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ALTHOUGH THE EASEMENT WAS NOT RECORDED IN PLAINTIFF’S DIRECT CHAIN OF TITLE, IT WAS INDEXED UNDER A BLOCK AND LOT NUMBER SYSTEM, THEREFORE PLAINTIFF HAD CONSTRUCTIVE NOTICE OF THE EASEMENT AND WAS NOT A BONA FIDE PURCHASER (FIRST DEPT). ​

The First Department, in a detailed opinion by Justice Friedman, determined a reasonable title search would have turned up an easement on the subject property. Therefore, plaintiff was not a bona fide purchaser of the empty lot (57 Crosby). The interesting opinion is too detailed to fairly summarize here. The following excerpt provides the flavor of the reasoning:

The question presented … is whether plaintiff, when it purchased 57 Crosby in 2011, had constructive notice of the 1981 easement, notwithstanding that the indexing of the easement had not been changed by the City Register when 57 Crosby was subdivided from Lot 30 in 1984 and reassigned its previous designation of Lot 9.

… [T]he answer to the foregoing question does not turn on whether the 1981 easement would have been found in a search in 2011 of the direct chain of title to 57 Crosby. Almost 40 years ago, the Court of Appeals held that “the rule limiting constructive notice to recorded conveyances that are within the purchaser’s direct chain of title” does not apply “to instances in which the purchaser had access to a block and lot’ or tract indexing system,” such as the one in use in New York City … . … “[I]n counties using a block and lot’ indexing system, a purchaser is charged with record notice of all matters indexed under the block and lot numbers corresponding to the purchaser’s property, regardless of whether such information also appears in his or her direct chain of title” … . Thus, although … the 1981 easement was not recorded within plaintiff’s direct chain of title, that circumstance has no bearing on the outcome of this appeal … . Akasa Holdings, LLC v 214 Lafayette House, LLC, 2019 NY Slip Op 06447, First Dept 9-3-19

 

SUPREME COURT PROPERLY DISMISSED THE CLAIM THAT DEFENDANT VIOLATED THE RESTRICTIVE COVENANT CONCERNING THE HEIGHT OF HOUSES BECAUSE THE TERM ‘ONE AND A HALF STORIES’ WAS AMBIGUOUS AS TO HEIGHT; HOWEVER THE CLAIMS ALLEGING VIOLATION OF SETBACK RESTRICTIONS SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court and ordering a new trial, determined defendant’s motion for a directed verdict dismissing claims that defendant had violated certain restrictive covenants when defendant’s house was constructed should not have been granted. The court noted that plaintiff did not prove defendant violated the covenant restricting the height of a house to one and a half stories. The use of the term “stories” was deemed ambiguous as a measure of height. However the proof demonstrated violations of the required setbacks and Supreme Court should not have dismissed those claims because other properties in the subdivision were in violation or because the house was already built:

… “[T]he words not more than one and one-half stories in height’ are ambiguous in scope,” and because the defendants, who were seeking to enforce the covenant, “failed to present . . . clear and convincing proof with respect to what number of feet constitutes a story in height,’ the scope of the covenant is uncertain, doubtful, or debatable,’ thus rendering it unenforceable as applied to plaintiff’s residence” … . …

Although the court determined that there was a violation of at least one of the covenants and restrictions here, it granted the motion on the ground that plaintiff could not seek equitable relief because she did not seek such relief against other property owners within the subdivision regarding their alleged violations of the same covenants and restrictions. That was error. Plaintiff is “entitled to ignore inoffensive violations of the restriction[s] without forfeiting [her] right to restrain others which [she] find[s] offensive” … . Moreover, the court’s reluctance to grant equitable relief where, as here, the house has already been built was not a valid basis for granting defendant’s motion. Defendant “proceeded with construction of the [house] with knowledge of the restrictive covenants and of plaintiff[‘s] intention to enforce them” … . Kleist v Stern, 2019 NY Slip Op 05888, Fourth Dept 7-31-19

 

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PLAINTIFF BANK WAS ENTITLED TO AN ORDER REQUIRING THE COUNTY CLERK TO RECORD A MORTGAGE, THE ORIGINAL OF WHICH HAD ALLEGEDLY BEEN LOST; AN ATTORNEY AFFIDAVIT IS AN APPROPRIATE VEHICLE FOR THE SUBMISSION OF DOCUMENTS IN ADMISSIBLE FORM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff bank was entitled to an order requiring the county clerk to accept a copy of a mortgage for recording (the original allegedly had been lost and was never recorded). The Second Department further determined that an attorney affidavit was an appropriate vehicle for the submission of the documents to be recorded, which were in admissible form:

The plaintiff established its prima facie entitlement to judgment as a matter of law on the first cause of action, which sought an order directing the Suffolk County Clerk to accept a copy of the mortgage for recording. The County Clerk has a statutory duty that is ministerial in nature to record a written conveyance if it is duly acknowledged and accompanied by the proper fee (see Real Property Law §§ 290[3]; 291; County Law § 525[1]). “Accordingly, the Clerk does not have the authority to refuse to record a conveyance which satisfies the narrowly-drawn prerequisites set forth in the recording statute” … . Here, the copy of the mortgage submitted on the motion, which is notarized, was subject to recording … . Contrary to the Supreme Court’s determination, the complaint adequately stated a cause of action for this relief … , and the plaintiff’s failure to submit an affidavit of someone with personal knowledge of the facts was not fatal to the motion. The affidavit or affirmation of an attorney, even if he or she has no personal knowledge of the facts, may serve as the vehicle for the submission of acceptable attachments which provide evidentiary proof in admissible form, e.g., documents and transcripts … . JPMorgan Chase Bank, N.A. v Wright, 2019 NY Slip Op 05966, Second Dept 7-31-19

 

ADVERSE POSSESSION AFFIRMATIVE DEFENSE SHOULD HAVE BEEN DISMISSED IN THIS LAKE FRONT PROPERTY DISPUTE, THE USE OF THE LAND WAS PERMISSIVE, NOT HOSTILE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion to dismiss defendants’ adverse possession affirmative defense should have been granted. The disputed land is a so-called stub trail which allows access to a lake and which is owned by a third-party (Hillcrest). Defendants’ use and maintenance of the property was deemed permissive (i.e., not hostile) as the stub trails were to be used by all the property owners in the subdivision for lake access:

We agree with plaintiff that it met its initial burden on the cross motion of establishing as a matter of law that defendants’ use of the disputed property was not hostile and instead was permissive … , and defendants failed to raise a triable issue of fact in opposition … . The hostility element “is satisfied where an individual asserts a right to the property that is adverse to the title owner and also in opposition to the rights of the true owner’ ” … . ” Possession is hostile when it constitutes an actual invasion of or infringement upon the owner’s rights’ ” … . However, “[w]hen the entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner” … . “The purpose of the hostility requirement is to provide the title owner notice of the adverse claim through the unequivocal acts of the usurper’ ” … . …

The … deed demonstrated that defendants’ use of the disputed property was permissive pursuant to the terms of that deed, which allowed property owners around Rushford Lake to use the stub trail at issue that was owned by Hillcrest. The acts of defendants in mowing the lawn, removing weeds, adding fill to the area, and planting trees were fully consistent with the intent of the … deed, which was to allow property owners to use the trails and stub trails and improve them when needed. The acts of defendants did not give Hillcrest a cause of action in ejectment inasmuch as Hillcrest was required under the terms of the deed to allow property owners such as defendants to use and maintain the trail … . Parklands E., LLC v Spangenberg, 2019 NY Slip Op 05849, Fourth Dept 7-31-19

 

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PURCHASER OF A MARINA DEMONSTRATED THE PRIOR OWNER OBTAINED TITLE TO THE DISPUTED LAKE BOTTOM RIGHTS BY ADVERSE POSSESSION (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff, the purchaser of a marina, had demonstrated the prior owner of the marina had obtained ownership of the disputed lake bottom rights by adverse possession:

… [P]laintiff submitted, among other things, the affidavit of Donald Duso Jr., the grandson of [the prior owner]  and a current mechanic for plaintiff, the affidavit of Michael Damp, a member of plaintiff, and an aerial map depicting, among other things, the location of the moorings and floating dock within the claimed area. According to Donald Duso, he personally assisted with the installation of approximately 20 moorings and anchors in the claimed area between the early 1970s and 2005 … . From 1970 to 1975, six moorings were initially installed in the claimed area, which were specifically placed to create the “outer bounds or perimeter of the mooring field.”…  As the marina’s business grew, additional moorings were installed such that, by 2005, there were approximately 20 active moorings available for rent, with all but three or four of the moorings located within the claimed area. Each year, the marina seasonally rented the moorings to boat owners between April and October (hereinafter the boating season) and only those who paid the requisite rental fee were permitted to access or use the moorings. Since the early 1980s, the 14 to 20 active moorings in the claimed area were regularly maintained during the boating season, mooring anchors, ropes and balls were repaired as necessary, and the mooring field was kept clear of debris. Although the nature of this lake bottom property makes it inherently impractical to erect an enclosure (see RPAPL former 522), the perimeter of the mooring field and, in turn, the location of the claimed area were easily discernible based upon the visibility of the mooring balls attached to each mooring anchor, and became even more apparent when boats were actively moored thereto. LS Mar., LLC v Acme of Saranac, LLC, 2019 NY Slip Op 05617, Third Dept 7-11-19

