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COMMUNITY GARDEN ASSOCIATION STATED A CAUSE OF ACTION FOR ADVERSE POSSESSION OF A LOT IN THE LOWER EAST SIDE OF MANHATTAN, THE PERIOD OF TIME THE LAND WAS USED BY THE ASSOCIATION BEFORE IT WAS INCORPORATED IN 2012 WAS PROPERLY TACKED ON (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Tom, over a concurring opinion, determined plaintiff (Garden) had stated a cause of action for adverse possession of a lot in lower Manhattan used since 1985 as the site of a community garden by an unincorporated association (which was later incorporated in 2012):

In order to establish a claim of adverse possession, a plaintiff must prove that the possession was: (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous throughout the 10-year statutory period… . In addition, where, as here, the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was “usually cultivated or improved” or that the land “has been protected by a substantial enclosure” (see former RPAPL 522…). The only elements in dispute here are the “claim of right” and “continuous” elements.

Defendants argue that plaintiff failed to plead sufficient facts evidencing continuous possession by its predecessor members for the statutory period, through an unbroken chain of privity, by tacking periods between anonymous possessors who are not alleged to have intended to transfer title to the incorporating members. This argument is based on the fact that plaintiff was incorporated in 2012 and defendants’ contention that there is no allegation that plaintiff had the necessary privity with Garden members prior to incorporation. This argument fails, particularly at the pleading stage of this litigation.

It is well settled that an unincorporated association may adversely possess property and later incorporate and take title to it because “[a]lthough the unincorporated society could not acquire title by adverse possession, its officers could for its benefit, and when the corporation is duly organized the prior possession may be tacked to its own to establish its title under the statute of limitations” … . Children’s Magical Garden, Inc. v Norfolk St. Dev., LLC, 2018 NY Slip Op 05223, First Dept 7-12-18

REAL PROPERTY LAW (ADVERSE POSSESSION, COMMUNITY GARDEN ASSOCIATION STATED A CAUSE OF ACTION FOR ADVERSE POSSESSION OF A LOT IN THE LOWER EAST SIDE OF MANHATTAN, THE PERIOD OF TIME THE LAND WAS USED BY THE ASSOCIATION BEFORE IT WAS INCORPORATED IN 2012 WAS PROPERLY TACKED ON (FIRST DEPT))/ADVERSE POSSESSION ( COMMUNITY GARDEN ASSOCIATION STATED A CAUSE OF ACTION FOR ADVERSE POSSESSION OF A LOT IN THE LOWER EAST SIDE OF MANHATTAN, THE PERIOD OF TIME THE LAND WAS USED BY THE ASSOCIATION BEFORE IT WAS INCORPORATED IN 2012 WAS PROPERLY TACKED ON (FIRST DEPT))/ASSOCIATIONS (ADVERSE POSSESSION, COMMUNITY GARDEN ASSOCIATION STATED A CAUSE OF ACTION FOR ADVERSE POSSESSION OF A LOT IN THE LOWER EAST SIDE OF MANHATTAN, THE PERIOD OF TIME THE LAND WAS USED BY THE ASSOCIATION BEFORE IT WAS INCORPORATED IN 2012 WAS PROPERLY TACKED ON (FIRST DEPT))/UNINCORPORATED ASSOCIATIONS (ADVERSE POSSESSION, COMMUNITY GARDEN ASSOCIATION STATED A CAUSE OF ACTION FOR ADVERSE POSSESSION OF A LOT IN THE LOWER EAST SIDE OF MANHATTAN, THE PERIOD OF TIME THE LAND WAS USED BY THE ASSOCIATION BEFORE IT WAS INCORPORATED IN 2012 WAS PROPERLY TACKED ON (FIRST DEPT))

DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT).

