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THE 1896 DEED FROM THE PLAINTIFF WHICH TRANSFERRED THE PROPERTY TO DEFENDANT DIOCESE WITH THE LIMITATION THAT IT BE USED AS A CHURCH CREATED A POSSIBILITY OF REVERTER WHICH TRANSFERRED THE PROPERTY BACK TO THE PLAINTIFF WHEN THE PROPERTY STOPPED BEING USED AS A CHURCH IN 2015 (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the 1896 deed to defendant Catholic diocese, which limited the use of the property to serving as a church, conveyed a fee on limitation with a possibility of reverter, which transferred the property to back to plaintiff when the diocese stopped using the property as a church in 2015:

As plaintiff still held a possibility of reverter, resolution of the RPAPL article 15 action hinges upon whether defendant violated the limitation restricting the use of the property to church purposes. The parties’ joint stipulation of facts includes the 2015 decree from the Bishop of Ogdensburg that relegated the church “to profane but not sordid use,” and indicated that parishioners would be served by a nearby parish. … The stained-glass windows and the altar were later removed, leaving only the pews. Under the canon law of the Roman Catholic Church, “if a church cannot be used in any way for divine worship and there is no possibility of repairing it,” it can be relegated to profane but not sordid use … . “Profane use means use for purposes other than a Roman Catholic worship service,” and “sordid” limits that use, prohibiting any use that is disrespectful to the Catholic Church … . Contrary to defendant’s contentions, we find that defendant’s use of the property for church purposes ceased pursuant to the 2015 decree, thus violating the limitation in the 1896 deed. Accordingly, it reverted to plaintiff, which now owns the property in fee simple. Paul Smith’s Coll. of Arts & Sciences v Roman Catholic Diocese of Ogdensburg, 2020 NY Slip Op 05012, Third Dept 9-17-20

 

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PLAINTIFF RAISED QUESTIONS OF FACT ABOUT WHETHER A CONSTRUCTIVE TRUST ON REAL PROPERTY HAD BEEN CREATED, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiff had raised questions of fact about whether a constructive trust on real property had been created:

The defendant established his prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting his affidavit denying the existence of any agreement with the plaintiff regarding ownership or an interest by the plaintiff in the premises, and denying that the plaintiff performed repairs to the premises. However, in opposition, the plaintiff submitted the affidavits of two nonparties who each attested, inter alia, to admissions made by the defendant that the plaintiff was an equal owner of the premises with the defendant. Thus, the affidavits submitted by the parties raise triable issues of fact as to whether the parties, who are in-laws by virtue of the defendant’s marriage to the plaintiff’s daughter and who lived with each other for several years prior to the defendant moving out, orally agreed to a shared ownership of the subject premises, and as to whether the plaintiff relied on that agreement by paying for repairs and expenses on the home for the benefit of the defendant. Accordingly, the defendant’s motion for summary judgment should have been denied … . Abehsera v Saldin, 2020 NY Slip Op 04723, Second Dept 8-26-20

 

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PETITION FOR A LICENSE PURSUANT TO RPAPL 881 TO ENTER A CONDOMINIUM TO MAKE REPAIRS PROPERLY GRANTED (SECOND DEPT).

The Second Department determined the petition for a license pursuant to Real Property Actions and Proceedings Law (RPAPL) 881 to temporarily enter a condominium to make repairs was properly granted:

RPAPL 881 allows the owner of “real property” to petition for a license to enter the “premises” of an adjoining owner when such entry is necessary for making improvements or repairs to the petitioner’s property and the adjoining owner has refused such access … . RPAPL 881 applies to “real property,” defined as “lands, tenements and hereditaments” (Real Property Law § 2). Similarly, Real Property Law § 339-g provides that “[e]ach unit, together with its common interest, shall for all purposes constitute real property.” Thus, the petitioners’ condominium unit constitutes “real property” within the meaning of RPAPL 881. …

… [W]e agree with the Supreme Court’s determination to grant that branch of the petition which was pursuant to RPAPL 881 for a license to temporarily access the appellants’ unit. The court directed that access be limited to 10 consecutive days, that the petitioners return the unit to its original condition, that the appellants be financially protected by the naming of the appellants as additional insureds on the relevant construction insurance policy, that the petitioners pay the appellants a license fee of $100 per day, and that the petitioners indemnify the appellants for any loss … . Matter of Voron v Board of Mgrs. of the Newswalk Condominium, 2020 NY Slip Op 04747,  Second Dept 8-26-20

