CHATEAU RIVE CORP v. ENCLAVE DEVELOPMENT ASSOCIATES (2005)

In an action, inter alia, for a judgment declaring that the defendant is obligated to construct a road connecting the plaintiff's property to a public highway, to compel specific performance of a covenant requiring the defendant to construct the road, and to recover damages for breach of contract, the defendant appeals from (1) two orders of the Supreme Court, Westchester County (Rudolph, J.), both dated June 14, 2004, and (2) a judgment of the same court entered June 9, 2004, which, after a nonjury trial, is in favor of the plaintiff and against it in the sum of $1,821,177, and the plaintiff cross-appeals from the judgment.   The appeal and cross appeal from the judgment bring up for review the issues raised on an appeal and cross appeal from an order of the same court (Donovan, J.), entered February 14, 2003 (see Chateau Rive Corp. v. Enclave Dev. Assoc., 22 A.D.3d 445, 802 N.Y.S.2d 622 [decided herewith] ).

ORDERED that the appeals from the orders dated June 14, 2004, are dismissed as academic in light of our determination of the appeal from the judgment;  and it is further,

ORDERED that the judgment is reversed, on the law, with costs, the orders dated June 14, 2004, and the order entered February 14, 2003, are vacated, upon renewal, those branches of the plaintiff's motion which were for summary judgment on its cause of action for declaratory relief and on the issue of liability on its cause of action to recover damages for breach of contract are denied, that branch of the defendant's motion which was for summary judgment dismissing the complaint is granted, the complaint is dismissed, and it is declared that the defendant is not obligated to construct the subject road connecting the plaintiff's property to a public highway.

The defendant landowner entered into a written, recorded covenant granting an easement across its property to an adjoining landowner, and obligating it to construct a paved road, with appurtenant utility lines, connecting the adjoining owner's property with a public highway by building the road through an adjacent municipally-owned lot.   The plaintiff, which purchased the benefitted parcel, commenced this action for a judgment declaring that the defendant is obligated to construct the road, to compel specific performance of the covenant requiring the defendant to construct the road, and to recover damages to compensate it for losses allegedly incurred as a result the defendant's breach of the covenant.   The Supreme Court initially granted summary judgment to the plaintiff on its causes of action for declaratory relief and specific performance, and judgment as to liability only on its cause of action seeking damages.   In a related action, we determined that the municipally-owned lot through which the road was to be built had been impliedly dedicated in 1929 by the City of Peekskill as a public park, known as Fort Hill Park (see Riverview Partners v. City of Peekskill, 273 A.D.2d 455, 710 N.Y.S.2d 601).   Upon renewal, the Supreme Court denied the plaintiff's motion for summary judgment on its cause of action for specific performance, but adhered to its prior decision granting judgment to the plaintiff on its causes of action seeking damages and declaratory relief.   The Supreme Court also, in effect, denied that branch of the defendant's motion which was for summary judgment dismissing the complaint.   After a nonjury trial on the issue of damages, the Supreme Court awarded judgment to the plaintiff.   We reverse the judgment, and, inter alia, grant that branch of the defendant's motion which was for summary judgment dismissing the complaint.