The Third Department determined defendant (TRD) had a prescriptive easement over two portions of a trail that crossed over onto plaintiff’s land to go around obstacles. Seasonal use of the trail for hunting was deemed continuous use. The fact that the trail was not used for five years when the party (Cisgay) who testified on behalf of the defendant was in the service (after 20 years of continuous use of the trail) did not constitute abandonment. The trail had been widened by a forester for logging. Supreme Court should have ordered defendant to restore those portions of the trail that are on plaintiff’s land to the original width:

Contrary to plaintiff’s argument, when we give the requisite deference to Supreme Court’s factual findings and credibility determinations … , we find that Csigay’s unequivocal testimony with regard to his family’s use of the entire skidder trail from 1982 to 2002 established TRD’s claim for a prescriptive easement over the two crossover areas … . The element of continuous use may be established where, as here, a party’s predecessors used the property for the requisite 10 years … . Although TRD’s predecessors used the property primarily during the hunting season, such use did not negate the existence of a prescriptive easement because TRD established that the use was “continuous and uninterrupted and commensurate with appropriate seasonal use” … . Further, in the absence of sufficient evidence that plaintiff and TRD’s predecessors shared a relationship “of neighborly cooperation and accommodation” … , we agree with the court’s determination that plaintiff failed to meet its burden of establishing that the continuous use was permissive … . Although the parties agree that the skidder trail was not used from 2002 to 2007, nonuse of an established easement does not equate to abandonment… . Here, the record reveals no intent to abandon the skidder trail, only that Csigay stopped using it due to his military service. Auswin Realty Corp. v Klondike Ventures, Inc., 2018 NY Slip Op 04997, Third Dept 7-5-18

​REAL PROPERTY (PRESCRIPTIVE EASEMENTS, DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT))/EASEMENTS (PRESCRIPTIVE EASEMENTS, DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT))/PRESCRIPTIVE EASEMENTS (DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT))

DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT).

The Third Department determined that defendant did not rebut the presumption that the deed to the property where plaintiff fell was delivered and accepted the day before plaintiff’s fall:

… [D]efendant submitted, among other things, an executed copy of the referee’s deed transferring ownership of the subject property to defendant, dated March 28, 2013, one day before plaintiff’s alleged accident. Based on the foregoing, there is a strong presumption that the deed was delivered and accepted as of that date (see Real Property Law § 244…). The only additional documentation that defendant submitted to overcome the presumption was an affidavit from Anthony Iacchetta, an attorney who represented defendant’s predecessor in interest in its acquisition of the subject premises and a letter from Iacchetta’s firm dated April 11, 2013. In his affidavit, Iacchetta represents “that the transfer documents executed by the referee were not received by [his] firm until April 11, 2013,” and he provided a copy of the letter sent that same day forwarding said documentation to be countersigned. The documents submitted by defendant, however, do not address the parties’ intent or whether the deed was intended to be delivered and accepted as of April 11, 2013, as opposed to the deed’s March 28, 2013 execution date. Defendant, therefore, failed to rebut the presumption that the deed was delivered and accepted on March 28, 2013 … . Wisdom v Reoco, LLC, 2018 NY Slip Op 04628, Third Dept 6-21-18

​REAL PROPERTY (DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))/DEEDS (DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))/DELIVERY AND ACCEPTANCE (DEEDS, DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))/SLIP AND FALL (OWNERSHIP OF PROPERTY, DEEDS, (DEFENDANT PROPERTY OWNER DID NOT REBUT THE PRESUMPTION THAT THE DEED WAS DELIVERED AND ACCEPTED ON THE DATE OF THE DEED IN THIS SLIP AND FALL CASE, THE PLAINTIFF’S ALLEGED FALL OCCURRED THE DAY AFTER THE DATE OF THE DEED (THIRD DEPT))

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PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT

The Second Department, reversing Supreme Court, determined plaintiffs’ motion for leave to replead a private nuisance and trespass action should have been granted. Plaintiffs alleged defendants had negligently planted and watered on their side of plaintiffs’ retaining wall, damaging the wall:

… [T]he court improvidently exercised its discretion in denying the plaintiffs’ motion, in effect, for leave to replead … . The standard to be applied on such a motion “is consistent with the standard governing motions for leave to amend pursuant to CPLR 3025″… . In particular, such motions “should be freely granted absent prejudice or surprise to the opposing party, unless the proposed amendment is devoid of merit or palpably insufficient”… .

