Westmoreland Association, Inc.
251-31 42nd Avenue, Little Neck, NY 11363 
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Rickert-Finlay Covenants Upheld by New York's Highest Court

Good news!
July, 2013

The Broadway-Flushing Homeowners Association (BFHA) recently won a resounding victory in New York�s highest court; the case has importance for the Westmoreland Association.

BFHA is one of several Queens communities that are fortunate to have Rickert-Finlay (R-F) protective covenants. We in the Westmoreland Association, and our neighbors in the Douglas Manor Association, also have R-F protective covenants.

Among the R-F covenants in the BFHA area is one that prohibits fences or walls within 20 feet of the front property line, and the side property line for a corner property (a hedge or shrubbery is allowed). This covenant is almost identical to Covenant #13 in our Westmoreland area deeds.

In 2004 Anthony Dilluvio bought property in the BFHA area. In 2005 he built a 7-foot high concrete and stucco wall to enclose a swimming pool installed on the property; the wall was near the property line, in clear violation of the covenant. When he refused to remove the wall, BFHA sued.

The case eventually came to trial, and in March, 2011 the trial court (there was no jury) ruled solidly in BFHA�s favor. The court concluded that BFHA had �standing� to sue � meaning that the Association has the right to sue to enforce the covenants. The court also upheld the covenant in question and issued an injunction requiring that the wall be removed. The court rejected Dilluvio�s argument that the wall was necessary for the safety of children using the pool, writing that he �knowingly and willingly built the wall and counted on [BFHA] not having the will or the finances to commence this action.� The judge wrote that just because Dilluvio could no longer have the size of swimming pool he built is �not a reason for the court not to enforce the covenant.�

As it happens, the Westmoreland Association had an almost identical situation arise in 2000. A homeowner built a large stockade fence on his side line; he refused our request to remove it, arguing that the wall was needed because he planned to install a swimming pool. We sued. On the eve of trial in 2001 the homeowner settled, agreeing to remove the fence and replace it with a shrubbery hedge.

Back to BFHA: Dilluvio appealed; on July 11, 2012 the Appellate Division issued an excellent opinion fully upholding the trial court�s decision. Dilluvio appealed again. In a one sentence order issued June 4, 2013 the Court of Appeals, New York State�s highest court rejected Dilluvio�s appeal, thus upholding the decisions of both the trial court and the Appellate Division.

In its opinion, the Appellate Division cited a number of previous decisions, including Westmoreland Association v. West Cutter Estates, our landmark case filed in 1987. In that case we successfully enforced Covenant #10, the 20' front setback requirement. The BFHA decision also cited a 1975 decision in a case brought by the Douglaston Civic Association.

Each of the communities protected by R-F covenants is called upon from time-to-time to defend those covenants from unscrupulous developers and property owners. And each association�s victory assists the other R-F communities when it is their turn to take up the laboring oar. We congratulate and thank our BFHA neighbors, while remaining prepared to once again do our part when necessary.

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