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COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the bank’s (Citimortgage’s) motion to dismiss the plaintiff’s action to cancel and discharge a mortgage should not have been granted. The bank started a foreclosure action in 2009 and the statute of limitations expired on March 17, 2015. On March 13, 2015, the bank sent a letter to plaintiff purporting to de-accelerate the loan and re-institute the loan as an installment loan. The Second Department determined the motion to dismiss should not have been converted to a motion for summary judgment and the March 13, 2015, letter did not constitute documentary evidence sufficient to dismiss the complaint. There was no proof when the letter was mailed and it could have arrived after the statute of limitations expired:

Here, the Supreme Court should not have converted Citimortgage’s motion pursuant to CPLR 3211(a) to dismiss the complaint to one for summary judgment without providing “adequate notice to the parties” (CPLR 3211[c]…). None of the recognized exceptions to the notice requirement is applicable here. No specific request for summary judgment was made by any party, the parties did not deliberately chart a summary judgment course, and the action did not exclusively involve issues of law which were fully appreciated and argued by the parties … . …

“In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence,’ it must be unambiguous, authentic, and undeniable. Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case. However, neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)” … . Furthermore, “[a] lender may revoke its election to accelerate the mortgage, but it must do so by an affirmative act of revocation occurring during the six-year statute of limitations period subsequent to the initiation of the prior foreclosure action”… . Soroush v Citimortgage, Inc., 2018 NY Slip Op 03724, Second Dept 5-23-18

​FORECLOSURE (COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/CIVIL PROCEDURE (DISMISS, MOTION TO, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/DISMISS, MOTION TO (CIVIL PROCEDURE, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/DOCUMENTARY EVIDENCE (DISMISS, MOTION TO, COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))/CPLR 3211 (COURT SHOULD NOT HAVE CONVERTED THE MOTION TO DISMISS TO A MOTION FOR SUMMARY JUDGMENT, BANK’S LETTER SEEKING TO REVOKE THE ACCELERATION OF THE MORTGAGE BEFORE THE STATUTE OF LIMITATIONS FOR A FORECLOSURE ACTION RAN OUT WAS NOT DOCUMENTARY EVIDENCE UPON WHICH A MOTION TO DISMISS COULD BE BASED (SECOND DEPT))

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INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this foreclosure action should not have been granted because the proof of compliance with the Real Property Actions and Proceedings Law (RPAPL) 90 day notice mailing requirements was insufficient:

Proof of the requisite mailing is established with proof of the actual mailings, such as affidavits of mailing or domestic return receipts with attendant signatures, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure … .

Here, in moving for summary judgment, the plaintiff failed to submit an affidavit of service or other proof of mailing by the post office establishing that it properly served [defendant] pursuant to RPAPL 1304. The unsubstantiated and conclusory statement of a vice president of the plaintiff that a 90-day pre-foreclosure notice “was forwarded by regular and certified mail” to [defendant] “in full compliance with all requirements of RPAPL § 1304” was insufficient to establish that the notice was actually mailed to [defendant] by first-class and certified mail … . Wells Fargo Bank, NA v Mandrin, 2018 NY Slip Op 02826, Second Dept 4-25-18

​FORECLOSURE (INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EVIDENCE (FORECLOSURE, 90 DAY NOTICE,  INSUFFICIENT PROOF OF COMPLIANCE WITH THE 90 DAY NOTICE MAILING REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), PLAINTIFF BANK’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the complaint stated a cause of action to quiet title:

“To maintain a cause of action to quiet title [to real property], a plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is actually invalid or inoperative” … . …

Here, the complaint alleged, in relevant part, that the plaintiff acquired title to the subject property pursuant to a deed dated September 10, 2008, from nonparty Joon Asset Mgmt. Corp. (hereinafter Joon). The complaint also alleged that the plaintiff is in possession of the property and that there exists a removable cloud on the property in the form of a deed dated January 7, 2008, and recorded November 6, 2008, purporting to convey title to the property from Joon to the defendant Edna Rios. The complaint further alleged that the deed to Rios was invalid and part of a fraudulent scheme, and that Rios’s role in the scheme was that of a “straw buyer.” The complaint sought to adjudge the deed dated January 7, 2008, to be a fraudulent deed, the plaintiff to be the holder of an undivided fee interest in the premises pursuant to the deed dated September 10, 2008, and Rios to be barred from all claims to any estate or interest in the premises.

