You are here: / Real Property Actions and Proceedings Law (RPAPL)
,

Arbitrator’s Misapplication of Law Is Not Reviewable by a Court

In affirming the denial of an application to vacate an arbitrator’s award (in which petitioners were found to have wrongfully removed trees), the Fourth Department noted that the misapplication of law by an arbitrator is not reviewable by a court:

We reject, however, petitioners’ contention that the arbitrator’s alleged misapplication of RPAPL 861 is a sufficient ground to vacate the award in its entirety. “An arbitrator’s resolution of questions of substantive law or fact is not judicially reviewable” … . Thus, even assuming, arguendo, that the arbitrator misapplied RPAPL 861, we conclude that such error is beyond our review. Matter of Svenson v Swegan, 2015 NY Slip Op 08525, 4th Dept 11-20-15

 

, ,

Loan Secured by Shares in a Cooperative Apartment Was Not a “Home Loan” Subject to the Pre-Foreclosure Settlement Conference Required by CPLR 3408

The Second Department determined defendant was not entitled to a pre-foreclosure settlement conference under CPLR 3408. The underlying loan was secured by shares in the cooperative apartment where defendant resided. Such a loan was not a “home loan” within the meaning of Real Property Actions and Proceedings Law (RPAPL) 1304, and therefore was not subject to the mandatory settlement conference under the CPLR:

CPLR 3408 requires, in relevant part, that a court hold a mandatory settlement conference in “any residential foreclosure action involving a home loan as such term is defined in section thirteen hundred four of the real property actions and proceeding law” (CPLR 3408[a]). RPAPL 1304 does not include, in its definition of “home loan,” a loan secured by shares of stock and a proprietary lease from a corporation formed for the purpose of cooperative ownership in real estate (RPAPL 1304[5][a][iii]; cf. Banking Law §§ 6-l[1][e][iv]; 6-m[1][d][iv]). Accordingly, because the subject loan is not a home loan within the meaning of RPAPL 1304, the plaintiff is not entitled to a mandatory settlement conference pursuant to CPLR 3408. DaCosta-Harris v Aurora Bank, FSB, 2015 NY Slip Op 06879, 2nd Dept 9-23-15

 

, ,

Requirements for an Easement In Favor of Public Use Not Met

The Second Department determined the city had failed to demonstrate that an unmapped roadway used since the 1970’s had become a public highway under the Highway Law, and the city failed to demonstrate an “easement in favor of public use” existed over the portion of the roadway which was on defendant’s land. The “Highway Law” statute invoked by the city applied only to towns, not cities. And the requirements for an easement in favor of public use had not been demonstrated. The court explained the easement requirements:

The City argues … that an easement in favor of the public was created over the defendant’s property pursuant to the common-law doctrine of dedication. This doctrine requires evidence of the owner’s intent to dedicate the property for public use and acceptance of the dedication by the public authorities … . Here, however, the City’s submissions in support of its motion for summary judgment failed to establish, prima facie, that the defendant’s land had been dedicated to the use of public travel by any prior owner or the defendant. City of New York v Gounden, 2015 NY Slip Op 06569, 2nd Dept 8-19-15

 

, , , ,

Petition Sufficiently Alleged the Town’s Restrictive Covenant Was Invalid (1) Because It Sought to Regulate the Owner of Land Rather than the Use of the Land, (2) Because It No Longer Could Accomplish Its Purpose, and (3) Because It Effected an Unconstitutional Taking of Petitioner’s Land

The Second Department determined petitioner had stated causes of action contesting the validity and enforceability of a restrictive covenant promulgated by the town requiring that condominiums built by petitioner be sold rather than leased. Petitioner had sufficiently alleged (1) the restrictive covenant was invalid because it regulated the person who owned the land (petitioner) rather than the use of the land, (2) the restrictive covenant was not enforceable because its purpose could not be accomplished, and (3) the restrictive covenant amounted to an unconstitutional taking. The court explained the applicable legal principles:

The power to zone “is not a general police power, but a power to regulate land use” … . “It is a fundamental rule that zoning deals basically with land use and not with the person who owns or occupies it'” … . Furthermore, ” a zoning ordinance will be struck down if it bears no substantial relation to the police power objective of promoting the public health, safety, morals or general welfare'” … .

