Real Property Law – Page 17 – New York Appellate Digest

PLAINTIFF RECORDED HER DEED AND MORTGAGE PRIOR TO THE RECORDING OF A MORTGAGE BY DEFENDANT BANK, DEFENDANT BANK WAS NOT A GOOD FAITH PURCHASER IN THAT IT IS DEEMED TO HAVE PRIOR NOTICE OF PLAINTIFF’S INTERESTS, SUPREME COURT REVERSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff (Heidi) had recorded her deed and mortgage before defendant bank (M & T) recorded its mortgage (to secure a loan to a co-tenant). Therefore defendant bank had notice of plaintiff’s prior interests:

“The New York Recording Act … , inter alia, protects a good faith purchaser for value from an unrecorded interest in a property, provided such a purchaser’s interest is first to be duly recorded … . The status of good faith purchaser for value cannot be maintained by a purchaser with either notice or knowledge of a prior interest or equity in the property, or one with knowledge of facts that would lead a reasonably prudent purchaser to make inquiries concerning such”… . “The recording of a transaction involving real property provides potential subsequent purchasers [and encumbrancers] with notice of previous conveyances and encumbrances that might affect their interests. If the [encumbrancer] fails to use due diligence in examining the title, he or she is chargeable, as a matter of law, with notice of the facts which a proper inquiry would have disclosed” … . The encumbrancer “must be presumed to have investigated the title, and to have examined every deed or instrument properly recorded, and to have known every fact disclosed or to which an inquiry suggested by the record would have led” … .

Here, the Supreme Court erred in failing to award Heidi … proceeds from the sale of the property, the entire principal of her mortgage, plus interest, and reasonable collection costs, including an attorney’s fee and disbursements incurred in collecting the indebtedness secured by the mortgage. Heidi demonstrated that her mortgage and the … deed were duly recorded prior to M & T’s mortgage. Therefore, Heidi established that M & T is chargeable with notice of these prior interests. Gregg v M&T Bank Corp., 2018 NY Slip Op 02774, Second Dept 4-25-18

REAL PROPERTY LAW (GOOD FAITH PURCHASER, PLAINTIFF RECORDED HER DEED AND MORTGAGE PRIOR TO THE RECORDING OF A MORTGAGE BY DEFENDANT BANK, DEFENDANT BANK WAS NOT A GOOD FAITH PURCHASER IN THAT IT IS DEEMED TO HAVE PRIOR NOTICE OF PLAINTIFF’S INTERESTS, SUPREME COURT REVERSED (SECOND DEPT))/MORTGAGES (REAL PROPERTY LAW, GOOD FAITH PURCHASER, PLAINTIFF RECORDED HER DEED AND MORTGAGE PRIOR TO THE RECORDING OF A MORTGAGE BY DEFENDANT BANK, DEFENDANT BANK WAS NOT A GOOD FAITH PURCHASER IN THAT IT IS DEEMED TO HAVE PRIOR NOTICE OF PLAINTIFF’S INTERESTS, SUPREME COURT REVERSED (SECOND DEPT))/DEEDS (REAL PROPERTY LAW, GOOD FAITH PURCHASER, PLAINTIFF RECORDED HER DEED AND MORTGAGE PRIOR TO THE RECORDING OF A MORTGAGE BY DEFENDANT BANK, DEFENDANT BANK WAS NOT A GOOD FAITH PURCHASER IN THAT IT IS DEEMED TO HAVE PRIOR NOTICE OF PLAINTIFF’S INTERESTS, SUPREME COURT REVERSED (SECOND DEPT))/GOOD FAITH PURCHASER (REAL PROPERTY LAW, PLAINTIFF RECORDED HER DEED AND MORTGAGE PRIOR TO THE RECORDING OF A MORTGAGE BY DEFENDANT BANK, DEFENDANT BANK WAS NOT A GOOD FAITH PURCHASER IN THAT IT IS DEEMED TO HAVE PRIOR NOTICE OF PLAINTIFF’S INTERESTS, SUPREME COURT REVERSED (SECOND DEPT))/RECORDING (DEEDS AND MORTGAGES, GOOD FAITH PURCHASER, REAL PROPERTY LAW, PLAINTIFF RECORDED HER DEED AND MORTGAGE PRIOR TO THE RECORDING OF A MORTGAGE BY DEFENDANT BANK, DEFENDANT BANK WAS NOT A GOOD FAITH PURCHASER IN THAT IT IS DEEMED TO HAVE PRIOR NOTICE OF PLAINTIFF’S INTERESTS, SUPREME COURT REVERSED (SECOND DEPT))

April 25, 2018

MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT).

