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OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, determined that the condemnation of regulated wetlands can be subject to an increased valuation (increment) based upon a reasonable probability a knowledgeable buyer could successfully challenge the taking as unconstitutional. The increment represents the premium that a knowledgeable buyer would be willing to pay for a potential change to a more valuable use. Here Supreme Court found the increment to be $382,190.25. The Second Department, using the City’s appraisal, reduced the increment to about $157,000.00. The value of the regulated wetlands was deemed to be $75,000.00:

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In light of the United States Supreme Court’s holding in Palazzolo [v Rhode Island, 533 US at 617], we conclude that a subsequent buyer of the property would not be precluded from bringing a successful regulatory takings claim. As a result, we reject the City’s argument that no knowledgeable buyer would be willing to pay a premium for the probability of a successful judicial determination that the regulations were confiscatory. We hold that the reasonable probability incremental increase rule still may be applied in valuing regulated wetlands properties taken in condemnation. Matter of New Cr. Bluebelt, Phase 3., 2017 NY Slip Op 07994, Second Dept 11-15-17

 

MUNICIPAL LAW (CONDEMNATION, REGULATED WETLANDS,OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/REAL PROPERTY LAW (CONDEMNATION, REGULATED WETLANDS , OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/CONSTITUTIONAL LAW (CONDEMNATION, REGULATED WETLANDS, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/CONDEMNATION (REGULATED WETLANDS, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/REGULATORY TAKING (WETLANDS, CONDEMNATION, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/WETLANDS (CONDEMNATION, REGULATED WETLANDS, OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))/EMINENT DOMAIN (CONDEMNATION, REGULATED WETLANDS,OWNER OF REGULATED WETLANDS ENTITLED TO AN INCREASED VALUATION IN CONDEMNATION PROCEEDINGS REPRESENTING THE PREMIUM A KNOWLEDGEABLE BUYER MIGHT PAY FOR A POTENTIAL CHANGE TO A MORE VALUABLE USE (SECOND DEPT))

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PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff had complied with the relevant regulations such that summary judgment was warranted in this excavation-damage action:

New York City Building Code … § BC 3309.4 provides that “[w]henever soil or foundation work occurs, regardless of the depth of such, the person who causes such to be made shall, at all times during the course of such work and at his or her own expense, preserve and protect from damage any adjoining structures, including but not limited to footings and foundations, provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the soil or foundation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of such adjoining property, who shall be afforded a similar license with respect to the property where the soil or foundation work is to be made.”

We have held that section 3309.4 imposes strict or absolute liability upon a ” person who causes’ an excavation to be made” … . Nonetheless, on this record, the Supreme Court erred in granting that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against [defendant], as the plaintiff failed to submit any evidence demonstrating that she granted [the defendant] the requisite license under section 3309.4 … or, in the absence of a license, what, if any, actions the plaintiff took to satisfy her duty under section 3309.4 to protect and preserve her property … . Chan v Begum, 2017 NY Slip Op 06425, Second Dept 9-13-17

 

REAL PROPERTY (NYC, EXCAVATION DAMAGE, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NYC, EXCAVATION PROPERTY DAMAGE, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)/EXCAVATION DAMAGE (REAL PROPERTY, NYC, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff did not have standing to enforce a covenant in an old deed prohibiting the construction of a commercial garage. The covenant was deemed to run only to the first purchaser, and did not run with the land:

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… [T]he record establishes that the restrictive covenant from the 1924 deed was not part of a common development scheme created for the benefit of subdivision property owners as concerns the plaintiff and the defendants. … At the time of the conveyance, the covenant cannot be said to have benefitted any part of the land burdened by it. … When the land was conveyed to Hudson … , at least as to the lots now owned by the plaintiff …, it was still in a single piece, and Hudson, the absolute owner of it, was free to do with it as it pleased except as against … the original covenantee … . When Hudson decided to divide the property, neither of the deeds embodied any part of the restrictive covenant, or contained any reference thereto. Hudson is the common grantor of the parties, and it sold the property without restrictions. Neither the plaintiff nor [defendant] have any different title from that which they derived through the unrestricted deeds from Hudson … . Thus, the original covenant is not enforceable as between the plaintiff and [defendant] … . Fleetwood Chateau Owners Corp. v Fleetwood Garage Corp., 2017 NY Slip Op 06431, Second Dept 9-13-17

