HOMESIDE DEVELOPMENT CORP v. LLC (2006)

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered November 16, 2004, which, in an action seeking rescission of a contract for the sale of certain real property, granted the motion of defendant seller Dassa Brill LLC to dismiss the complaint, unanimously affirmed, with costs.

The deed restriction requiring that the property that was the subject of the contract of sale be used for community rather than residential or commercial purposes did not constitute an encumbrance upon the marketability of title to the property (see Voorheesville Rod & Gun Club, Inc. v. E.W. Tompkins Co., Inc., 82 N.Y.2d 564, 571-572, 606 N.Y.S.2d 132, 626 N.E.2d 917 [1993] ).   Nor does it appear from the allegations of the complaint, even when liberally construed, that the deed restriction was in any way concealed from plaintiff, much less under circumstance warranting rescission on the ground of fraud (cf. Sokolow, Dunaud, Mercadier & Carreras LLP v. Lacher, 299 A.D.2d 64, 747 N.Y.S.2d 441 [2002] ).   The restrictive covenant, limiting use of the premises to “Community Facility Use,” was a matter of public record.

We have considered plaintiff's remaining arguments and find them unavailing.