The Second Department determined there was a question of fact about the intent of the parties with respect to the property to which the plaintiff’s mortgage applied. The mortgage indicated the subject property by lot number and by metes and bounds. The metes and bounds description encompassed two lots:

Real Property Law § 240(3) provides that an instrument “creating, transferring, assigning or surrendering 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.” “Where the language used in [a mortgage] is ambiguous such that it is susceptible of more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances”… .

Contrary to the plaintiff’s contention, there is no rule that it is the metes and bounds description that determines what property is encumbered by any mortgage and not the street address or tax lot numbers. Rather, where, as here, there is a conflict between the metes and bounds description and the street address and/or tax lot numbers given in the mortgage, there is an ambiguity that requires consideration of parol evidence … Here, the … mortgage was “ambiguous on its face,” because “it refer[red] to one lot, but contain[ed] a metes and bounds description” for two lots … . JPMorgan Chase Bank, N.A. v Zhan Hua Cao, 2018 NY Slip Op 02603, Second Dept 4-18-18

FORECLOSURE (MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT))/MORTGAGES (MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT))/REAL PROPERTY LAW (MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT))/METES AND BOUNDS (MORTGAGE WAS AMBIGUOUS BECAUSE IT DESCRIBED THE SUBJECT PROPERTY BY A SINGLE LOT NUMBER AND BY METES AND BOUNDS WHICH ENCOMPASSED TWO LOTS, QUESTION OF FACT ABOUT THE INTENT OF THE PARTIES PRECLUDED SUMMARY JUDGMENT (SECOND DEPT))

April 18, 2018

Real Property Law

QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiffs’ (Schwengbers’) motion for summary judgment in this prescriptive easement case should not have been granted. The action concerned a shared driveway and a question of fact was raised whether plaintiffs’ use of the driveway was “hostile:”

“A party claiming a prescriptive easement must show . . . that the use of the easement was open, notorious, hostile and continuous for a period of 10 years” … . Hostility is the only element contested here. Once the other elements of a prescriptive easement are established, “hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive” … . However, permission can be inferred when “the relationship between the parties is one of neighborly cooperation and accommodation,” in which case no presumption of hostility will arise … . Moreover, “where permission can be implied from the beginning, no adverse use may arise until the owner of the servient tenement is made aware of the assertion of a hostile right” … . “Generally, the question of implied permission is one for the factfinder to resolve” … . …

… Schwengber … made assertions regarding her cordial and cooperative relationship — specifically relative to the driveway — with her neighbors who owned defendant’s parcel from 1974 to 2011. These assertions could be read to infer that plaintiffs had implied permission to use the driveway. Inasmuch as Schwengber’s affidavit contained assertions that supported inferences of both hostility and permissive use, plaintiffs failed to meet their initial burden on their summary judgment motion. Even if plaintiffs had met their burden, defendant submitted evidence indicating that his immediate predecessor-in-interest had an amicable and neighborly arrangement with plaintiffs. Schwengber v Hultenius, 2018 NY Slip Op 02379, Third Dept 4-5-18

REAL PROPERTY LAW (PRESCRIPTIVE EASEMENTS, QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/EASEMENTS (PRESCRIPTIVE EASEMENTS, QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/PRESCRIPTIVE EASEMENTS (QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))/HOSTILITY (PRESCRIPTIVE EASEMENTS, QUESTION OF FACT ABOUT THE HOSTILITY ELEMENT OF A PRESCRIPTIVE EASEMENT, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT))

April 5, 2018

Landlord-Tenant, Real Property Actions and Proceedings Law (RPAPL), Real Property Law

RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT).

The Third Department, reversing County Court (which had affirmed Town Court), determined that the tenant-respondent’s defenses in this eviction proceeding should have been considered:

“When a landlord-tenant relationship exists, the landlord may maintain a special proceeding to remove a tenant if, as relevant here, ‘[t]he tenant continues in possession of any portion of the premises after the expiration of his [or her] term'” … . The tenant is free, however, to raise “any legal or equitable defense, or counterclaim” in answering the allegations in the petition … .