REAL PROPERTY (COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))/DEEDS  (COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))/COVENANTS (DEEDS, COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE LAND, PLAINTIFF THEREFORE DID NOT HAVE STANDING TO ENFORCE IT (SECOND DEPT))

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CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the city had acquired title by adverse possession to a parcel purchased by plaintiff’s predecessors in 1948. The fact that plaintiff had continuously paid taxes on the property did not negate the proof of adverse possession:

In 1948, the plaintiff’s predecessors in interest purchased real property in Brooklyn. For at least 30 years, the subject property, which is in the middle of other lots owned by the defendant, City of New York, has been used by the New York City Department of Sanitation (hereinafter the DSNY) as a truck parking lot. During this time, the DSNY has paved the property, fenced it in, and installed lighting. * * *

Under the law before the 2008 amendments, in order to establish a claim to property by adverse possession, a claimant must prove, inter alia, that possession of the property was: (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period … .

The purpose of the hostility requirement is to provide the title owner notice of the adverse claim through the “unequivocal acts of the usurper”… . A rebuttable presumption of hostility arises from possession accompanied by the usual acts of ownership, and this presumption continues until the possession is shown to be subservient to the title of another … . “Hostility can be inferred simply from the existence of the remaining four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity” … .

… We conclude that the mere payment of taxes on the subject property is insufficient to rebut the presumption. Even assuming that knowledge of the true ownership of the property can be imputed to another municipal department in the City, such knowledge is not sufficient to defeat a claim of adverse possession … . Estate of Vertley Clanton v City of New York, 2017 NY Slip Op 06254, Second Dept 8-23-17

 

REAL PROPERTY (ADVERSE POSSESSION, CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))/ADVERSE POSSESSION (CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))/MUNICIPAL LAW (ADVERSE POSSESSION, CITY ACQUIRED TITLE BY ADVERSE POSSESSION, DESPITE PLAINTIFF’S HAVING CONTINUOUSLY PAID THE PROPERTY TAXES (SECOND DEPT))

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AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS (SECOND DEPT).

The Second Department determined that residents of a condominium across the street from the proposed construction of beach-front comfort stations did not have standing to contest the construction under the State Environmental Quality Review Act (SEQRA). The court further found that the petitioners’ air, light and access easements could not be asserted against the state, which owns the public road where the construction will be located:

“To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . The alleged harm cannot be “too speculative and conjectural to demonstrate an actual and specific injury-in-fact” … . Close proximity alone is insufficient to confer standing where there are no zoning issues involved, and general environmental concerns will not suffice … . Moreover, “[t]o qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature” … . Here, the petitioners’ alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … .

“When lands adjoin private property an easement of light, air and access over such property does not exist, under ordinary circumstances, merely because of the proximity of the lands to the private property” … .. However, an owner of land abutting a highway or street possesses, as incident to his or her ownership, easements of light, air, and access, irrespective of whether the owner owns the fee of the highway or the street itself … . Nevertheless, “[w]hen the fee of the highway has been transferred to the State, the State may use the highway for any public purpose not inconsistent with or prejudicial to its use for highway purposes . . . [and] [t]he mere disturbance of the rights of light, air and access of abutting owners on such a highway by the imposition of a new use, consistent with its use as an open public street, must be tolerated by them and no right of action arises therefrom, although such use interferes with the enjoyment of the premises”… . For example, the maintenance of trees on a street for the purposes of ornament and shade has been determined to be a proper street use … .

Here, the proposed construction will not completely block the petitioners’ ocean view nor prevent the petitioners from using the public street. Rather, the length of the dead-end street will be shortened and several public parking spaces will be removed. The turnaround will still be intact, although moved 23 feet to the north, and access to the petitioners’ driveway and building’s entrance will not be impeded … . In addition, the disputed comfort station will be open to, and for the purpose of, serving the public … . Matter of Shapiro v Torres, 2017 NY Slip Op 06281, Second Dept 8-23-17

 

REAL PROPERTY (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/EASEMENTS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/AIR LIGHT AND ACCESS  (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/ENVIRONMENTAL LAW (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STANDING (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/HIGHWAYS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY (SECOND DEPT).