 

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DEFENDANTS DID NOT REQUEST THAT PLAINTIFFS GRANT A LICENSE FOR EXCAVATION WORK NEXT DOOR TO PLAINTIFFS’ BUILDING; NYC BUILDING CODE 3309.4 IMPOSES STRICT LIABILITY FOR DAMAGE CAUSED BY SUCH EXCAVATION WORK; OVERRULING PRECEDENT, PLAINTIFFS DID NOT NEED TO SHOW EITHER THAT A LICENSE WAS GRANTED OR THAT PLAINTIFFS TOOK OTHER STEPS TO PROTECT THEIR PROPERTY TO BE ENTITLED TO SUMMARY JUDGMENT FOR DEFENDANTS’ VIOLATION OF BUILDING CODE SECTION 3309.4 (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, overruling precedent, determined plaintiffs were entitled to summary judgment in this action alleging damage to plaintiffs’ building caused by defendants’ excavation for a new building next door. The New York City Building Code (BC) section 3309.4 imposes strict liability for damage caused by such excavation work. Here the defendants did not ask plaintiffs for a license in accordance with BC 3309.4 and no license was granted by the plaintiffs. Prior decisions held a plaintiff must show it granted a license for the work, or otherwise took steps to protect the property, before the plaintiff would be entitled to summary judgment on an action alleging a violation of BC 33309.4. Those decisions should no longer be followed:

We hold that where, as here, a plaintiff presents evidence showing, prima facie, that no request for a license was made to the plaintiff in accordance with section BC 3309 before the excavation work began, a plaintiff moving for summary judgment on the issue of liability on a cause of action alleging a violation of section BC 3309.4 need not demonstrate, prima facie, that the plaintiff granted the requisite license, or, in the absence of a license, what, if any, actions it took to protect its premises. 211-12 N. Blvd. Corp. v LIC Contr., Inc., 2020 NY Slip Op 04134, Second Dept 7-22-20

 

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PLAINTIFF PRESENTED CLEAR AND CONVINCING EVIDENCE SUPPORTING THE CAUSES OF ACTION AGAINST A NEIGHBOR FOR TRESPASS, PRIVATE NUISANCE, AND VIOLATION OF THE CIVIL RIGHTS LAW; THE MOTION FOR A PRELIMINARY INJUNCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for a preliminary injunction in this dispute between neighbors should have been granted. Plaintiff alleged the neighbor repeatedly damaged and defaced plaintiff’s property and installed a surveillance camera aimed at plaintiff’s property. The Fourth Department went through the elements required for issuance of a preliminary injunction and described the proof offered in support of the trespass, private nuisance and Civil Rights Law causes of action:

Plaintiff’s supplemental affidavit and photographs submitted in support of the motion demonstrate that Nichols repeatedly drove across her lawn and blew snow with his snowblower onto the side of plaintiff’s house, allegedly causing damage to her awning and fence. Both events were intentional invasions of plaintiff’s interest in the exclusive possession of her land. Furthermore, although “an action for trespass over the lands of one property owner may not be maintained where the purported trespasser has acquired an easement of way over the land in question” … , plaintiff established that the acts allegedly committed by Nichols on the easement exceeded the scope of the easement and did not constitute a reasonable use of his interest in the easement … . Thus, plaintiff demonstrated a likelihood of success on the merits of her trespass claim. …

The evidence submitted by plaintiff established that Nichols drove across plaintiff’s lawn, used a snowblower to blow snow onto her house, tampered with and removed her property markers, parked his vehicle so as to obstruct plaintiff’s driveway, drove on the freshly paved driveway and left tire tracks in the asphalt, and repeatedly painted a white line across the driveway. That conduct exceeds the scope of the easement and may fairly be characterized as a substantial interference with plaintiff’s use and enjoyment of her property. Thus, plaintiff demonstrated a likelihood of success on the merits of her private nuisance claim.

Plaintiff’s affidavit and video evidence also submitted on the motion demonstrate that Nichols threatened to install a “150-foot night vision camera” in his backyard and to point it directly into plaintiff’s backyard and at her living room. As Nichols installed the surveillance camera, he stated to plaintiff, “It’s gonna look right in your fucking living room! . . . You’re on camera bitch! . . . Smile for the camera bitch!” Thus, plaintiff also demonstrated a likelihood of success on the merits of her claim under Civil Rights Law § 52-a. Cangemi v Yeager, 2020 NY Slip Op 04023, Fourth Dept 7-17-20

 

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CALIFORNIA NONPROFIT WHICH PURCHASED PROPERTY IN THE TOWN OF ISLIP WAS ENTITLED TO AN EXEMPTION FROM PROPERTY TAX; HOWEVER IF A PORTION OF THE PROPERTY IS USED FOR OTHER PURPOSES, THE EXEMPTION WOULD BE PARTIAL (SECOND DEPT).

