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

Melvyn KAUFMAN, Appellant, v. Elizabeth KEHLER, et al., Respondents.

Decided: May 27, 2003

FRED T. SANTUCCI, J.P., GABRIEL M. KRAUSMAN, THOMAS A. ADAMS, and STEPHEN G. CRANE, JJ. Kucker & Bruh, LLP, New York, N.Y. (John M. Churneftsky of counsel), for appellant. Cahill Gordon & Reindel, New York, N.Y. (Howard G. Sloane and Scott M. Mory of counsel), for respondents Elizabeth Kehler and Louise Harpel, individually and as executor of the estate of Peter Harpel.

In an action, inter alia, to enforce a restrictive covenant and recover damages for its breach, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), dated February 7, 2002, which granted the motion of the defendants Elizabeth Kehler, Peter Harpel, and Louise Harpel, and the separate motion of the defendant Edgewater Property Owner's Association, Inc., to dismiss the complaint pursuant to CPLR 3211(a) (7).

ORDERED that the order is affirmed, with costs.

The plaintiff Melvyn Kaufman commenced this action against his neighbor Elizabeth Kehler, alleging that she violated a restrictive covenant which prohibits residences in the community of Edgewater Point from being used for business purposes.   The plaintiff claims that Kehler violated the subject covenant by permitting her parents, the defendants Peter Harpel and Louise Harpel, to live in one of the two houses she owns in the community, and that the defendant Edgewater Point Property Owner's Association, Inc., failed to take any steps to stop the violation.   Contrary to the plaintiff's contention, Kehler did not violate the covenant against business uses by permitting her parents to live, rent free, in one of her homes (see Kaufman v. Fass, 302 A.D.2d 497, 756 N.Y.S.2d 247).   Accordingly, the Supreme Court properly granted the defendants' motions to dismiss the complaint for failure to state a cause of action.

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