Opinion
2003-05118.
Decided March 15, 2004.
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 (Nastasi, J.), entered May 12, 2003, as denied that branch of their motion for summary judgment which was to dismiss the plaintiffs' cause of action for injunctive relief, and the plaintiffs cross-appeal from so much of the same order as denied their cross motion for summary judgment on that cause of action and, in effect, dismissing the second affirmative defense.
Cahill Gordon Reindel, LLP, New York, N.Y. (Howard G. Sloane, Roy L. Regozin, and Scott M. Mory of counsel), for appellants-respondents.
Kucker Bruh, LLP, New York, N.Y. (Nativ Winiarsky of counsel), for respondents-appellants.
Before: FRED T. SANTUCCI, J.P., ANITA R. FLORIO, ROBERT W. SCHMIDT, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the plaintiffs' cross motion which was, in effect, for summary judgment dismissing the defendants' second affirmative defense, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The Supreme Court properly denied that branch of the motion of the defendants Elizabeth Kehler and Dean Kehler (hereinafter the defendants) for summary judgment which was to dismiss the cause of action for injunctive relief. While the defendants made a prima facie showing that the doctrine of unclean hands bars the plaintiffs from seeking injunctive relief ( see Clifton County Rd. Assocs. v. Vinciguerra, 195 A.D.2d 895; Mehlman v. Avrech, 146 A.D.2d 753; Agati v. Agati, 92 A.D.2d 737, affd 59 N.Y.2d 830; TNT Communications v. Management Tel. Sys., 32 A.D.2d 55, affd 26 N.Y.2d 639), the plaintiffs raised a triable issue of fact as to whether they, in fact, violated the same restrictive covenant they seek to enforce against the defendants ( see Mandalay Prop. Owners Assn v. Keiseheuer, 291 A.D.2d 483; Wallack Constr. Co. v. Smalwich Realty Corp., 201 A.D. 133; Pappas v. Excelsior Brewing Co., 170 A.D. 692).
The Supreme Court erred in denying the plaintiffs' cross motion for summary judgment as untimely solely because it was not made within the time constraints ordered by the court ( see Christ Gatzonis Elec. Contr. v. New York City School Constr. Auth., 297 A.D.2d 272; Fainberg v. Dalton Kent Sec. Group, 268 A.D.2d 247; Maravalli v. Home Depot U.S.A., 266 A.D.2d 437; Miranda v. Devlin, 260 A.D.2d 451). Moreover, the plaintiffs established their entitlement to judgment as a matter of law dismissing the defendants' second affirmative defense of extreme delay. There is no evidence that the defendants changed their position, or suffered any injury or prejudice, because of the plaintiffs' delay in seeking injunctive relief ( see Zaccaro v. Congregation Tifereth Israel of Forest Hills, 20 N.Y.2d 77; Cohen v. Krantz, 227 A.D.2d 581; Maddalena v. Pandolfo, 208 A.D.2d 907; Dwyer v. Mazzola, 171 A.D.2d 726). In opposition, the defendant did not raise a triable issue of fact.
However, the plaintiffs did not establish their entitlement to judgment as a matter of law on the defendants' third affirmative defense of substantial and undue harm. The plaintiffs failed to demonstrate that the benefit of an injunction would outweigh the resulting detriment to the defendants ( see Meadow Run Dev. Corp. v. Atlantic Ref. and Mktg. Corp., 155 A.D.2d 752; Nielsen v. Corbo, 35 A.D.2d 580).
SANTUCCI, J.P., FLORIO, SCHMIDT and MASTRO, JJ., concur.