The Second Department determined the California nonprofit corporation which places international students with families in the United State was entitled to tax exempt status with respect to real estate purchased in the Town of Islip, New York. However, with respect to a building on the property, the exempt status would apply only to those portions of the building used by the corporation and would not apply to portions leased for other purposes:

Under RPTL 420-a, even when the property owner is shown to have an exempt purpose, the owner must still demonstrate that the property is used exclusively for that exempt purpose … . Within the context of § 420-a, whether the property is being used exclusively for statutory exempt purposes depends on whether the primary use of the property is in furtherance of permitted purposes … .

Here, it is undisputed that the petitioner uses the property as its headquarters, in furtherance of its exempt purpose. However, the property is improved with a two-story office building measuring more than 17,700 square feet, and there are no record facts as to what portion of the building is actually used by the petitioner in furtherance of its purpose … . In addition, the petitioner indicated on its application that it plans to lease 2,500 square feet of the property to a tenant. RPTL 420-a(2) provides that “[i]f any portion of such real property is not so used exclusively to carry out thereupon one or more of such purposes but is leased or otherwise used for other purposes, such portion shall be subject to taxation and the remaining portion only shall be exempt,” unless the tenant and its use of the property is also exempt from taxation. Therefore issues of fact exist as to whether the petitioner is entitled to a full or partial tax exemption for the property for the tax year 2018/2019. Matter of International Student Exch., Inc. v Assessors Off. of the Town of Islip, 2020 NY Slip Op 03911, Second Dept 7-15-20

 

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THE CERTIFICATE OF PUBLIC CONVENIENCE AND NECESSITY ISSUED BY THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) EXEMPTED THE GAS PIPELINE COMPANY FROM ANY REVIEW REQUIREMENTS OF THE EMINENT DOMAIN PROCEDURE LAW (EDPL); THE COMPANY WAS FREE TO EXERCISE EMINENT DOMAIN OF THE LAND IN DISPUTE (CT APP).

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Stein, over a two-judge dissent, determined that the certificate of public convenience and necessity issued to petitioner, National Fuel Gas Supply, for construction of a gas pipeline, exempted National Fuel from any requirements of the Eminent Domain Procedure Law (EDPL). Therefore National Fuel did not need to comply with the notice and hearing requirements of the EDPL before exercising eminent domain of the land in dispute:

In 2017, the Federal Energy Regulatory Commission issued a certificate of public convenience and necessity to petitioner National Fuel Gas Supply for its proposed construction of a 99-mile natural gas pipeline spanning from Pennsylvania to Western New York. … [t]his certificate …—which did not condition National Fuel’s eminent domain power on receipt of a water quality certification and which remained valid and operative at all relevant times despite the New York State Department of Environmental Conservation’s intervening denial of National Fuel’s application for such a certification—exempted National Fuel from the public notice and hearing provisions of article 2 of the Eminent Domain Procedure Law (EDPL) in accordance with EDPL 206 (A). …

The question before us distills to whether the certificate of public convenience and necessity issued by the Federal Energy Regulatory Commission (FERC) to National Fuel satisfies EDPL 206 (A) so as to entitle National Fuel to exercise eminent domain over the land in dispute without undertaking additional review of the pipeline’s public benefit. If satisfied, EDPL 206 (A) excuses compliance with various provisions of EDPL article 2 where a proposed condemnor has successfully completed a review of the project’s public benefit and use before a state, federal, or local agency. * * *

… [W]here, as here, a gas company holds a valid certificate of public convenience or necessity from FERC for the proposed construction of a pipeline and that certificate places no relevant conditions on the eminent domain power and has not been stayed or revoked by FERC or a federal court properly reviewing its issuance, compliance with article 2 is excused under EDPL 206 (A). Matter of National Fuel Gas Supply Corp. v Schueckler, 2020 NY Slip Op 03563, CtApp 6-25-20