In that regard, respondent asserted a defense of retaliatory eviction, which includes the scenario wherein a landlord terminates a tenancy “to punish the tenant for complaining to government authorities and then . . . brings a holdover proceeding to evict the tenant” … . Respondent made “[a] good faith complaint . . . to a governmental authority of the landlord’s violation of any health or safety law, regulation, code, or ordinance” within the six months prior to the commencement of this proceeding … . …

Town Court further failed to grapple with the defenses of constructive eviction and breach of the implied warranty of habitability raised by respondent. County Court correctly observed that these defenses cannot forestall an eviction in a holdover proceeding, but overlooked that they are viable “defense[s] to the recovery of rent” in such proceeding ,,, , Matter of Kirkview Assoc. LP v Amrock, 2018 NY Slip Op 02389, Third Dept 4-5-18

LANDLORD-TENANT (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/RETALIATORY EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/CONSTRUCTIVE EVICTION (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/HABITABILITY, WARRANTY OF (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (EVICTION, (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))/REAL PROPERTY LAW (EVICTION, (RETALIATORY EVICTION, CONSTRUCTIVE EVICTION AND BREACH OF WARRANTY OF HABITABILITY DEFENSES SHOULD HAVE BEEN CONSIDERED IN THIS EVICTION PROCEEDING (THIRD DEPT))

April 5, 2018

Civil Procedure, Nuisance, Real Property Law, Trespass

NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT).

The Fourth Department determined the nuisance and trespass actions based upon the alleged diversion of surface water were not continuing torts and were therefore time-barred:

Defendants established that the nuisance and trespass causes of action accrued, at the latest, in June 2010, which is when plaintiff received the information from the USACE [US Army Corps of Engineers] and the damage to its property was apparent … .

Plaintiff contends that, because the water flows continually onto its property, the torts are continuous in nature and, as a result, plaintiff’s causes of action for nuisance and trespass are not time-barred. We reject that contention. Courts will apply the continuing wrong doctrine in cases of ” nuisance or continuing trespass where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed’ “… . Here, plaintiff’s allegations establish that its damages may be traced to a specific, objectionable act, i.e., the implementation of the remedial plan. Where, as here, there is an original, objectionable act, “the accrual date does not change as a result of continuing consequential damages” … . EPK Props., LLC v PFOHL Bros. Landfill Site Steering Comm., 2018 NY Slip Op 02085, Fourth Dept 3-23-18

REAL PROPERTY LAW (NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))/CIVIL PROCEDURE (STATUTE OF LIMITATIONS, CONTINUING TORTS, NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))/STATUTE OF LIMITATIONS (CONTINUING TORTS, NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))/NUISANCE (SURFACE WATER, CONTINUING TORTS, NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))/TRESPASS (SURFACE WATER, CONTINUING TORTS, NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))/SURFACE WATER (NUISANCE AND TRESPASS ACTIONS BASED UPON SURFACE WATER WERE NOT CONTINUING TORTS AND WERE THEREFORE TIME-BARRED, CRITERIA FOR CONTINUING TORTS IN THIS CONTEXT EXPLAINED (FOURTH DEPT))

March 23, 2018

Real Property Law, Religion

DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT).

The Second Department, interpreting both real estate law and the canons of the Protestant Episcopal Church, determined a corrected deed superseded the deed which indicated the property was held in trust for defendant church, St. Matthias. St. Matthias had separated from the Episcopal Church and both the corrected deed and the applicable canons eliminated St. Matthias’s property rights:

The 1905 corrected deed removed any language indicating that the property was being held in trust for the congregation of St. Matthias. Where a deed of correction has been obtained, the corrective deed will control and the title of the grantee will be determined by the new grant … . The 1905 deed superseded the 1904 deed and was controlling.