Accepting these allegations as true, the complaint pleads a viable cause of action to quiet title … . Nurse v Rios, 2018 NY Slip Op 02640, Second Dept 4-18-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (QUIET TITLE, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))/QUIET TITLE (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))/DEEDS (QUIET TITLE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))/FRAUD (QUIET TITLE, REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE AND SHOULD NOT HAVE BEEN DISMISSED, CRITERIA EXPLAINED (SECOND DEPT))

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SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the trial court erred when it deviated from a stipulation entered into by the parties concerning the measure of damages for trees inadvertently cut and removed from plaintiffs’ property by defendants:

… Supreme Court erred in deviating from their stipulation in rendering the damages award. No grounds have been shown to vacate the parties’ clearly expressed agreement as to the merchantability of the various trees or the methodology to be used in formulating the award. As the parties here were “free to chart their own course [and] fashion the basis upon which [this] particular controversy [would] be resolved” … , Supreme Court was not free to substitute its own judgment for that of the parties … . We must therefore determine, in the exercise of our discretion and in accordance with the parties’ stipulation, the appropriate measure of damages to be awarded as a consequence of defendants’ illegal removal of the 442 trees from plaintiffs’ property. * * *

Considering the facts and circumstances of this case, and mindful of the overriding purpose and intent of RPAPL 861, we find that plaintiffs are entitled to statutory damages of $250 per tree for the 442 trees cut and removed… . We emphasize that our discretionary determination in this regard is narrow and circumscribed by the parties’ stipulation … , which we are bound to honor. Halstead v Fournia, 2018 NY Slip Op 02525, Third Dept 4-12-18

​REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/CONTRACT LAW (STIPULATIONS, SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/STIPULATIONS (SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/TIMBER (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))/TREES (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUPREME COURT SHOULD NOT HAVE DEVIATED FROM THE STIPULATION ENTERED INTO BY THE PARTIES WHICH DESCRIBED THE DAMAGES AVAILABLE UNDER REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) FOR THE INADVERTENT REMOVAL OF TREES FROM PLAINTIFFS’ PROPERTY BY DEFENDANTS (THIRD DEPT))

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RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT).

The Third Department, reversing County Court (which had affirmed Town Court), determined that the tenant-respondent’s defenses in this eviction proceeding should have been considered:

“When a landlord-tenant relationship exists, the landlord may maintain a special proceeding to remove a tenant if, as relevant here, ‘[t]he tenant continues in possession of any portion of the premises after the expiration of his [or her] term'” … . The tenant is free, however, to raise “any legal or equitable defense, or counterclaim” in answering the allegations in the petition … .

In that regard, respondent asserted a defense of retaliatory eviction, which includes the scenario wherein a landlord terminates a tenancy “to punish the tenant for complaining to government authorities and then . . . brings a holdover proceeding to evict the tenant” … . Respondent made “[a] good faith complaint . . . to a governmental authority of the landlord’s violation of any health or safety law, regulation, code, or ordinance” within the six months prior to the commencement of this proceeding … . …

​Town Court further failed to grapple with the defenses of constructive eviction and breach of the implied warranty of habitability raised by respondent. County Court correctly observed that these defenses cannot forestall an eviction in a holdover proceeding, but overlooked that they are viable “defense[s] to the recovery of rent” in such proceeding ,,, , Matter of Kirkview Assoc. LP v Amrock, 2018 NY Slip Op 02389, Third Dept 4-5-18

​LANDLORD-TENANT (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/RETALIATORY EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/CONSTRUCTIVE EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/HABITABILITY, WARRANTY OF (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (EVICTION,  (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/REAL PROPERTY LAW (EVICTION,  (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))

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PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT).