 

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DEED MADE UNDER FALSE PRETENSES IS VOID AB INITIO RENDERING THE RELATED MORTGAGE INVALID; THE LAW OF THE CASE DOCTRINE DOES NOT PRECLUDE RECONSIDERING A MATTER WHERE THERE IS NEW EVIDENCE (FIRST DEPT).

The First Department, reversing Supreme Court, in this foreclosure action, determined a deed made under false pretenses was void ab initio and therefore the related mortgage was invalid. The court noted that the law of the case doctrine does not prohibit it from reconsidering a matter where there is subsequent evidence affecting the prior determination:

It is undisputed that nonparty Rapsil Corporation conveyed the same property to two different recipients, first, defendant Rafael Pantoja (who obtained a mortgage from CitiMortgage), and, second, a bona fide entity that transferred it to the Salazar defendants. Although the deed that conveyed the property from Rapsil to Pantoja was unacknowledged, which ordinarily would render it only voidable, because Pantoja controlled Rapsil, the deed was made under false pretenses and was therefore void ab initio … . Accordingly, the CitiMortgage mortgage was invalid as well (Weiss v Phillips, 157 AD3d 1, 10 [1st Dept 2017]).

This determination is not inconsistent with our prior related decisions … . In any event, the law of the case doctrine does not limit our power to reconsider issues “where there are extraordinary circumstances, such as subsequent evidence affecting the prior determination” … . CitiMortgage, Inc. v Pantoja, 2019 NY Slip Op 05481, First Dept 7-9-19

 

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QUESTION OF FACT WHETHER TOWN EASEMENTS ARE SUBJECT TO THE PUBLIC TRUST DOCTRINE SUCH THAT THE LAND CANNOT BE CONVEYED TO A DEVELOPER WITHOUT LEGISLATIVE APPROVAL; OPEN MEETINGS LAW WAS NOT VIOLATED BY POSTING RELEVANT DOCUMENTS ONLY SEVEN HOURS BEFORE THE TOWN MEETING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined there was a question of fact whether the  public trust doctrine applied to town easements such that the easements could not be conveyed to a developer without legislative approval. The court further held that the Open Meetings Law was not violated by posting relevant documents only seven hours before the town meeting:

… “[A] parcel of property may become a park by express provisions in a deed . . . or by implied acts, such as continued use [by the municipality] [*2]of the parcel as a park” … . “A party seeking to establish . . . an implied dedication and thereby successfully challenge the alienation of the land must show that (1) [t]he acts and declarations of the land owner indicating the intent to dedicate his [or her] land to the public use [are] unmistakable in their purpose and decisive in their character to have the effect of a dedication and (2) that the public has accepted the land as dedicated to a public use” … .

… [P]etitioner alleged in its petition-complaint that the Town Easements were part of the “Auburn Trail linear park” and that they were parkland for purposes of the public trust doctrine. In support of that part of each motion seeking to dismiss the second cause of action under CPLR 3211 (a) (1), respondents submitted the conveyances that created the Town Easements. Inasmuch as those instruments provided that the Town Easements were to be used as a “pedestrian pathway” for “public use” and required the Town to restore the easement property to “a park like condition” after construction of the pedestrian pathway, respondents’ own documentary evidence creates issues of fact whether there was an express or implied dedication of the Town Easements subject to the public trust doctrine. Thus, respondents failed to meet their burden of submitting documentary evidence that conclusively refuted petitioner’s allegations … . In addition, deeming the material allegations of the petition-complaint to be true, we conclude that “the allegations in the second cause of action presented a justiciable controversy sufficient to invoke the court’s power to render a declaratory judgment,” and thus respondents were not entitled to dismissal of that cause of action pursuant to CPLR 3211 (a) (7) … . Matter of Clover/Allen’s Cr. Neighborhood Assn. LLC v M&F, LLC, 2019 NY Slip Op 05280, Fourth Dept 6-28-19

 

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PLAINTIFF’S DISCOVERY REQUEST FOR INSPECTION AND EXPERT EXAMINATION OF DEFENDANTS’ PROPERTY IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED, PLAINTIFF ALLEGED DEFENDANTS DIVERTED WATER ONTO A PUBLIC ROAD WHICH FORMED A PATCH OF BLACK ICE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that plaintiff’s request to enter the Rizzetta defendants’ property to allow inspection and expert examination of the alleged diversion of water from the property onto a public road should have been granted. Plaintiff was injured riding his bicycle when he hit a patch of black ice, slipped and fell:

CPLR 3120(1)(ii) provides that a party may serve another party with notice “to permit entry upon designated land or other property in the possession, custody or control of the party served for the purpose of inspecting, measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designated object or operation thereon.” Motions seeking such discovery “are routinely granted when a central issue in the case is the condition of the real property under inspection” … . …

Here, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s motion. A central issue in this litigation is the source of the water which allegedly caused the injury-producing ice condition. An owner of private land abutting a public roadway may be liable for injuries sustained from a fall on ice on the public roadway, if the “ice condition was caused and created by the artificial diversion of naturally flowing water from the private landowner’s property onto the public roadway” … . The plaintiff’s theory of the Rizzetta defendants’ liability is premised upon the Rizzetta defendants’ alleged diversion of water from their property onto the public roadway. Although the probative value of the inspection may be weakened by the passage of time since the accident occurred, such delay is not a basis for denying the plaintiff’s discovery request where, as here, the inspection may still aid the parties in preparation for trial … . Zupnick v City of New Rochelle, 2019 NY Slip Op 04754, Second Dept 6-12-19

 

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PLAINTIFFS’ ACTION SEEKING TO ENJOIN THE CONSTRUCTION OF A HOME PLAINTIFFS CONTENDED WAS IN VIOLATION OF THE TOWN CODE SHOULD HAVE BEEN DISMISSED PURSUANT TO THE DOCTRINE OF LACHES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the doctrine of laches applied to plaintiffs’ action seeking to enjoin defendant’s construction of a house. Plaintiffs alleged the construction violated the Town Code:

” To establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant'” … . ” The mere lapse of time without a showing of prejudice will not sustain a defense of laches. In addition, there must be a change in circumstances making it inequitable to grant the relief sought'” … . “Moreover, as the effect of delay may be critical to an adverse party, delays of even less than one year have been sufficient to warrant the application of the defense” … . …

The plaintiffs commenced this action nearly three years after the building permit was first issued in May 2012 and after [plaintiff] Kverel withdrew his administrative appeal, two years after the parties entered into the stipulation, and more than six months after construction purportedly commenced in August 2014. Although the building permit was amended several times thereafter and as late as February 2015, the record demonstrates that the plaintiffs were aware as early as July 2012, when the subject property remained undeveloped and before the defendant purchased the subject property, of their claim that the defendant’s construction was in violation of the Town Code. Although the record unequivocally demonstrates that the plaintiffs were opposed to the defendant’s construction on the subject property, the plaintiffs did not seek administrative review by the ZBA or injunctive relief until they commenced this action. Kverel v Silverman, 2019 NY Slip Op 04152, Second Dept 5-29-19

 

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PLAINTIFF DID NOT SUBMIT PROOF IT HAD THE FINANCIAL ABILITY TO CLOSE ON THE PURCHASE OF REAL PROPERTY, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON ITS ACTION FOR SPECIFIC PERFORMANCE OF THE REAL ESTATE PURCHASE AGREEMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this action for specific performance of a real estate purchase agreement should not have been granted. Plaintiff did not submit proof it had the financial ability to close:

“A plaintiff seeking specific performance of a contract for the sale of real property bears the burden of demonstrating that he or she was ready, willing, and able to perform his or her obligations under the contract” … . “[C]onclusory assertions that the plaintiff was ready, willing, and able to perform, are insufficient to satisfy this burden” … .

“When a purchaser submits no documentation or other proof to substantiate that it had the funds necessary to purchase the property, it cannot prove, as a matter of law, that it was ready, willing, and able to close” … . Thus, in moving for summary judgment on a complaint seeking specific performance of a contract for the sale of real property, a plaintiff purchaser must submit evidence demonstrating its financial ability to purchase the property, and in the absence of such evidence, the motion must be denied … .

Here, the plaintiff failed to establish, prima facie, that it was ready, willing, and able to purchase the subject property. More specifically, the conclusory assertions of Gavriel Yakubov, the alleged sole member of the plaintiff, that he had always been, and remained, ready, willing, and able to close, absent any evidence demonstrating the plaintiff’s financial ability to close, were insufficient to establish, prima facie, that the plaintiff was ready, willing, and able to purchase the subject property … . GLND 1945, LLC v Ballard, 2019 NY Slip Op 04143, Second Dept 5-29-19

 

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