 Public parkland is impressed with a public trust and may not be alienated or diverted to private ownership or non-park use without a special act of the New York State Legislature (see Friends of Van Cortlandt Park v. City of New York, 95 N.Y.2d 623, 630, 727 N.Y.S.2d 2, 750 N.E.2d 1050;  Miller v. City of New York, 15 N.Y.2d 34, 37, 255 N.Y.S.2d 78, 203 N.E.2d 478;  Incorporated Vil. of Lloyd Harbor v. Town of Huntington, 4 N.Y.2d 182, 190, 173 N.Y.S.2d 553, 149 N.E.2d 851;  Williams v. Gallatin, 229 N.Y. 248, 128 N.E. 121;  Brooklyn Park Commrs. v. Armstrong, 45 N.Y. 234;  Ackerman v. Steisel, 104 A.D.2d 940, 480 N.Y.S.2d 556, affd. 66 N.Y.2d 833, 498 N.Y.S.2d 364, 489 N.E.2d 251;  Village of Croton-On-Hudson v. County of Westchester, 38 A.D.2d 979, 331 N.Y.S.2d 883, affd. 30 N.Y.2d 959, 335 N.Y.S.2d 825, 287 N.E.2d 617;  Gewirtz v. City of Long Beach, 69 Misc.2d 763, 330 N.Y.S.2d 495, affd. 45 A.D.2d 841, 358 N.Y.S.2d 957;  1988 Ops. St. Comp. No. 88-11).   Contrary to the plaintiff's argument, highway use is destructive of, and inconsistent with, park use (see Kupelian v. Andrews, 233 N.Y. 278, 281-282, 135 N.E. 502;  Matter of Cent. Parkway, 140 Misc. 727, 729, 251 N.Y.S. 577;  1982 Ops. St. Comp. No. 82-255;  see also City of Buffalo v. Day, 8 Misc.2d 14, 162 N.Y.S.2d 817).   Thus, our determination that Fort Hill Park is parkland renders construction of the road impossible (see Kel Kim Corp. v. Central Mkts., Inc., 70 N.Y.2d 900, 902, 524 N.Y.S.2d 384, 519 N.E.2d 295;  Campo v. Board of Education, Brookhaven-Comsewogue Union Free School Dist., 211 A.D.2d 658, 622 N.Y.S.2d 66;  cf. Gimbel Bros. v. Brook Shopping Ctrs., 118 A.D.2d 532, 534, 499 N.Y.S.2d 435;  Studio 54 Disco v. Pee Dee Jay Amusement Corp., 81 A.D.2d 911, 439 N.Y.S.2d 395).   Therefore, upon renewal, the Supreme Court correctly denied the plaintiff's motion for summary judgment on its cause of action for specific performance.   The defendant, however, also established its entitlement to judgment as a matter of law that performance was impossible, and the plaintiff failed to raise a triable issue of fact in opposition.   Thus, the Supreme Court should have, upon renewal, granted summary judgment to the defendant dismissing the plaintiff's second cause of action (see Campo v. Board of Educ., Brookhaven-Comsewogue Union Free School Dist., supra;  Gladsky v. City of Glen Cove, 164 A.D.2d 567, 563 N.Y.S.2d 842).

 Moreover, Fort Hill Park “was impressed with a trust the moment title to it vested in the [c]ity” (Aldrich v. City of New York, 208 Misc. 930, 939, 145 N.Y.S.2d 732, affd. 2 A.D.2d 760, 154 N.Y.S.2d 427;  see Village Green Realty Corp. v. Glen Cove Community Dev. Agency, 95 A.D.2d 259, 260, 466 N.Y.S.2d 26).   Therefore, the defendant is correct that performance was impossible ab initio, and that the covenant was executed under a mutual mistake of fact existing at the time of execution (see Sunlight Funding Corp. v. Singer, 146 A.D.2d 625, 626, 536 N.Y.S.2d 533;  see also Larsen v. Potter, 174 A.D.2d 801, 571 N.Y.S.2d 121;  Ryan v. Boucher, 144 A.D.2d 144, 534 N.Y.S.2d 472;  cf. Gladsky v. City of Glen Cove, supra ).   As such, the covenant was voidable, and the Supreme Court erred in holding that the defendant could be declared in breach of the covenant, or held liable in damages for any delay in constructing the road (see City of New York v. Local 333, Marine Div., Intl. Longshoremen's Assn., 79 A.D.2d 410, 411-412, 437 N.Y.S.2d 98, affd. 55 N.Y.2d 898, 449 N.Y.S.2d 29, 433 N.E.2d 1277;  Fort M Dev. Corp. v. Inland Credit Corp., 54 A.D.2d 862, 388 N.Y.S.2d 603, affd. 43 N.Y.2d 763, 401 N.Y.S.2d 1012, 372 N.E.2d 800).   Rather, the defendant established its entitlement to judgment as a matter of law dismissing the first and third causes of action, seeking declaratory relief and damages for breach of contract, respectively, and the plaintiff failed to raise a triable issue of fact in opposition (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

Accordingly, the defendant was entitled to summary judgment dismissing the complaint.

In light of the foregoing, we do not reach the parties' remaining contentions.

We note that since this is, in part, a declaratory judgment action, the judgment must contain a declaration that the defendant is not obligated to construct the subject road connecting the plaintiff's property to a public highway (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, appeal dismissed 371 U.S. 74, 83 S.Ct. 177, 9 L.Ed.2d 163, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).