KAUFMAN v. KEHLER

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

Melvyn KAUFMAN, et al., respondents, v. Elizabeth KEHLER, et al., appellants, et al., defendant.

Decided: January 31, 2006

A. GAIL PRUDENTI, P.J., HOWARD MILLER, WILLIAM F. MASTRO, and ROBERT J. LUNN, JJ. Cahill, Gordon & Reindel, LLP, New York, N.Y. (Howard G. Sloane and Roy L. Regozin of counsel), for appellants. Kucker & Bruh, LLP, New York, N.Y. (John M. Churneftsky of counsel), for respondents.

In an action to enforce a restrictive covenant and recover damages for its breach, the defendants Elizabeth Kehler and Dean Kehler appeal from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered December 15, 2004, as denied that branch of their motion which was for summary judgment dismissing the second cause of action, seeking an injunction, and failed to search the record and grant them summary judgment dismissing the first cause of action, seeking damages for breach of a restrictive covenant.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs to the appellants, that branch of the motion which was for summary judgment dismissing the second cause of action is granted, and upon searching the record, summary judgment dismissing the first cause of action is awarded to the appellants, and the complaint is dismissed.

 The Supreme Court should have granted that branch of the appellants' motion which was for summary judgment dismissing the cause of action for an injunction.   On a prior appeal in this matter, this court determined that, while the appellants made a prima facie showing that the doctrine of unclean hands bars the plaintiffs from seeking injunctive relief, the plaintiffs raised a triable issue of fact as to whether the plaintiffs, in fact, violated the same restrictive covenant the plaintiffs seek to enforce against the appellants (see Kaufman v. Kehler, 5 A.D.3d 564, 772 N.Y.S.2d 841).   The new evidence submitted on the appellants' motion conclusively established that the plaintiffs did, in fact, violate the same restrictive covenant they seek to enforce against the appellants.   The appellants are therefore entitled to summary judgment (see Reeves v. Manufacturers Hanover Trust Co., 117 A.D.2d 789, 499 N.Y.S.2d 429;  see also Weiss v. Flushing Natl. Bank, 176 A.D.2d 797, 575 N.Y.S.2d 126).

 The plaintiffs' further arguments regarding the affirmative defense of unclean hands were raised and decided on the prior appeal, and may not be raised again here (see Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867;  Johnson v. Incorporated Vil. of Freeport, 288 A.D.2d 269, 733 N.Y.S.2d 622;  Matter of Parsons, 78 A.D.2d 876, 433 N.Y.S.2d 28).

 Moreover, the materials submitted in support of and in opposition to the plaintiffs' cross motion for summary judgment demonstrated that the plaintiffs sustained no compensable harm as a result of the appellants' alleged breach of the restrictive covenant (see Binghamton Plaza v. Gilinsky, 32 A.D.2d 994, 301 N.Y.S.2d 921).   Accordingly, upon searching the record, we award the appellants summary judgment dismissing the cause of action seeking damages for breach of the restrictive covenant (see CPLR 3212[b];  Osborne v. Zornberg, 16 A.D.3d 643, 645, 792 N.Y.S.2d 183;  Centre Great Neck v. Rite Aid Corp., 292 A.D.2d 484, 739 N.Y.S.2d 420;  QDR Consultants & Dev. Corp. v. Colonia Ins. Co., 251 A.D.2d 641, 643-644, 675 N.Y.S.2d 117).

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