construction of a proposed brick addition to the rear of their home would alter Forest Close's interior garden quadrangle and would be difficult to remove, and under such circumstances, the plaintiff could not be made whole with an award of damages (cf. Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino,34 A.D.3d 536, 538 [2006]).
The plaintiff also established the applicability of the business judgment rule as shielding from judicial disturbance its decision to enforce the restrictive covenant, as the evidence demonstrates that the enforcement thereof is authorized, was made in good faith, and furthers the plaintiff's interests of maintaining the integrity of Forest Close's interior garden quadrangle (see Matter of Levandusky v One Fifth Ave. Apt. Corp.,75 N.Y.2d 530, 538 [1990]; Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d at 538-539; Nuzzo v Board of Mgrs. of Jefferson Vil. Condominium No. 1,228 A.D.2d 568 [1996]).
However, in light of the plaintiff's concession at oral argument of this appeal that it seeks to enforce the restrictive covenant only to the extent of prohibiting the erection of any structure without its consent, the scope of the permanent injunction has been so limited.
The plaintiff's contention concerning an attorney's fee is not properly before this Court (see Jordan v Jordan,8 A.D.3d 444, 446 [2004]; Royal v Brooklyn Union Gas Co.,122 A.D.2d 132, 133 [1986]).
The remaining contentions of the plaintiff and the defendants are without merit.