The proposed amended complaint alleged that the defendants had (1) engaged in “digging, excavating, grading and altering the soil, past the property line with [the] plaintiffs’ property and abutting [the plaintiffs’] property and wall,” (2) planted bushes, shrubs, and trees, and added significant amounts of mulch on the plaintiffs’ property, near the property line, and along the plaintiffs’ wall, and (3) excessively watered the location where the work was performed. The amended complaint further alleged that the “lateral load and pressure has been increased as a result of the planting of trees, bushes, shrubs and plants and the lack of drainage” so as to damage the plaintiffs’ retaining wall. The complaint alleges that this conduct was negligent, and that it constituted a private nuisance and trespass. Contrary to the defendants’ contention, these amended causes of action were neither palpably insufficient nor patently devoid of merit … , and no unfair prejudice or surprise to the defendants would arise from permitting the amendment … . Chaikin v Karipas, 2018 NY Slip Op 04525, Second Dept 6-20-18

​REAL PROPERTY (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CIVIL PROCEDURE (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/CPLR 3025  (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/TRESPASS (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/NUISANCE  (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))/RETAINING WALL  (PLAINTIFFS’ MOTION FOR LEAVE TO REPLEAD WITH AN AMENDED COMPLAINT ALLEGING DEFENDANTS’ PLANTING AND WATERING ON DEFENDANTS’ SIDE OF PLAINTIFFS’ RETAINING WALL CONSTITUTED NEGLIGENCE, TRESPASS AND A PRIVATE NUISANCE SHOULD HAVE BEEN GRANTED (SECOND DEPT))

,

PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the town had used land as a public park and, therefore, the land was not subject to taxation by the county:

The New York State Legislature has declared that “[a]ll real property within the state shall be subject to real property taxation . . . unless exempt therefrom by law”… . “Tax exclusions are never presumed or preferred and before [a party] may have the benefit of them, the burden rests on it to establish that the item comes within the language of the exclusion” … .

Here, the Town relies upon section 406 of the Real Property Tax Law. That section provides, with limited exceptions not applicable to this appeal, that “[r]eal property owned by a municipal corporation within its corporate limits held for a public use shall be exempt from taxation and exempt from special ad valorem levies and special assessments” … .

“Although what comprises a public use’ within the meaning of the statute has never been defined with exactitude’ and must necessarily depend upon the peculiar circumstances of each case’, it has been said . . . that [h]eld for a public use, in this connection, means that the property should be occupied, employed, or availed of, by and for the benefit of the community at large, and implies a possession, occupation and enjoyment by the public, or by public agencies'” … . …

The Town’s submissions demonstrated that the subject property was exempt from taxation from the time of its conveyance to the Town in 2005, and that the subsequent tax liens issued by the County were therefore “void ab initio” … . Town of N. Hempstead v County of Nassau, 2018 NY Slip Op 04021, Second Dept 6-6-18

​MUNICIPAL LAW (REAL PROPERTY TAX LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))/REAL PROPERTY TAX LAW (MUNICIPAL LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))/PARKS (REAL PROPERTY TAX LAW, MUNICIPAL LAW, PROPERTY USED BY THE TOWN AS A PUBLIC PARK WAS NOT SUBJECT TO COUNTY TAX (SECOND DEPT))

OWNERS OF PROPERTY ABUTTING A ROADWAY CANNOT PROHIBIT PARKING ALONG THE ROADWAY UNLESS PARKED CARS IMPEDE ACCESS TO THE OWNERS’ PROPERTY (THIRD DEPT).