“[R]estrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy” … . However, even the ” [p]urchase of property with knowledge of [a] restriction does not bar the purchaser from testing the validity of the zoning ordinance [because] the zoning ordinance in the very nature of things has reference to land rather than to owner'” … .

…[Petitioner] sufficiently alleged that the restrictive covenant is improper because it regulates [petiioner’s] ability as the owner of the property to rent the units rather than the use of the land itself. [Petitioner] has further alleged that, particularly in light of the provision permitting future owners to lease units in the development, the restrictive covenant “bears no substantial relation to . . . the public health, safety, morals or general welfare”… .

“Pursuant to RPAPL 1951(1), a restrictive covenant shall not be enforced if, at the time enforceability of the restriction is brought into question, it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason'” . Here, assuming that there is a benefit to be obtained by requiring the units to be sold rather than rented, [petitioner] has alleged that, because the rental restriction imposed by the restrictive covenant applies only to it and not to any subsequent owner of any of the units in the planned development, it is of no substantial benefit to the Town or its citizens. In support of its motion to dismiss, the Town has offered no explanation as to why this is not so. … * * *

With respect to the third cause of action, which alleged an unconstitutional taking based upon “denial of development, as opposed to excessive exactions” …, the test set forth by the United States Supreme Court in Agins v City of Tiburon (447 US 255) applies … . Pursuant to this test, “a zoning law effects a regulatory taking if either: (1) the ordinance does not substantially advance legitimate state interests’ or (2) the ordinance denies an owner economically viable use of his land'” … . However, “[a] reasonable land use restriction imposed by the government in the exercise of its police power characteristically diminishes the value of private property, but is not rendered unconstitutional merely because it causes the property’s value to be substantially reduced, or because it deprives the property of its most beneficial use” … . Thus, a court must examine “(1) [t]he economic impact of the regulation on the claimant’; (2) the extent to which the regulation has interfered with distinct investment-backed expectations’; and (3) the character of the governmental action'”… . Blue Is. Dev., LLC v Town of Hempstead, 2015 NY Slip Op 06488, 2nd Dept 8-12-15

 

,

Cotenant’s Exclusive Possession and Payment of Taxes and Maintenance Costs, Standing Alone, Are Not Enough to Establish Adverse Possession As Against a Cotenant/Criteria for Ouster of Cotenant Not Met

The Third Department determined that the motion to dismiss for failure to state a cause of action was properly granted. A cotenant who had resided at the property, maintained the property, and paid the taxes for over two decades, brought an action seeking exclusive ownership based upon ouster of defendant cotenant and/or adverse possession. Neither the complaint nor plaintiff’s submissions established the statutory criteria for ouster or adverse possession (Real Property Actions and Proceedings Law [RPAPL] 541) . There was no unequivocal expression by the possessory cotenant that the property was being adversely possessed, and the inclusion of the defendant cotenant’s name on a property insurance policy belied adverse possession. The court noted that exclusive possession and payment of maintenance expenses by a cotenant, standing alone, do not establish adverse possession:

The law that would have provided … plaintiff a valid legal claim with regard to the underlying property dispute is RPAPL 541, which provides that, “[w]here the relation of tenants in common has existed, the occupancy of one tenant . . . is deemed to have been the possession of the other, notwithstanding that the tenant so occupying the premises . . . has claimed to hold adversely to the other. But this presumption shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, . . . or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his [or her] cotenant.” It is well settled that, “absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may be said to acquire full title by adverse possession” … .