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ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT.

The Second Department, reversing Supreme Court, determined that the mortgage-holder’s motion for a default judgment and order of reference should not have been denied. The 1970 deed for the property named defendant and his mother as husband and wife. Pursuant to 1970 law (which changed in 1975) the erroneous “husband and wife” designation created a tenancy in common with no right of survivorship. Therefore, although defendant was not the sole owner at the time the mortgage loan was made, the mortgage was secured by his interest in the property and that interest was subject to foreclosure:

Contrary to the Supreme Court’s determination, while the defendant may not have been the sole owner of the subject property at the time of the loan, he was still able to mortgage the subject property to the extent of his interest therein, since ” [a] mortgage given by one of several parties with an interest in the mortgaged property is not invalid; it gives the mortgagee security, but only up to the interest of the mortgagor'” … . “[T]here is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other” … . John T. Walsh Enters., LLC v Jordan, 2017 NY Slip Op 05813, 2nd Dept 7-25-17

REAL PROPERTY (DEEDS, ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)/FORECLOSURE (DEEDS,  ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)/TENANCY IN COMMON (DEEDS, ERRONEOUS HUSBAND AND WIFE DESIGNATION ON THE DEED CREATED A TENANCY IN COMMON, DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBJECT TO FORECLOSURE 2ND DEPT)

DEVELOPMENT RIGHTS CONSTITUTE REAL PROPERTY WHICH CAN BE SOLD PURSUANT TO RPAPL 1602 2ND DEPT.

The Second Department, in a full-fledged opinion by Justice Connolly, in a matter of first impression, determined that development rights constituted real property within the meaning of Real Property Actions and Proceedings Law (RPAPL) 1602, but that the sale of the development rights in this case would not be “expedient” and therefore would violate RPAPL 1602. Here three of four siblings wanted to sell the development rights to the family farm in order to preserve it as a farm. One of the siblings, the defendant, objected to the idea. Overruling Supreme Court, the Second Department held that development rights constitute real property which can be sold pursuant to RPAPL 1602. But, because there was no purchaser for the development rights, the plaintiffs had not demonstrated the sale was “expedient” within the meaning of the statute:

… [D]evelopment rights, as that term was understood by the parties to this action, are clearly “real property, or a part thereof” (RPAPL 1602). Indeed, the Court of Appeals has held that development rights constitute interests within the metaphorical “bundle of rights” that comprise fee interests in real property (see Seawall Assocs. v City of New York, 74 NY2d 92, 109 …). In Seawall, the Court of Appeals observed that “[t]here can be no question that the development rights which have been totally abrogated by the local law are, standing alone, valuable components of the bundle of rights’ making up their fee interests,” …  Applying the bundle-of-rights metaphor to the case at bar, by seeking court approval to convey away the right to build as many homes as are allowed by zoning and planning regulations, the plaintiffs are seeking to convey those portions of the bundle of rights comprising the maximum development capacity of the property. Moreover, in drafting RPAPL 1602, the Legislature gave courts the authority to compel the mortgage, lease, or sale of “real property, or a part thereof” … , without placing any limitations on which “parts” of the bundle of rights comprising real property are subject to the statute. “Ordinarily, where the Legislature in enacting a statute utilized general terms, and did not, either expressly or by implication, limit their operation, the court will not impose any limitation” … . Hahn v Hagar, 2017 NY Slip Op 05710, 2nd Dept 7-19-17

REAL PROPERTY (DEVELOPMENT RIGHTS CONSTITUTE REAL PROPERTY WHICH CAN BE SOLD PURSUANT TO RPAPL 1602 2ND DEPT)/DEVELOPMENT RIGHTS (REAL PROPERTY, DEVELOPMENT RIGHTS CONSTITUTE REAL PROPERTY WHICH CAN BE SOLD PURSUANT TO RPAPL 1602 2ND DEPT)

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REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT.