The Second Department determined plaintiff’s twice filing for bankruptcy tolled the statute of limitations for the foreclosure action, making the foreclosure action timely. Therefore, the bank’s motion to dismiss plaintiff’s Real Property Actions and Proceedings Law (RPAPL) 1501 action to cancel and discharge the mortgage was properly granted:

Section 362 of the 1978 Bankruptcy Code (11 USC) provides that the filing of a petition in bankruptcy “operates as a stay, applicable to all entities, of . . . the commencement or continuation . . . of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title” … . The filing of a petition for protection under the Bankruptcy Code imposes “an automatic stay of any mortgage foreclosure actions” … . CPLR 204(a) provides that “[w]here the commencement of an action has been stayed . . . by statutory prohibition, the duration of the stay is not a part of the time within which the action must be commenced.” Pursuant to CPLR 204(a), the Bankruptcy Code’s automatic stay tolls the limitations period for foreclosure actions … .

Here, in support of its motion to dismiss pursuant to CPLR 3211(a)(7), U.S. Bank submitted copies of the plaintiff’s petitions filed in the Bankruptcy Court, together with copies of the orders dismissing the first bankruptcy proceeding and releasing the subject property from the bankruptcy estate in the second bankruptcy proceeding, thereby establishing that, pursuant to CPLR 204(a), the statute of limitations had been tolled for over 4½ years. Lubonty v U.S. Bank N.A., 2018 NY Slip Op 02153, Second Dept 3-28-18

FORECLOSURE (PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))/BANKRUPTCY (FORECLOSURE, PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, FORECLOSURE, PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))/STATUTE OF LIMITATIONS (FORECLOSURE, BANKRUPTCY, PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))/CPLR 204 (FORECLOSURE, BANKRUPTCY, PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, RPAPL 1501 ACTION TO CANCEL AND DISCHARGE MORTGAGE, PLAINTIFF’S TWICE FILING FOR BANKRUPTCY TOLLED THE STATUTE OF LIMITATIONS FOR OVER FOUR YEARS, FORECLOSURE ACTION WAS THEREFORE TIMELY (SECOND DEPT))

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BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT).

The Second Department determined plaintiff bank’s motion for summary judgment in this foreclosure action was properly denied. Although the bank demonstrating standing to bring the action, it did not demonstrate compliance with the notice provisions of Real Property Actions and Proceedings Law (RPAPL) 1304 with admissible evidence:

… [S]ince the defendant raised the issue of compliance with RPAPL 1304 as an affirmative defense in his answer, the plaintiff was required to make a prima facie showing of compliance with RPAPL 1304 … . The plaintiff failed to make the requisite showing. In support of its motion, the plaintiff submitted the affidavit of Sherry Benight, an officer of Select Portfolio Servicing, Inc. (hereinafter SPS), the loan servicer, along with two copies of a 90-day notice addressed to the defendant and a proof of filing statement pursuant to RPAPL 1306 from the New York State Banking Department. While mailing may be proved by documents meeting the requirements of the business records exception to the hearsay rule, Benight, in her affidavit, did not aver that she was familiar with the plaintiff’s mailing practices and procedures, and therefore did not establish proof of a standard office practice and procedure designed to ensure that items are properly addressed and mailed … . Moreover, the plaintiff failed to demonstrate, prima facie, that the notices included a list of five housing counseling agencies, as required by the statute (see RPAPL 1304[2]). Although Benight stated in her affidavit that the notices included such a list, the copies of the notices submitted merely included information about contacting a hotline that would provide “free personalized advice from housing counseling agencies certified by the U.S. Department of Housing and Urban Development.” Bank of Am., N.A. v Wheatley, 2018 NY Slip Op 01175, Second Dept 2-21-18

FORECLOSURE (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT))/EVIDENCE (FORECLOSURE, (BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (FORECLOSURE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT))/BUSINESS RECORDS (HEARSAY, FORECLOSURE, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT))/HEARSAY (FORECLOSURE, BUSINESS RECORDS EXCEPTION, BANK DID NOT DEMONSTRATE COMPLIANCE WITH THE NOTICE PROVISIONS OF THE REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL), BANK’S MOTION FOR SUMMARY JUDGMENT IN THIS FORECLOSURE ACTION PROPERLY DENIED (SECOND DEPT))

ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT).

