Kolker v. Hurwitz

269 F.R.D. 119 (2010)

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Nature of the Case

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Facts

P and his wife purchased lot 19 in the community Surfside in Palmas del Mar. P's wife became ill and passed away in 1992. P occasionally visited the land after his wife's death and noticed that D had cemented over a portion of the green area in front of D's residence to build a pool and gazebo. D installed a generator and a large garbage receptacle in the green area adjacent to P's property. Ds, Surfside Development Corporation and D did not seek and/or receive P's consent. D called P in order to seek his permission to add further structures in the green area adjacent to lot 19. D refused. During the same time period, P met with the Palmas del Mar Architectural Review Board and informed them of his objections to D's adverse possession of the covenanted green areas. Palmas del Mar Properties, Inc. (D) sent P a letter stating that P had unreasonably withheld his consent to allow the construction of the green area. The letter also stated that the proposed construction would not obstruct P's view. Kolker (P) responded in kind presenting his position. P then saw that someone had marked for construction a certain portion of the green areas. The proposed new structure was described as a 30-foot by 30-foot gazebo with a kitchenette and a bathroom in the green area directly in front of P's proposed house. No agreement could be reached. P sued Ds seeking a declaratory judgment that the existing pool, gazebo, generator, and garbage receptacle are in breach of the Palmas Master Plan and Puerto Rico law. P seeks to enjoin Ds from using the existing structures and building additional structures in the covenanted green areas because the existing and proposed structures violate Puerto Rico law and the Palmas Master Plan. P claims that the existing structures constitute a breach of contract. P requested damages pursuant to Puerto Rico's tort action statute. Ds moved to dismiss claiming that D failed to properly serve them. P attempted to serve D, Charles Hurwitz, and Barbara Hurwitz, by having Joe Barak leave copies of the complaint and summons with a security guard at the entrance of their apartment complex.