SUMMARY OF THE FOURTH DEPARTMENT DECISION REVERSED BY THE COURT OF APPEALS ON JUNE 25, 2020

ALTHOUGH THE FEDERAL ENERGY REGULATORY COMMISSION (FERC) APPROVED THE GAS PIPELINE, THE STATE DID NOT ISSUE A WATER QUALITY CERTIFICATION (WQC) FOR THE PROJECT, THEREFORE THE PIPELINE COMPANY CAN NOT SEEK EASEMENTS OVER PRIVATE LAND PURSUANT TO THE EMINENT DOMAIN PROCEDURE LAW (EDPL) TO INSTALL THE PIPELINE (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice NeMoyer, over a two-justice dissent, considering a matter of first impression, reversing Supreme Court, determined that a gas supply company could not acquire easements over private property by eminent domain for the installation of a pipeline for which the state denied a permit:

In February 2017, the FERC [Federal Energy Regulatory Commission] granted petitioner’s application for a certificate of public convenience and necessity to construct and operate a 97-mile natural gas pipeline from Pennsylvania into western New York. The pipeline’s proposed route travels directly across respondents’ land … . Within the voluminous certificate, the FERC found that petitioner’s “proposed [pipeline] project is consistent with the Certificate Policy Statement,” i.e., the public interest. “Based on this finding and the environmental review for the proposed project,” the FERC further found “that the public convenience and necessity require approval and certification of the project.” …

… [T]he New York State Department of Environmental Conservation (DEC) denied petitioner’s application for a WQC [water quality certification]. The WQC application, held the DEC, “fails to demonstrate compliance with New York State water quality standards.” Petitioner has taken various steps to challenge the WQC denial, including the filing of a petition for judicial review in the Second Circuit pursuant to 15 USC § 717r (d). It appears that those challenges have not yet been finally resolved. It is undisputed, however, that if the WQC denial is ultimately upheld, the pipeline cannot be built … . * * *

… [P]etitioner is trying to expropriate respondents’ land in furtherance of a pipeline project that, as things currently stand, cannot legally be built. Such an effort turns the entire concept of eminent domain on its head. If the State’s WQC denial is finally annulled or withdrawn, then petitioner can file a new vesting petition. But until that time, petitioner cannot commence a vesting proceeding to force a sale without going through the entire EDPL [Eminent Domain Procedure Law] article 2 process. Matter of National Fuel Gas Supply Corp. v Schueckler, 2018 NY Slip Op 07550, Fourth Dept 11-9-18

 

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THE TITLE INSURANCE POLICY GAVE THE INSURER THE RIGHT TO PROSECUTE A TITLE CLAIM BUT NOT THE OBLIGATION TO PROSECUTE A TITLE CLAIM; THEREFORE PLAINTIFF’S COMPLAINT ALLEGING DEFENDANT BREACHED THE POLICY BY NOT PROSECUTING THE CLAIM SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s action against a title insurance company should have been dismissed based upon the language of the policy. Plaintiff had requested that defendant take action against a party plaintiff believed was using plaintiff’s land. Defendant refused. The title insurance policy gave defendant the right but not the obligation to bring such an action:

A dismissal of a complaint pursuant to CPLR 3211 (a) (1) is warranted if “the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law” … . Plaintiffs alleged that defendant breached section 5 (b) of the policy, which provides, in relevant part, that defendant “shall have the right . . . to institute and prosecute any action or proceeding or to do any other act that in its opinion may be necessary or desirable to establish the Title, as insured, or to prevent or reduce loss or damage to the Insured.” Defendant’s “right” to prosecute an action is not equivalent to an “obligation” … . Inasmuch as the policy submitted by defendant on the motion did not require defendant to prosecute the action against the property owner, defendant is entitled to dismissal of the complaint insofar as it sought attorneys’ fees and costs that plaintiffs had already incurred for the prosecution of that action … . We further conclude that defendant is entitled to a declaration that it is not obligated to pay for the attorneys’ fees and costs necessary to prosecute that action in the future … . Irma Straus Realty Corp. v Old Republic Natl. Tit. Ins. Co., 2020 NY Slip Op 03307, Fourth Dept 6-12-20

 

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THE HOLDER OF A DEED INTENDED AS SECURITY IN THE NATURE OF A MORTGAGE MUST PROCEED BY FORECLOSURE TO EXTINGUISH THE MORTGAGOR’S INTEREST; HERE THE SUBSEQUENT GOOD FAITH PURCHASERS OF THE PROPERTY WERE ENTITLED TO SUMMARY JUDGMENT DISMISSING THE MORTGAGEE’S CAUSES OF ACTION SEEKING RESCISSION OF THEIR DEED AND A DECLARATION THEIR DEED WAS NULL AND VOID (SECOND DEPT).