The Fourth Department determined Supreme Court properly granted petitioner a license pursuant to Real Property Actions and Proceedings Law (RPAPL) 881 to enter respondent’s property to paint petitioner’s fence. The fact that petitioner built the fence too close to the property line did not preclude the granting of the license:

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… [W]e conclude that, in the absence of a statutory definition, the usual and commonly understood meaning of the words “improvement” and/or “repair” encompasses the painting of the wooden fence in this case … .That interpretation is supported by the legislative history, which establishes that the legislature—in recognition that the nature of abutting properties often requires property owners to access the neighboring property in order to make improvements or repairs to their own—intended to encourage such improvements or repairs by removing unreasonable obstacles to efforts to prevent blight and deterioration … . Stuck v Hickmott, 2018 NY Slip Op 01013, Fourth Dept 2-9-18

REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT))/FENCES (ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT))/LICENSE (RPAPL 881) (ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT))/REAL PROPERTY  (ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 881 TO ENTER NEIGHBOR’S PROPERTY TO PAINT A FENCE (FOURTH DEPT))

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ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT).

The Second Department determined Supreme Court properly found that cladding and a drip edge plaintiff added to a party wall constituted a trespass. But Supreme Court should not have granted summary judgment on the issue whether defendant was entitled to an injunction directing plaintiffs to remove the cladding and drip edge:

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… [T]he Supreme Court erred in granting summary judgment to the defendant on the issue of whether it was entitled to an injunction directing the plaintiffs to remove the cladding and drip edge. RPAPL 871(1) provides that an “action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land. Nothing herein contained shall be construed as limiting the power of the court in such an action to award damages in an appropriate case in lieu of an injunction or to render such other judgment as the facts may justify.” In order to obtain injunctive relief pursuant to RPAPL 871(1), a party is “required to demonstrate not only the existence of [an] encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to [the encroaching party] from granting such relief” … . Here, the defendant failed to demonstrate the absence of any triable issues of fact concerning whether the balance of equities weighed in its favor … . Kimball v Bay Ridge United Methodist Church, 2018 NY Slip Op 00417, Second Dept 1-24-18

REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) (TRESPASS, PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/TRESPASS (PARTY WALL, ENCROACHMENT,  ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/ENCROACHMENT (PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/PARTY WALL (TRESPASS, ENCROACHMENT, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/ENCROACHMENT (PARTY WALL, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))/INJUNCTION (REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, PARTY WALL, ENCROACHMENT, TRESPASS, ALTHOUGH THE CLADDING AND DRIP EDGE PLAINTIFF INSTALLED ON A PARTY WALL WAS A TRESPASS, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED ON THE DEFENDANT’S REQUEST FOR AN INJUNCTION DIRECTING THE REMOVAL OF THE CLADDING AND DRIP EDGE (SECOND DEPT))

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PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank should have been allowed to amend its complaint in this foreclosure action to add parties and extend the reach of the action to the entire premises. There was evidence a party acquired title to the entire premises by adverse possession:

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In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted “unless the proposed amendment is palpably insufficient or patently devoid of merit” … . Moreover, pursuant to CPLR 1003, “[p]arties may be added at any stage of the action by leave of court” … .

Here, the plaintiff’s proposed cause of action was not “palpably insufficient or patently devoid of merit” … . RPAPL 1501 provides that any person who “claims an estate or interest in real property’ may maintain an action against any other person . . . to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, . . . the defendant might make'”… . Pursuant to RPAPL 1501(5), the interest held by any mortgagee of real property is an “interest in real property” as that phrase is used in article 15… . Thus, contrary to the Supreme Court’s determination, the plaintiff, as mortgagee of the subject premises, asserted a cause of action to quiet title pursuant to RPAPL 1501 based on its claim that the mortgage encumbered the entire premises because the mortgagor acquired title to the entire premises by adverse possession … . Moreover, the plaintiff properly sought leave to amend the summons and complaint to add as defendants certain persons who might claim interests in the premises that are adverse to its own interest. Emigrant Sav. Bank v Walters, 2017 NY Slip Op 07976, Second Dept 11-15-17

 

CIVIL PROCEDURE (AMEND COMPLAINT, FORECLOSURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))/FORECLOSURE (CIVIL PROCEDURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (FORECLOSURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))/ADVERSE POSSESSION (FORECLOSURE, CIVIL PROCEDURE, PLAINTIFF BANK SHOULD HAVE BEEN ALLOWED TO AMEND THE COMPLAINT BY ADDING PARTIES AND TO EXTEND THE REACH OF THE ACTION TO THE ENTIRE PREMISES WHICH HAD BEEN ACQUIRED BY ADVERSE POSSESSION (SECOND DEPT))

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