RPAPL 1951: Waiver/Nonenforcement Can Extinguish an Access Covenant While Other Use-and-Design Covenants Remain Enforceable

1. Introduction

Case: Shmeria, LLC v Sea Gate Assn., 2026 NY Slip Op 02862 (App Div, 2d Dept May 6, 2026).
Parties: Shmeria, LLC (property owner; plaintiff) and Sea Gate Association (community association; defendant).
Setting: Real property on the eastern border of Sea Gate, a private/community enclave in Brooklyn. The Association owns/operates streets, beaches, and other Sea Gate property.

The dispute centered on restrictive covenants created by a recorded May 1948 deed (and “confirmed” in a court order approving a prior sale). Shmeria sought a declaration that multiple covenants were unenforceable and should be extinguished under RPAPL 1951. Sea Gate sought to preserve the restrictions and, alternatively, to extinguish a separate covenant capping dues at “1.75% of assessed value” if other covenants fell.

Key Issues

  • Under RPAPL 1951’s “actual and substantial benefit” and “balancing of equities” framework, which restrictions remain enforceable?
  • Does a history of permitting violations and declining enforcement support extinguishment—particularly of an access restriction?
  • Can the Association eliminate the dues-cap covenant by counterclaim when other restrictions are challenged?
  • Procedurally, may a party use reargument to raise new evidentiary/objection arguments not previously made?

2. Summary of the Opinion

The Second Department ultimately affirmed the Supreme Court’s determinations after reargument:

  • Enforceable (not extinguished): restrictions limiting (i) use (storage/parking/public garage/gas station), (ii) improvements (no structure above one story without approval), (iii) signage (no signs), and (iv) fencing (eight-foot “rustic fence”).
  • Unenforceable and extinguished: the access restriction barring ingress/egress via West 37th Street.
  • Counterclaim dismissed: the Association could not extinguish the dues limitation; it remained of actual and substantial benefit to the owner, and equities favored the owner.

The court also held the plaintiff’s evidentiary challenge to certain rules/regulations/bylaws was improperly raised for the first time on reargument. Separately, on motion practice related to briefing, the court struck specified portions of the Association’s reply brief as improper sur-reply argument.

3. Analysis

A. Precedents Cited

1) Reargument is not a do-over for new arguments

  • FPG CH 94 Amity, LLC v Pizzarotti, LLC, 218 AD3d 651, 653 (2023): The court quoted this proposition to reject attempts to use reargument to present new positions. Reargument is for correcting matters “overlooked or misapprehended,” not for changing strategy.
  • Giovanniello v Carolina Wholesale Off. Mach. Co., Inc., 29 AD3d 737, 737 (2006): Cited alongside FPG CH 94 Amity to reinforce that reargument is not a vehicle for new arguments that could have been raised earlier.

2) The RPAPL 1951 standard: “no actual and substantial benefit” + balancing of equities

  • Ramaquois Real Estate Co., LLC v Town of Haverstraw, 219 AD3d 1538, 1539 (2023): Used to restate the statutory test: a restriction may be extinguished if it confers “no actual and substantial benefit” because its purpose has been accomplished, cannot be accomplished due to changed conditions, or otherwise.
  • Blue Is. Dev., LLC v Town of Hempstead, 131 AD3d 497, 501 (2015): Cited as additional authority articulating the RPAPL 1951 framework and its application in land-use contexts.

3) The inquiry is not “any benefit,” but “actual and substantial benefit” measured through equities

  • Deak v Heathcote Assn., 191 AD2d 671, 672 (1993): Quoted for the point that the question is not whether enforcement yields some benefit, but whether—after balancing equities—the restriction is of “no actual and substantial benefit.”
  • Orange & Rockland Util. v Philwold Estates, 52 NY2d 253 (1981): Cited for the equitable-balancing approach central to RPAPL 1951 determinations. It also underpinned the court’s analysis that waiver/nonenforcement can make a restriction insubstantial in practical benefit.

4) Application to particular covenants: neighborhood character and association interests

  • Ehrlich v Incorporated Vil. of Sea Cliff, 95 AD3d 1068, 1070 (2012): Used to support summary judgment where the party seeking enforcement demonstrates actual and substantial benefit and the challenger fails to raise a triable issue. The case functioned as a template for affirming enforceability of the use/improvements/fencing/signage restrictions and for evaluating proof burdens on summary judgment.
  • Chambers v Old Stone Hill Rd. Assoc., 303 AD2d 536, 537 (2003), affd 1 NY3d 424 (2004): Invoked as authority sustaining enforcement of restrictions where equities and community/association purposes remain viable—supporting the conclusion that certain land-use and aesthetic controls can retain substantial benefit over time.

5) Waiver/nonenforcement as an equity affecting “actual and substantial benefit”

  • Board of Educ., E. Irondequoit Cent. School Dist. v Doe, 88 AD2d 108, 117 (1982): Cited in support of the conclusion that longstanding acquiescence and effective waiver can weigh heavily against enforcement—here, helping justify extinguishment of the access restriction.

B. Legal Reasoning

1) The RPAPL 1951 balancing test drives the outcome covenant-by-covenant

The court treated each covenant as a separate equity-and-benefit question under RPAPL 1951 rather than accepting an all-or-nothing approach. The decisive legal inquiry was whether each restriction conferred an “actual and substantial benefit” to the party seeking enforcement and, critically, whether equities favored continued enforcement.