Even if the 1905 deed did not supersede the 1904 deed, the Supreme Court was correct in holding that the ownership of the property vested in the [plaintiff] upon the separation of St. Matthias … from the Episcopal Church pursuant to the applicable canons of the … National Church … and the plaintiff Episcopal Diocese of Long Island … . By accepting the principles of the National Church and the Diocese for approximately 100 years, the defendants were subject to their canons, rules, and practices … . Episcopal Diocese of Long Is. v St. Matthias Nondenominational Ministries, Inc., 2018 NY Slip Op 00276, Second Dept 1-17-18

REAL PROPERTY LAW (DEED, RELIGIOUS LAW, DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))/DEEDS (CORRECTED DEED, DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))/RELIGION (CANONS OF THE EPISCOPAL CHURCH, REAL PROPERTY, DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))/CANONS OF THE EPISCOPAL CHURCH DEFENDANT CHURCH DID NOT HAVE ANY INTEREST THE CONTESTED REAL PROPERTY UNDER THE PROVISIONS OF A CORRECTED DEED AND THE CANONS OF THE EPISCOPAL CHURCH (SECOND DEPT))

January 17, 2018

Real Property Law, Trespass

ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT).

The First Department determined plaintiffs' causes of action for trespass and encroachment properly survived summary judgment and the cause of action for enforcement of a restrictive covenant was properly dismissed. The plaintiffs alleged that construction on defendants' building encroached on and damaged a party wall. The restrictive covenant was in an 1869 deed and did not indicate it was for the benefit of anyone other than the grantee:

The motion court correctly denied the motion insofar as it sought dismissal of the causes of action for encroachment and trespass. “A party wall is for the common benefit of contiguous proprietors. Neither may subject it to a use whereby it ceases to be continuously available for enjoyment by the other. . . A wall may be carried by either owner beyond its height as first erected, provided only it is strong enough to bear the weight and strain” … . It was defendants' burden, as movants, to offer evidence establishing their prima facie entitlement to summary judgment … . This they have failed to do. Indeed, plaintiffs in opposition proffer evidence that the alterations to the party wall have undermined the structural integrity of their buildings. Plaintiffs' engineer opined that defendants failed to detail a flashing system and to adhere to industry standards, occasioning damage. He further opined that it was impossible to ascertain whether the new masonry is properly tied to the old masonry so as to provide the requisite structural stability.

The cause of action to enforce a restrictive covenant was correctly dismissed for lack of standing… The covenant was entered into in 1869 by the original owner of one lot that included both of the subject properties and his immediate neighbor, and it contains no explicit provision that it is for the benefit of anyone other than the grantee. Mastrobattista v Borges, 2018 NY Slip Op 00039, First Depat 1-2-18

REAL PROPERTY LAW (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/TRESPASS (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/ENCROACHMENT (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/DEEDS (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/RESTRICTIVE COVENANT (DEEDS, ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))/PARTY WALLS (ACTIONS FOR TRESPASS AND ENCROACHMENT ALLEGING DAMAGE TO A PARTY WALL PROPERLY SURVIVED SUMMARY JUDGMENT, RESTRICTIVE COVENANT IN 1869 DEED DID NOT BENEFIT ANYONE OTHER THAN THE ORIGINAL GRANTEE (FIRST DEPT))

January 2, 2018

Real Property Law

EASEMENT WHICH ALLOWED ACCESS TO A GARAGE AND WOODSHED WAS EXTINGUISHED, GARAGE AND WOODSHED NO LONGER EXISTED AND HAD NOT EXISTED FOR 50 YEARS (THIRD DEPT).

The Third Department determined an easement which originally allowed access to a garage and woodshed had been extinguished because the garage and woodshed longer existed, and had not existed for some 50 years:

An easement appurtenant, such as the one at issue on this appeal, is created through a written conveyance, subscribed by the grantors, that burdens the servient estate for the benefit of the dominant estate … . An easement expressly created for, or limited to, a specific purpose may be extinguished by the abandonment of that purpose … , which must be demonstrated through “unequivocal” acts establishing that the owner of the dominant estate intended to “permanently relinquish all rights to the easement” … . In determining the nature and extent of an express easement, the easement must be construed “to give effect to the [conveyors’] intent, as manifested by the language of the grant” … . Stone v Donlon, 2017 NY Slip Op 09225, Third Dept 12-28-17