The Third Department determined that plaintiffs, who owned property abutting a road, could not prohibit defendants from parking along the road unless plaintiffs’ access to the property was blocked by the defendants:

Supreme Court properly ruled that plaintiffs cannot prevent others from parking their vehicles within the highway easement on the road front property along the shoulder of Route 34, unless those individuals unreasonably interfere with plaintiffs’ right of ingress and egress … . Augusta v Kwortnik, 2018 NY Slip Op 03574, Third Dept. 5-17-18

​REAL PROPERTY (OWNERS OF PROPERTY ABUTTING A ROADWAY CANNOT PROHIBIT PARKING ALONG THE ROADWAY UNLESS PARKED CARS IMPEDE ACCESS TO THE OWNERS’ PROPERTY (THIRD DEPT))/PARKING (HIGHWAYS AND ROADS, REAL PROPERTY, OWNERS OF PROPERTY ABUTTING A ROADWAY CANNOT PROHIBIT PARKING ALONG THE ROADWAY UNLESS PARKED CARS IMPEDE ACCESS TO THE OWNERS’ PROPERTY (THIRD DEPT))/HIGHWAYS AND ROADS (PARKING, OWNERS OF PROPERTY ABUTTING A ROADWAY CANNOT PROHIBIT PARKING ALONG THE ROADWAY UNLESS PARKED CARS IMPEDE ACCESS TO THE OWNERS’ PROPERTY (THIRD DEPT))

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FORMER PRESIDENT OF THE CORPORATION WHICH OWNED AN APARTMENT BUILDING HAD THE APPARENT AUTHORITY TO SELL THE BUILDING, BUYER WAS A BONA FIDE PURCHASER (SECOND DEPT).

The Second Department determined that the ostensible president the corporation (Lowbet) which owned an apartment building, Liu, had the apparent authority to sell the building, and the buyer, 44th Street Realty, was a bona fide purchaser. Although Liu had been removed as president and replaced by petitioner, that information was not provided to the Department of State Division of Corporations:

The petitioner and Liu married in 1985 and then separated in 1995, after which the petitioner moved to China. Since 1995, Liu has run the day-to-day business of Lowbet, with the petitioner’s knowledge and consent. In August 2006, Liu was removed as president of Lowbet and the petitioner and his son were named president and vice president, respectively. However, the petitioner did not update this information with the Department of State Division of Corporations.

44th Street Realty established, prima facie, that the subject deed was only voidable, not void ab initio, since the petitioner alleged that Liu’s signature and authority to convey were acquired by fraudulent means, but did not allege that Liu’s signature was forged … .

44th Street Realty also established, prima facie, that Liu was cloaked with apparent authority to sign the deed on behalf of Lowbet. The petitioner had condoned Liu’s unfettered control and operation of the day-to-day business of Lowbet, which gave rise to the appearance that Liu possessed authority to enter into a real estate transaction on behalf of Lowbet … . Under the circumstances, 44th Street Realty’s reliance upon the appearance of Liu’s authority was reasonable … .

Further, 44th Street Realty made a prima facie showing that it was a bona fide purchaser by demonstrating that it had paid valuable consideration for the property, in good faith and without knowledge of any alleged fraud by Liu … . Real Property Law §§ 266 and 291 protect the title of a bona fide purchaser for value who lacks knowledge of fraud by the grantor or affecting the grantor’s title … . 44th Street Realty’s submissions established that it had no knowledge of facts that would lead a reasonably prudent purchaser to inquire about possible fraud … . Matter of Shau Chung Hu v Lowbet Realty Corp., 2018 NY Slip Op 03529, Second Dept 5-16-18