2) Why the use/improvements/fencing/signage restrictions survived

Sea Gate established a prima facie showing that these restrictions continued to provide “actual and substantial benefit” to the Association. Although the opinion does not exhaustively itemize every factual predicate, the structure of the holding indicates the court viewed these covenants as:

  • Continuing-purpose restrictions (use and building form) that can preserve community expectations and limit incompatible development at Sea Gate’s boundary;
  • Aesthetic/character restrictions (signage and fencing) that can remain meaningful even decades after their creation.

Once Sea Gate made that showing, Shmeria’s opposition failed to raise a triable issue of fact—leading to summary judgment enforcing those covenants. In the court’s framing (drawing on Deak and Orange & Rockland Util.), the question was not whether Shmeria faced burden, but whether the covenants had become insubstantial in benefit when equities are weighed. The court concluded they had not.

3) Why the access restriction was extinguished: practical abandonment and waiver

The access restriction (no ingress/egress from West 37th Street) was treated differently because the plaintiff proved it lacked “actual and substantial benefit” in practice. The court emphasized that Sea Gate:

  • Permitted the restriction to be violated and
  • Declined to enforce it for several years,

leading the court to conclude Sea Gate had “effectively waived” the access restriction. Under the RPAPL 1951 equity analysis (supported by Orange & Rockland Util. v Philwold Estates and Board of Educ., E. Irondequoit Cent. School Dist. v Doe), a covenant that is functionally abandoned can cease to deliver a substantial, real-world benefit—making extinguishment appropriate. Sea Gate’s opposition did not raise a triable issue to overcome that showing.

4) Why the Association’s counterclaim to extinguish the dues-cap failed

The dues limitation (1.75% of assessed value) was evaluated under the same RPAPL 1951 rubric. The plaintiff demonstrated the covenant was of actual and substantial benefit to it and that equities favored keeping it. The Association, seeking to extinguish the cap, failed to raise a triable issue in response. In practical terms, the court treated the dues-cap not as an incidental term, but as a meaningful property-related protection that should not be removed absent the statutory showing.

5) Procedural guardrails mattered

Two procedural points reinforced disciplined appellate practice:

  • Reargument limits: Shmeria could not raise a new admissibility argument for the first time on reargument, consistent with FPG CH 94 Amity, LLC v Pizzarotti, LLC and Giovanniello v Carolina Wholesale Off. Mach. Co., Inc..
  • No sur-reply in a reply brief: The court struck specified portions of the Association’s reply brief as improper sur-reply argument, underscoring that reply briefs cannot be used to introduce new matter beyond proper reply.

C. Impact

1) A clear roadmap for mixed outcomes under RPAPL 1951

The decision illustrates that RPAPL 1951 litigation can yield a granular, covenant-specific result: courts may preserve “character” and “use” restrictions while extinguishing a discrete covenant that has become ineffectual through waiver or nonenforcement.

2) Waiver/nonenforcement can be decisive—especially for operational restrictions like access

The access restriction fell not merely because it was inconvenient, but because enforcement history undermined any claim of substantial benefit. For associations and servitude beneficiaries, the message is practical: consistent enforcement practices help preserve enforceability, while prolonged acquiescence can support extinguishment under RPAPL 1951’s equity framework.

3) Dues-covenants are not automatically vulnerable “trade-offs”

The Association attempted a strategic linkage: if other covenants are attacked, the dues cap should be removed. The dismissal of the counterclaim signals that courts will still require the statutory showing—benefit and equities—rather than treating financial covenants as bargaining chips to be rebalanced whenever other restrictions are litigated.

4) Litigation practice: preserve arguments early, brief within bounds

The reargument and reply-brief rulings highlight that outcomes can turn on disciplined motion and appellate practice—properly raising evidentiary points at the correct procedural moment and avoiding improper sur-reply content.

4. Complex Concepts Simplified

  • Restrictive covenant: A promise in a deed that limits how land can be used (e.g., permitted uses, building height, signage).
  • RPAPL 1951: A New York statute permitting courts to extinguish land-use restrictions that no longer provide an “actual and substantial benefit,” assessed through an equitable balancing (often considering changed conditions, feasibility, and fairness).
  • “Actual and substantial benefit”: Not a theoretical or minor advantage—something real and meaningful to the party seeking enforcement, evaluated in context.
  • Balancing of equities: A fairness assessment weighing the burden on the property owner against the real-world benefit to the enforcing party and the conduct of the parties.
  • Waiver (in this context): When the beneficiary effectively gives up a right by knowingly allowing violations and declining enforcement over time.
  • Summary judgment: A ruling without trial when no material facts are genuinely disputed and the movant is entitled to judgment as a matter of law.
  • Motion to reargue: A request for the same court to reconsider because it overlooked/misapprehended something; it is not meant for new arguments.
  • Sur-reply in a reply brief: Improper “new argument” material beyond replying to the opponent’s points; courts may strike it.

5. Conclusion

Shmeria, LLC v Sea Gate Assn. reinforces a pragmatic RPAPL 1951 principle: restrictive covenants will be preserved where they continue to provide actual, substantial community/association benefit, but a discrete covenant—especially an access limitation—may be extinguished where the beneficiary’s prolonged acquiescence and nonenforcement demonstrate waiver and negate substantial benefit. The decision also underscores that courts will (i) police procedural boundaries on reargument and briefing and (ii) evaluate even “financial” deed terms like dues caps under the same benefit-and-equities framework rather than reflexively rebalancing them when other restrictions are challenged.