REAL PROPERTY (EASEMENTS, EASEMENT WHICH ALLOWED ACCESS TO A GARAGE AND WOODSHED WAS EXTINGUISHED, GARAGE AND WOODSHED NO LONGER EXISTED AND HAD NOT EXISTED FOR 50 YEARS (THIRD DEPT))/EASEMENTS (EASEMENT APPURTENANT WHICH ALLOWED ACCESS TO A GARAGE AND WOODSHED WAS EXTINGUISHED, GARAGE AND WOODSHED NO LONGER EXISTED AND HAD NOT EXISTED FOR 50 YEARS (THIRD DEPT))/EASEMENT APPURTENANT (EASEMENT APPURTENANT WHICH ALLOWED ACCESS TO A GARAGE AND WOODSHED WAS EXTINGUISHED, GARAGE AND WOODSHED NO LONGER EXISTED AND HAD NOT EXISTED FOR 50 YEARS (THIRD DEPT))

December 28, 2017

Foreclosure, Negligence, Real Property Law, Toxic Torts

DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that the lead-paint exposure complaint should not have been dismissed because, although the exposure occurred after the judgment of foreclosure on the property, it occurred before the foreclosure sale, when defendants still held title:

… [D]efendants sought partial summary judgment dismissing those claims because defendants had lost title to the property by order of foreclosure entered on that date. We agree with plaintiff that the court erred in granting that part of defendants’ motion.

Although defendants established in support of that part of their motion that a judgment of foreclosure had been entered, it is well settled that ” [t]he entry of a judgment of foreclosure and sale does not divest the mortgagor of its title and interest in the property until [a] sale is actually conducted’ ” … . It is undisputed that the actual sale of the property did not take place until April 1993, after plaintiff had allegedly been exposed to lead paint, and thus defendants failed to meet their burden on that part of their motion. Nero v Kendrick, 017 NY Slip Op 08980, Fourth Department 12-22-17

NEGLIGENCE (LEAD PAINT, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/FORECLOSURE (TITLE, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/REAL PROPERTY (FORECLOSURE, TITLE, DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))/LEAD PAINT (DEFENDANTS LOST TITLE TO THE PROPERTY WHEN THE FORECLOSURE SALE TOOK PLACE, NOT WHEN THE JUDGMENT OF FORECLOSURE WAS ENTERED, THEREFORE PLAINTIFFS’ ALLEGED EXPOSURE TO LEAD PAINT TOOK PLACE WHEN THE DEFENDANTS STILL HELD TITLE (FOURTH DEPT))

December 22, 2017

Attorneys, Civil Procedure, Landlord-Tenant, Real Property Law

TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT).

The Fourth Department, in a full-fledged opinion by Justice DeMoyer, refusing to follow the 1st Department, determined the tenant, who was a defendant in a failed eviction action, had the right to bring a plenary action to recover attorney’s fees without violating the prohibition against claim splitting. It is significant that the tenant did not counterclaim for attorney’s fees in the answer to the eviction action. The fact that the answer included a boilerplate request for attorney’s fees in the wherefore clause did not amount to a counterclaim (which is authorized by Real Property Law § 234:

Applying the traditional understanding of the claim splitting rule discussed above and embodied in the landlord-tenant case law, the landlord’s bid for dismissal on claim splitting grounds must fail. It was the landlord, not the tenant, who instituted the two prior proceedings in Village Court. The tenant successfully defended herself against the landlord’s claims, but she did not assert an affirmative claim until the instant plenary action. Indeed, the landlord’s appellate brief explicitly concedes that the tenant did not interpose a Real Property Law § 234 counterclaim for attorneys’ fees in either of the two prior proceedings. Thus, because the instant action is the tenant’s first assertion of an affirmative claim for relief under section 234, the claim splitting rule poses no bar to her recovery. Put simply, the tenant cannot be guilty of claim splitting because, until the instant action, there was no claim to split. Caracaus v Conifer Cent. Sq. Assoc., 2017 NY Slip Op 08946, Fourth Dept 12-22-17

CIVIL PROCEDURE (CLAIM SPLITTING, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/LANDLORD-TENANT (EVICTION, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/REAL PROPERTY LAW (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))/CLAIM SPLITTING (LANDLORD-TENANT, ATTORNEY’S FEES, TENANT DID NOT COUNTERCLAIM FOR ATTORNEY’S FEES IN THE EVICTION PROCEEDINGS, TENANT’S BRINGING A PLENARY ACTION FOR ATTORNEY’S FEES AFTER SUCCESSFULLY DEFENDING THE EVICTION DID NOT VIOLATE THE PROHIBITION AGAINST CLAIM SPLITTING (FOURTH DEPT))