We reject plaintiff’s contention that she and Lindine ever ousted defendant or defendant’s parents from the property. An ouster will not be deemed to have occurred unless the possessory cotenant, either through words or actions, unequivocally expresses to the nonpossessory cotenant that the property is being adversely possessed … . * * *

Plaintiff alternatively contends that, even if no ouster has been established, she and Lindine adversely possessed the property, given their exclusive use of it for more than two decades (see RPAPL 541). In support of this argument, plaintiff emphasizes that she and Lindine paid all taxes and expenses for the property, and made all necessary repairs to its structural improvements. Defendant never visited the property during the years that plaintiff and Lindine lived there permanently and defendant’s parents, it is claimed, only did so twice. Even accepting these allegations as true, “exclusive possession and the payment of maintenance expenses by a [possessory] cotenant are[, standing alone,] insufficient to establish a claim of right for purposes of adverse possession as against a cotenant” … . Lindine v Iasenza, 2015 NY Slip Op 06275, 3rd Dept 7-23-15

 

,

Because Prior Mortgage Foreclosure Action Had Been Abandoned Plaintiff Was Not Entitled to Dismissal of the Instant Action Pursuant to Real Property Actions and Proceedings Law (RPAPL) 1301(3) (Which Prohibits More than One Such Action at a Time)

The Second Department determined Real Property Actions and Proceedings Law (RPAPL) 1301(3) did not require dismissal of plaintiff’s foreclosure action.  Although the statute prohibits more than one action to recover a mortgage debt at a time, the pending action had been abandoned (although not formally discontinued). Therefore plaintiff’s action was viable:

RPAPL 1301(3) provides that “[w]hile [an] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought.” The purpose of this statute is to protect the mortgagor “from the expense and annoyance” of simultaneously defending against two independent actions to recover the same mortgage debt … . Courts have recognized that this statute “should be strictly construed since it is in derogation of a plaintiff’s common-law right to pursue the alternate remedies of foreclosure and recovery of the mortgage debt at the same time” … .

Under the circumstances of this case, the Supreme Court properly determined that the defendant John Conlin was not entitled to dismissal of the complaint pursuant to RPAPL 1301(3). The record supports the conclusion that the plaintiff’s assignor, the former mortgagee, effectively abandoned its prior action to foreclose the mortgage because its status as a junior mortgagee made it improbable that foreclosure would satisfy the underlying debt. Although the foreclosure action was not formally discontinued, the effective abandonment of that action is a “de facto discontinuance” which militates against dismissal of the present action pursuant to RPAPL 1301(3) … . Old Republic Natl. Tit. Ins. Co. v Conlin, 2015 NY Slip Op 04826, 2nd Dept 6-10-15

 

, ,

Where Proof of the Fair Market Value of Foreclosed Property (Offered in Support of a Motion for a Deficiency Judgment) Is Insufficient, Rather than Deny the Motion Outright, the Court Should Direct the Bank to Submit Additional Proof

The Court of Appeals, in a full-fledged opinion by Judge Pigott, determined Supreme Court properly failed to award a post-foreclosure-sale deficiency judgment to the bank because the bank’s proof of the fair market value of the foreclosed property, although uncontested, was insufficient.  However, Supreme Court should have allowed the bank to present additional proof establishing the fair market value:

RPAPL 1371 (2) directs that, when a lender makes a motion for a deficiency judgment,

“the court, whether or not the respondent appears, shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date such premises were bid in at auction or such nearest earlier date as there shall have been any market value thereof and shall make an order directing the entry of a deficiency judgment” … .

This provision is a directive that a court must determine the mortgaged property’s “fair and reasonable market value” when a motion for a deficiency judgment is made. As such, when the court deems the lender’s proof insufficient in the first instance, it must give the lender an additional opportunity to submit sufficient proof, so as to enable the court to make a proper fair market value determination. * * *

It is, of course, within the court’s discretion to elucidate the type of proof it requires so it can render a proper determination as to fair market value. The court may also order a hearing if it deems one necessary. In proceedings that are governed by section 1371, the court is in the best position to determine the type of proof that will allow it to comply with the directives of that section. Lenders seeking deficiency judgments, however, must always strive to provide the court with all the necessary information in their first application.  Flushing Sav. Bank, FSB v Bitar, 2015 NY Slip Op 04678, CtApp 6-4-15

 

