Dushin v. Jacobowitz

—In an action to enforce a restrictive covenant in a deed, the plaintiff appeals from a judgment of the Supreme Court, Orange County (Williams, J.H.O.), dated June 25, 1998, which, after a nonjury trial, is in favor of the defendants and against him, dismissing the complaint. Ordered that the judgment is affirmed, with costs. We agree with the Supreme Court’s determination that the restrictive covenant encumbering the defendants’ property is ambiguous. When a restrictive covenant is ambiguous, public policy favors the free and unobstructed use of the property, and the covenant cannot be enforced (see, Bear Mtn. Books v Woodbury Common Partners, 232 AD2d 595; see also, Freedman v Kittle, 262 AD2d 909). The plaintiffs remaining contentions are without merit. S. Miller, J. P., Joy, Florio and H. Miller, JJ., concur.