​REAL ESTATE (APPARENT AUTHORITY, FORMER PRESIDENT OF THE CORPORATION WHICH OWNED AN APARTMENT BUILDING HAD THE APPARENT AUTHORITY TO SELL THE BUILDING, BUYER WAS A BONA FIDE PURCHASER (SECOND DEPT))/REAL PROPERTY LAW (BONA FIDE PURCHASER, APPARENT AUTHORITY, FORMER PRESIDENT OF THE CORPORATION WHICH OWNED AN APARTMENT BUILDING HAD THE APPARENT AUTHORITY TO SELL THE BUILDING, BUYER WAS A BONA FIDE PURCHASER (SECOND DEPT))/AGENCY (APPARENT AUTHORITY, FORMER PRESIDENT OF THE CORPORATION WHICH OWNED AN APARTMENT BUILDING HAD THE APPARENT AUTHORITY TO SELL THE BUILDING, BUYER WAS A BONA FIDE PURCHASER (SECOND DEPT))/CORPORATION LAW (APPARENT AUTHORITY, FORMER PRESIDENT OF THE CORPORATION WHICH OWNED AN APARTMENT BUILDING HAD THE APPARENT AUTHORITY TO SELL THE BUILDING, BUYER WAS A BONA FIDE PURCHASER (SECOND DEPT))/APPARENT AUTHORITY (REAL ESTATE, FORMER PRESIDENT OF THE CORPORATION WHICH OWNED AN APARTMENT BUILDING HAD THE APPARENT AUTHORITY TO SELL THE BUILDING, BUYER WAS A BONA FIDE PURCHASER (SECOND DEPT))/BONA FIDE PURCHASER (REAL ESTATE,  FORMER PRESIDENT OF THE CORPORATION WHICH OWNED AN APARTMENT BUILDING HAD THE APPARENT AUTHORITY TO SELL THE BUILDING, BUYER WAS A BONA FIDE PURCHASER (SECOND DEPT))

1941 AND 1953 DEEDS CREATED THE POSSIBILITY OF REVERTER WHICH COULD BE ASSIGNED (SECOND DEPT).

The Second Department determined the deeds in question included the possibility of reverter and that right was assignable:

… [T]he 1941 deed and the 1953 deed created possibilities of reverter. ” [E]very instrument creating [or] transferring . . . an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law'” … . No precise language is necessary to create a possibility of reverter, but “[a] characteristic of the type of expression which works automatic expiration of the grantee’s fee seems to be one in which time is an important factor,” such as use of the words “until,” “so long as,” or “during” … . Here, the 1941 deed and the 1953 deed unequivocally called for automatic forfeiture of the estate upon breach and thereby created for their respective grantors possibilities of reverter.

… Although no statute in effect in 1964 explicitly provided the grantor of the 1953 deed with a right to convey her possibility of reverter … , under the applicable rules of the common law, “a possibility of reverter could be freely assigned and alienated” … . Njcb Spec-1, LLC v Budnik, 2018 NY Slip Op 03376, Second Dept 5-9-18

​REAL PROPERTY LAW (DEEDS, REVERTER, 1941 AND 1953 DEEDS CREATED THE POSSIBILITY OF REVERTER WHICH COULD BE ASSIGNED (SECOND DEPT))/DEEDS (REVERTER, 1941 AND 1953 DEEDS CREATED THE POSSIBILITY OF REVERTER WHICH COULD BE ASSIGNED (SECOND DEPT)).REVERTER, POSSIBILITY OF (1941 AND 1953 DEEDS CREATED THE POSSIBILITY OF REVERTER WHICH COULD BE ASSIGNED (SECOND DEPT))

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PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT).

The Fourth Department determined the private nuisance cause of action properly survived summary judgment:

The elements of a cause of action for private nuisance are “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct” … . The issue whether a defendant’s use of land constitutes a private nuisance generally turns on questions of fact that include the degree of interference and the reasonableness of the use under the circumstances … . Evidence of noise and other disturbances has been found sufficient to preclude an award of summary judgment dismissing a cause of action for private nuisance … .

