DiBENEDETTO v. TOWN OF BROOKHAVEN

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Supreme Court, Appellate Division, Second Department, New York.

Rosemary DiBENEDETTO, et al., Appellants, v. TOWN OF BROOKHAVEN, et al., Respondents.

Decided: September 16, 2002

MYRIAM J. ALTMAN, J.P., GLORIA GOLDSTEIN, HOWARD MILLER and REINALDO E. RIVERA, JJ. Berkman, Henoch, Peterson & Peddy, P.C., Garden City, N.Y. (Peter Sullivanand James M. Pedowitz of counsel), for appellants. Scheyer & Jellenik, Nesconset, N.Y. (Richard I. Scheyer of counsel), for respondent Town of Brookhaven.

In an action for a judgment declaring that a certain declaration of covenants and restrictions is void and unenforceable, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Berler, J.), dated January 3, 2001, which denied their motion for summary judgment and to dismiss the counterclaim of the defendant Town of Brookhaven.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the counterclaim of the defendant Town of Brookhaven is dismissed, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of a judgment declaring that the declaration of covenants and restrictions dated July 21, 1988, between Route 347 Realty Corp. and the defendant Town of Brookhaven is void and unenforceable to the extent applied to the Rolling Oaks Country Club, formerly known as the Tall Trees Golf Course.

The declaration of covenants and restrictions between the former owner of the Tall Trees Golf Course (hereinafter the golf course) and the defendant Town of Brookhaven (hereinafter the Town), pursuant to which the Town claims it is entitled to dedication of the golf course, is void and unenforceable.   The Town failed to assert any claim of interest in the golf course in the federal forfeiture proceeding against the former owner of the golf course, and title to the golf course vested in the United States free and clear of these claimed encumbrances (see Ibarra v. United States, 120 F.3d 472, 474;  Linarez v. United States Dept. of Justice, 2 F.3d 208).   The plaintiffs, in turn, acquired the property free of any liens, claims, or encumbrances except those specifically listed.   Accordingly, the plaintiffs are entitled to judgment as a matter of law.

In light of the foregoing determination, it is unnecessary to address the plaintiffs' remaining contentions.

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