111 Bloomingdale Realty Corp. v. Town of Oyster Bay

In an action to declare certain restrictive covenants void and extinguished, the defendant Town of Oyster Bay appeals from so much of an order of the Supreme Court, Nassau County, dated September 2, 1975, as denied its motion to dismiss the complaint for failure to state a cause of action. Order affirmed insofar as appealed from, with $50 costs and disbursements. Liberally construed, the complaint states a cause of action under subdivision 2 of section 1951 of the Real Property Actions and Proceedings Law to extinguish restrictive covenants. Plaintiff has sufficiently alleged the elements of that cause of action, to wit, (a) that conditions have changed and (b) that it would be inequitable to enforce the restrictions because they do not harm defendant (the ends to be attained by the restrictions have been frustrated by the years), but do harm plaintiff (see Clintwood Manor v Adams, 29 AD2d 278, affd 24 NY2d 759). Gulotta, P. J., Hopkins, Martuscello, Latham and Shapiro, JJ., concur.