,

Premises Clause Prevails Over Habendum Clause in a Deed/Failure to Expressly Label Parties and Include the Parties’ Addresses Does Not Invalidate a Deed

The Third Department determined that where there is a conflict between the premises clause and the habendum clause in a deed, the premises clause prevails.  Here the premises clause clearly indicated the creation of a life estate with the remainder interest going to decedent’s only children.  The habendum clause indicated the decedent conveyed the property to “[defendant] and assigns forever.”  The court also noted that the failure to label the parties and include the parties’ addresses in a deed does not invalidate the deed, although it may preclude recording of the deed:

…[T]he rules of construction applicable to deeds provide that where there is a conflict between the provisions set forth in the premises clause and those in the habendum clause relative to the extent of the conveyance, the premises clause will control, absent a clear indication of a contrary intent elsewhere in the deed … . Here, the premises clause provides that the remainder interest in the property is conveyed to plaintiffs, and nothing in the deed other than the habendum clause suggests that decedent had a contrary intent. …

Contrary to defendant’s assertion, Real Property Law § 258 did not require the deed to expressly label plaintiffs as parties or to include their addresses. The statute does not mandate the use of the deed formats that it sets forth, but instead provides that “this section does not prevent or invalidate the use of other forms” (Real Property Law § 258). Although the failure to include a party’s address may prevent a deed from being recorded, it does not operate to invalidate the underlying conveyance … . Basile v Rose, 2015 NY Slip Op 03213, 3rd Dept 4-16-15

 

,

Second Foreclosure Action Not Prohibited Where First Is Not Pending and Did Not Result in a Judgment

Reversing Supreme Court, the Second Department determined Real Property Actions and Proceedings Law (RPAPL 1371 (3)) must be strictly construed and, by its terms, the statute did not prohibit the plaintiff bank from instituting a second foreclosure proceeding.  The first proceeding had been settled and discontinued and no judgment had been entered:

…[T]he instant action was not barred by RPAPL 1301(3). Pursuant to RPAPL 1301, ” [t]he holder of a note and mortgage may proceed at law to recover on the note or proceed in equity to foreclose on the mortgage, but must only elect one of these alternate remedies'” … . “The purpose of the statute is to avoid multiple lawsuits to recover the same mortgage debt” … . Courts have recognized that “this statute is to be strictly construed since it is in derogation of a plaintiff’s common-law right to pursue the alternate remedies of foreclosure and recovery of the mortgage debt at the same time'” … . RPAPL 1301(3) provides that “[w]hile [an] action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought” (emphasis added). However, where a “foreclosure action is no longer pending and did not result in a judgment in the plaintiff’s favor, the plaintiff is not precluded from commencing a separate action” without leave of the court … . Here, the prior foreclosure action was settled and discontinued, without the entry of any judgment. Since the foreclosure action was not pending at the time the Bank commenced the instant action to recover on the guaranty and no judgment was entered for the Bank, RPAPL 1301(3), which must be strictly construed …, is not applicable … . Hometown Bank of Hudson Val. v Belardinelli, 2015 NY Slip Op 02732, 2nd Dept 4-1-15

 

Question of Fact Re: the “Hostility” Element of a Prescriptive Easement

In finding that the prescriptive easement cause of action should not have been dismissed, the Third Department explained the proof requirements:

A party claiming a prescriptive easement must show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years … . Although the element of hostility is presumed upon a showing of the other elements, where “the relationship between the parties is one of neighborly cooperation and accommodation,” no such presumption arises and, rather, permission will be inferred … . “Generally, the question of implied permission is one for the factfinder to resolve” … .

Here, the evidence submitted on the summary judgment motions indicates that a neighborly relationship existed between plaintiff, individually, the Trust’s tenants and defendants’ predecessors in title. However, inasmuch as there is no evidence of express permission granted to use defendants’ property, and the relevant parties are not “related by blood or part of a select group of friends,” summary judgment dismissing the claim for a prescriptive easement on the ground that plaintiff was unable to establish hostility was not warranted … . Gulati v O’Leary, 2015 NY Slip Op 01693, 3rd Dept 2-26-15

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy