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PETITION SEEKING TRANSFER OF REAL PROPERTY FROM DECEDENT TO PETITIONER BY REFORMATION OF THE DEED OR A CONSTRUCTIVE TRUST, AS WELL AS THE DISTRIBUTION OF TRUST ASSETS TO DECEDENT’S GRANDCHILDREN, AS OPPOSED TO DECEDENT’S SURVIVING DESCENDANTS, PROPERLY DENIED (THIRD DEPT).

The Third Department determined Surrogate’s Court properly denied the petition which sought proceeds from the sale of real property in decedent’s name and a distribution from a trust for the educational expenses for decedent’s grandchildren:

According to the petition, petitioner had contributed funds to purchase the lots and paid all expenses associated therewith. Petitioner requested either reformation of the deeds or the imposition of a constructive trust. In the second proceeding, petitioner sought a decree authorizing a distribution from decedent’s testamentary trust to pay for the educational expenses of the grandchildren. …

[Re: reformation of the deed for the real property,] [g]iven that petitioner did not establish, or even allege, that there was fraud involved, she failed to establish unilateral mistake where the showing of fraud is required … . To claim that there was mutual mistake, it must be established that “the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement” … . Here, petitioner failed to show that there was an oral agreement that the vacant lots would be owned as tenants by the entirety … . …

[Re: a constructive trust for the real property,] … although there was a confidential relationship between petitioner and decedent due to their marital status, the record does not reveal that there was a promise that the two would jointly own the four vacant lots, that petitioner transferred monies to purchase the properties in reliance of that promise or that decedent’s enrichment was unjust as a result … . …

Petitioner asserts that the word “use” supports her claim that decedent intended to provide the trustees with broad discretion that allows the distribution of the trust to be used for the grandchildren’s educational expenses. However, when gleaning decedent’s intent from the entirety of the will, the word “use” does not give unbridled discretion to the trustees to distribute the income for such purpose. Rather, when considering that the will provides that decedent’s descendants who survive petitioner receive the remainder of the trust at the time of her death, it may be gleaned that it was not decedent’s intent that the trust provide for the grandchildren’s educational expenses during petitioner’s lifetime … . Matter of Husisian, 2020 NY Slip Op 06188, Third Dept 10-29-20

 

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PLAINTIFF ENTITLED TO AN EQUITABLE LIEN ON REAL PROPERTY WHICH WAS IDENTIFIED BUT NOT DESCRIBED IN THE MORTGAGE WHICH HAD BEEN ASSIGNED TO PLAINTIFF (SECOND DEPT).

The Second Department determined plaintiff bank was entitled to an equitable lien on real property. The mortgage secured by the property had been assigned to plaintiff but the mortgage did not include a description of the property:

… [T]he plaintiff commenced the instant action seeking, inter alia, an equitable mortgage on the property. The complaint noted that the mortgage failed to include a description of the property, and thus that the plaintiff’s security interest in the property was imperiled. …

“New York law allows the imposition of an equitable lien if there is an express or implied agreement that there shall be a lien on specific property” … . “While [a] court will impose an equitable mortgage where the facts surrounding a transaction evidence that the parties intended that a specific piece of property is to be held or transferred to secure an obligation, it is necessary that an intention to create such a charge clearly appear from the language and the attendant circumstances” … .

Here, the documentary evidence submitted by the plaintiff sufficiently established the existence of the loan, the intent that it be secured by the property, and the debtor’s obligation to satisfy the debt by a date certain … . U.S. Bank N.A. v Alleyne, 2020 NY Slip Op 06166, Second Dept 10-28-20

 

A SUBSEQUENT DEED INCLUDING THE EASEMENT WAS A VALID CORRECTION DEED; THE STRANGER TO THE DEED RULE DID NOT APPLY BECAUSE THE DEEDS WITH THE EASEMENT CAME FROM THE SAME GRANTOR; THE EASEMENT WAS THEREFORE VALID AND DEFENDANTS SHOULD NOT HAVE BEEN ENJOINED FROM CLEARING IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a deed was correction deed which included an easement not mentioned in the prior deed. The Second Department also held that the “strange to the deed” rule did not apply because the deeds with the easement came from the same grantor. Therefore the easement was enforceable and defendants should not have been enjoined from clearing trees and other obstructions from the walkway:

… [A]lthough the 1972 deed does not use the phrase “correction deed” or similar phrases, and it does not reference the 1971 deed or the prior conveyance, the 1972 deed is a deed of correction that superseded the 1971 deed … . * * *

We disagree with the Supreme Court’s determination that the easement was void ab initio under the stranger to the deed rule … . … Since the dominant Lots … and the servient … shared a common grantor at the time the reservation was made, the stranger to the deed rule does not apply … . Garson v Tarmy, 2020 NY Slip Op 06104, Second Dept 10-28-20

 

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DEFENDANT’S HOME WAS CONSTRUCTED ABOUT EIGHT FEET FROM THE PROPERTY LINE VIOLATING THE COVENANT OR RESTRICTION REQUIRING TEN FEET; PLAINTIFF, AFTER A BALANCING OF THE EQUITIES, WAS NOT, HOWEVER, ENTITLED TO EQUITABLE RELIEF (FOURTH DEPT).

The Fourth Department determined the defendant had violated a covenant or restriction imposed on property owners in a subdivision, but that plaintiff was not entitled to equitable relief. Defendant had constructed the home about eight feet from the property line and the covenant or restriction required ten feet:

… [D]efendant knew, or should have known, of the side setback violation on the right side, yet he chose to construct his house in disregard of the fourth paragraph of the covenants and restrictions, defendant did not act in good faith with respect to that violation, and the hardship was self imposed … . … [E]nforcement of the restriction would have little benefit to plaintiff inasmuch as the violation had no impact on the value of plaintiff’s home, the violation did not detract from any neighbor’s view of the lake, and the violation occurred on the side of defendant’s property that was not adjacent to another residential lot. A balancing of the equities under all the circumstances of the case established that plaintiff was not entitled to injunctive relief for the right side lot line violation … . Kleist v Stern, 2020 NY Slip Op 05652, Fourth Dept 10-9-20

 

NATURE OF AN INGRESS AND EGRESS EASEMENT EXPLAINED (SECOND DEPT).

The Second Department discussed the elements of an easement for ingress and egress only:

“Express easements are governed by the intent of the parties” … . “As a [result], where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder” … . “Indeed, an owner of land that is burdened by an express easement for ingress and egress ‘may narrow it, cover it over, gate it or fence it off, [as] long as the easement holder’s right of passage is not impaired'” … . Panday v Allen, 2020 NY Slip Op 05519, Second Dept 10-7-20

 

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A CAUSE OF ACTION MAY BE DISMISSED PURSUANT TO CPLR 3211 (a) (4) BECAUSE IT SEEKS THE SAME RELIEF AS A PENDING ACTION INVOLVING THE SAME PARTIES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a cause of action should have been dismissed pursuant CPLR 3211 (a) (4) because it involved the same parties and sought the same relief as a pending action. The actions involved common charges for condominiums:

Pursuant to CPLR 3211(a)(4), a party may move to dismiss a cause of action on the ground that “there is another action pending between the same parties for the same cause of action in a court of any state or the United States.” “‘It is not necessary that the precise legal theories presented in the first action also be presented in the second action as long as the relief . . . is the same or substantially the same'” … . “‘The critical element is that both suits arise out of the same subject matter or series of alleged wrongs'” … .

We disagree with the Supreme Court’s exercise of its discretion in denying that branch of [the] cross motion which was for relief pursuant to CPLR 3211(a)(4). The … [actions] arise out of the same events, and involve overlapping questions of law, namely, the authority of the Board to charge … the increased common charges and assessments. The business judgment rule does not shield a condominium board’s acts of “bad faith and self-dealing” … . … [T]he resolution of [the] causes of action against the Board, which include, among other things, a request for a judgment declaring that the Board’s common charge increases were not valid, may moot the instant action to foreclose upon the common charge liens … . Further, absent relief under CPLR 3211(a)(4), [there would be] duplicative litigation and the prospect of inconsistent results. Board of Mgrs. of the 1835 E. 14th St. Condominium v Singer, 2020 NY Slip Op 05026, Second Dept 9-23-20

 

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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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