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Rickert-Finlay Covenants Upheld by New York's Highest Court
Good news!
July, 2013
The Broadway-Flushing Homeowners Association (BFHA) recently won a resounding
victory in New York�s highest court; the case has importance for the
Westmoreland Association.
BFHA is one of several Queens communities that are fortunate to have Rickert-Finlay
(R-F) protective covenants. We in the Westmoreland Association, and our
neighbors in the Douglas Manor Association, also have R-F protective covenants.
Among the R-F covenants in the BFHA area is one that prohibits fences or walls
within 20 feet of the front property line, and the side property line for a
corner property (a hedge or shrubbery is allowed). This covenant is almost
identical to Covenant #13 in our Westmoreland area deeds.
In 2004 Anthony Dilluvio bought property in the BFHA area. In 2005 he built a
7-foot high concrete and stucco wall to enclose a swimming pool installed on the
property; the wall was near the property line, in clear violation of the
covenant. When he refused to remove the wall, BFHA sued.
The case eventually came to trial, and in March, 2011 the trial court (there was
no jury) ruled solidly in BFHA�s favor. The court concluded that BFHA had
�standing� to sue � meaning that the Association has the right to sue to enforce
the covenants. The court also upheld the covenant in question and issued an
injunction requiring that the wall be removed. The court rejected Dilluvio�s
argument that the wall was necessary for the safety of children using the pool,
writing that he �knowingly and willingly built the wall and counted on [BFHA]
not having the will or the finances to commence this action.� The judge wrote
that just because Dilluvio could no longer have the size of swimming pool he
built is �not a reason for the court not to enforce the covenant.�
As it happens, the Westmoreland Association had an almost identical situation
arise in 2000. A homeowner built a large stockade fence on his side line; he
refused our request to remove it, arguing that the wall was needed because he
planned to install a swimming pool. We sued. On the eve of trial in 2001 the
homeowner settled, agreeing to remove the fence and replace it with a shrubbery
hedge.
Back to BFHA: Dilluvio appealed; on July 11, 2012 the Appellate Division issued
an excellent opinion fully upholding the trial court�s decision. Dilluvio
appealed again. In a one sentence order issued June 4, 2013 the Court of
Appeals, New York State�s highest court rejected Dilluvio�s appeal, thus
upholding the decisions of both the trial court and the Appellate Division.
In its opinion, the Appellate Division cited a number of previous decisions,
including Westmoreland Association v. West Cutter Estates, our landmark case
filed in 1987. In that case we successfully enforced Covenant #10, the 20' front
setback requirement. The BFHA decision also cited a 1975 decision in a case
brought by the Douglaston Civic Association.
Each of the communities protected by R-F covenants is called upon from
time-to-time to defend those covenants from unscrupulous developers and property
owners. And each association�s victory assists the other R-F communities when it
is their turn to take up the laboring oar. We congratulate and thank our BFHA
neighbors, while remaining prepared to once again do our part when necessary.
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