The Second Department determined summary judgment was properly awarded to plaintiff in this action to quiet title. Plaintiff religious corporation was required to get the court’s permission before selling property to defendant. Because plaintiff did not seek leave of court, its transfer of the property to defendant was invalid:

Religious Corporations Law § 12(1) provides that in order to sell any of its real property, a religious corporation must apply for, and obtain, leave of court pursuant to Not-For-Profit Corporation Law § 511 … . “The purpose of this requirement is to protect the members of the religious corporation, the real parties in interest, from loss through unwise bargains and from perversion of the use of the property” … . Here, the plaintiff, a religious corporation subject to the requirements of Religious Corporations Law § 12(1), established, prima facie, that its conveyance of the subject property to the defendants was invalid because it was made without leave of court … . Heights v Schwarz, 2017 NY Slip Op 05707, 2nd Dept 7-19-17

CORPORATION LAW (RELIGIOUS CORPORATIONS, REAL PROPERTY TRANSFER, REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT)/REAL PROPERTY (RELIGIOUS CORPORATIONS, REAL PROPERTY TRANSFER, REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT)/RELIGIOUS CORPORATIONS (REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT)/NOT FOR PROFIT CORPORATION LAW (RELIGIOUS CORPORATIONS, REAL PROPERTY TRANSFER, REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT)

QUESTIONS OF FACT ABOUT EASEMENT BY NECESSITY CLAIM AND LOCATION OF EASEMENT APPURTENANT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT.

The Third Department, reversing Supreme Court, determined defendants had raised questions of fact about the location of plaintiff’s (Finster’s) easement over defendants’ land. Summary judgment should not have been granted to Finster:

… Multiple longtime neighborhood residents provided sworn statements claiming that no roadway ever existed at the location of the disputed driveway prior to Finster’s ownership of 70 Middle Road. Further, one neighbor contradicted [pllaintiff’s] claim that the quarry property can only be accessed by the disputed driveway by claiming that it had historically been accessed by a different road. Hence, defendants’ submissions raised material issues of fact as to whether Finster’s easement appurtenant included the disputed driveway or, otherwise, whether the quarry parcel was landlocked, proof of which is essential to plaintiffs’ easement by necessity claim … . Finster Inc. v Albin, 2017 NY Slip Op 05651, 3rd Dept 7-13-17

REAL PROPERTY (QUESTIONS OF FACT ABOUT EASEMENT BY NECESSITY CLAIM AND LOCATION OF EASEMENT APPURTENANT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)/EASEMENTS  (QUESTIONS OF FACT ABOUT EASEMENT BY NECESSITY CLAIM AND LOCATION OF EASEMENT APPURTENANT, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 3RD DEPT)

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CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED.

The Second Department, in affirming the dismissal of the causes of action, explained when a resident can bring a private action to enforce a zoning ordinance and restrictive covenants in another’s deed:

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The Supreme Court also properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(3) to dismiss the plaintiff’s third cause of action, which was to enjoin alleged violations of the Code of the Town of Islip and restrictive covenants and to recover damages incidental to the alleged violations, as the plaintiff lacks standing to bring such a cause of action. Generally, to maintain a private action at common law to enjoin a zoning violation, a plaintiff must establish that he or she has standing to do so by demonstrating that special damages were sustained due to the defendant’s activities. To establish special damages, it is necessary to show that there is some depreciation in the value of the premises as real property arising from the forbidden use… . The plaintiff here failed to show that there was a depreciation of the character of the immediate neighborhood, or a depreciation in the value of her premises.

Furthermore, as stated previously, the plaintiff lacks standing to enforce restrictive covenants regarding the defendants’ property. The language in the deed from the original grantor indicates that the covenants were not imposed for the benefit of the owner of neighboring land. Therefore, the plaintiff may not enforce the covenants as a third-party beneficiary … .. Moreover, these covenants were not part of a common development scheme created for the benefit of all property owners within the subject development … . Wheeler v Del Duca, 2017 NY Slip Op 05116, 2nd Dept 6-21-17

 

ZONING (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/REAL PROPERTY (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/RESTRICTIVE COVENANTS (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/DEEDS (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)

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