The Second Department determined a deed which facially appears to evidence an absolute conveyance was actually intended as security in the nature of a mortgage. The holder of such a deed (here American Lending) must proceed by foreclosure to extinguish the mortgagor’s interest. The subsequent purchasers of the property (the Romond defendants) were good faith purchasers. Therefore the Romond defendants were entitled to dismissal of American Lending’s complaint seeking rescission of the Romond deed and a declaration the deed was null and void:

In 2009, the defendant Dana Grigg sought to purchase certain property … . When financing for the transaction fell through, Grigg entered into an … agreement with the plaintiff, American Lending Corp. … to borrow … $385,000. The terms of the loan, which were memorialized in a note, included a provision that after 90 days, if the loan had not been repaid in full, American Lending would be authorized to file a joint deed in the property records and to “seek a Summary Judgment instead of following a regular foreclosure proceedings [sic].” In June 2009, Grigg purchased the subject property and executed … a deed from himself to himself and American Lending (… the joint deed). Grigg subsequently defaulted under the terms of the loan. * * *

Real Property Law § 320 provides, in pertinent part, that a “deed conveying real property, which, by any other written instrument, appears to be intended only as a security in the nature of a mortgage, although an absolute conveyance in terms, must be considered a mortgage” … .  … “The holder of a deed given as security must proceed in the same manner as any other mortgagee—by foreclosure and sale—to extinguish the mortgagor’s interest” … .

… [T]he Romond defendants established … that the joint deed was given as security for the loan from American Lending to Grigg. Therefore, pursuant to Real Property Law § 320, the joint deed must be considered a mortgage, and American Lending’s sole remedy for Grigg’s breach of its terms was to commence an action sounding in foreclosure. Moreover, under the circumstances at bar, the Romond defendants established that they were good faith purchasers of the subject property (see Real Property Law § 290 …). American Lending Corp. v Grigg, 2020 NY Slip Op 03211, Second Dept 6-10-20

 

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PUBLIC VERSUS PRIVATE NUISANCE EXPLAINED; BECAUSE DEFENDANTS SOLD THEIR PROPERTY, THE APPEAL RELATED TO THE INJUNCTION CAUSE OF ACTION WAS MOOT (THIRD DEPT).

The Third Department determined plaintiffs’ private nuisance cause of action should not have been dismissed, but the public nuisance cause of action was properly dismissed. The Third Department noted that, because defendants’ property had been sold, the injunction aspect of the case was moot. The defendants had put in a parking area and a retaining wall which plaintiffs’ alleged blocked their view of oncoming traffic making it dangerous for plaintiffs’ to pull out from their driveway:

Plaintiffs’ complaint alleges that defendants paved a significant area of their front yard and proceeded to park cars and trucks thereon, and, as a result, their view of oncoming traffic was significantly hindered when they used their driveway. As a consequence, they claimed that they suffered great anxiety, as they continually worried about being in a traffic accident. What plaintiffs can ultimately prove, or whether damages of this sort are recoverable, is not our concern when determining a motion to dismiss for failure to state a cause of action … . Rather, “the dispositive inquiry is whether plaintiffs have a cause of action and not whether one has been stated, i.e., whether the facts as alleged fit within any cognizable legal theory” … . Here, after applying the strict standards of a pre-answer motion to dismiss, we conclude that Supreme Court erred in dismissing plaintiffs’ cause of action for private nuisance.

… “A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large” … . Plaintiffs have not alleged that defendants interfered with the use of a public place or public rights. The complaint alleges that plaintiffs and the public (pedestrian, cyclist or motorist) are at risk of suffering a collision. “[W]here the claimed injury is common to the entire community, a private right of action is barred” … . Moreover, we find without merit plaintiffs’ claim that they suffer a special damage in that they will suffer liability as a result of any collision that might occur. Even were we to conclude that this claim is not completely speculative, the injury proposed by plaintiffs is not different in kind, but merely in degree, to that which may be suffered by the public as a whole. As such, it does not qualify as a “special injury” so as to allow plaintiffs to bring a public nuisance cause of action … . Duffy v Baldwin, 2020 NY Slip Op 02836, Third Dept 5-14-20

 

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