We conclude that defendant’s own submissions raised issues of fact precluding summary judgment … . Defendant submitted plaintiffs’ deposition testimony, which established that the stadium has lights and a loudspeaker that they find disturbing. When there are events at the stadium, the lights and loudspeaker are used late into the evening, sometimes until 11:00 p.m. The lights shine directly into the home of one of the plaintiffs. In addition, spectators at those events make a disturbing amount of noise, and also stand near plaintiffs’ property lines drinking alcohol and throwing trash onto plaintiffs’ properties. We further conclude, in any event, that plaintiffs raised issues of fact in opposition to the motion… . Plaintiffs submitted the deposition testimony of defendant’s superintendent, who testified that defendant had intended to plant trees along the property lines to mitigate any interference with plaintiffs’ use of the property but had abandoned that plan. The superintendent also acknowledged that he understood why plaintiffs had concerns about defendant’s use of the property. Ranney v Tonawanda City Sch. Dist., 2018 NY Slip Op 03004, Fourth Dept 4-27-18

​REAL PROPERTY (NUISANCE, PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT))/NUISANCE (PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT))/STADIUMS  (NUISANCE, PRIVATE NUISANCE CAUSE OF ACTION BASED UPON LIGHTS AND NOISE FROM A STADIUM PROPERLY SURVIVED SUMMARY JUDGMENT (FOURTH DEPT))

DOCUMENT ALLOWING ACCESS TO PLAINTIFF’S LAND OVER DEFENDANT’S LAND DID NOT INCLUDE ANY WORDS OF PERMANENCY, THE DOCUMENT CREATED A REVOCABLE LICENSE NOT AN EASEMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the filed document which described a right to access plaintiff’s land over defendant’s land did not include any language indicating access was to be granted permanently. Therefore the document created a license which defendant had revoked:

The law is well settled that ” [a]n easement appurtenant is created when such easement is (1) conveyed in writing, (2) subscribed by the person creating the easement and (3) burdens the servient estate for the benefit of the dominant estate’ “… . Although no specific words are required to express the permanency of an easement … , to “create an easement by express grant there must be a writing containing plain and direct language evincing the grantor’s intent to create a right in the nature of an easement rather than a revocable license . . . The writing must establish unequivocally the grantor’s intent to give for all time to come a use of the servient estate to the dominant estate. The policy of the law favoring unrestricted use of realty requires that where there is any ambiguity as to the permanence of the restriction to be imposed on the servient estate, the right of use should be deemed a license, revocable at will by the grantor, rather than an easement”… .

Here, the document signed by the parties’ predecessors in interest contains no words of permanency, nor any indication that it is meant to bind the grantor’s successors in interest. Thus, we conclude that plaintiff failed to establish that the parties’ predecessors intended to create an easement … . New York Land Dev. Corp. v Bennett, 2018 NY Slip Op 02926, Fourth Dept 4-27-18

​REAL PROPERTY (EASEMENTS AND LICENSES, DOCUMENT ALLOWING ACCESS TO PLAINTIFF’S LAND OVER DEFENDANT’S LAND DID NOT INCLUDE ANY WORDS OF PERMANENCY, THE DOCUMENT CREATED A REVOCABLE LICENSE NOT AN EASEMENT (FOURTH DEPT))/EASEMENTS ( DOCUMENT ALLOWING ACCESS TO PLAINTIFF’S LAND OVER DEFENDANT’S LAND DID NOT INCLUDE ANY WORDS OF PERMANENCY, THE DOCUMENT CREATED A REVOCABLE LICENSE NOT AN EASEMENT (FOURTH DEPT))/LICENSES (REAL PROPERTY, DOCUMENT ALLOWING ACCESS TO PLAINTIFF’S LAND OVER DEFENDANT’S LAND DID NOT INCLUDE ANY WORDS OF PERMANENCY, THE DOCUMENT CREATED A REVOCABLE LICENSE NOT AN EASEMENT (FOURTH DEPT))

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