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BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE.

The Second Department determined defendant bank (Chase) was entitled an equitable lien against plaintiff’s property under the doctrine of equitable subrogation. Chase had issued a mortgage to a third party which was used to pay off plaintiff’s mortgage. The transaction with the third party was fraudulent under Real Property Law 265-a known as the Home Equity Theft Prevention Act. Supreme Court held that Chase should have heeded warnings signs about the validity of the transaction, but did not actively facilitate the third party’s fraud (Chase did not have “unclean hands”). To avoid plaintiff’s unjust enrichment, Chase was entitled to an equitable lien against the property equal to the mortgage that was paid off plus taxes and insurance:

Under the doctrine of equitable subrogation, where the “property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder” … . The plaintiff contends that the Supreme Court erred in awarding Chase equitable subrogation because, in light of the determination that it was not a bona fide encumbrancer for value, Chase should have been denied equitable subrogation under the doctrine of unclean hands … . We disagree. The doctrine of unclean hands applies when the offending party “is guilty of immoral, unconscionable conduct” directly related to the subject matter in litigation and which conduct injured the party seeking to invoke the doctrine … . Here, although Chase was charged with knowledge of information which would have caused a prudent lender to inquire as to the circumstances of the transaction, the Supreme Court did not find that it had actual notice of the fraud or that it did anything to actively facilitate the fraud. There was no evidence that Chase “was a willing participant in a mortgage [rescue] scheme” … . Lucia v Goldman, 2016 NY Slip Op 08353, 2nd Dept 12-14-16

 

MORTGAGES (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/REAL PROPERTY LAW (HOME EQUITY THEFT PREVENTION ACT, BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/HOME EQUITY THEFT PREVENTION ACT (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/EQUITABLE LIEN (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/LIEN LAW (EQUITABLE LIEN, (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/EQUTABLE SUBROGATION, BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)/UNCLEAN HANDS (BANK WHICH ISSUED A MORTGAGE TO A THIRD PARTY THAT WAS USED BY THE THIRD PARTY TO PAY OFF PLAINTIFF’S MORTGAGE IN VIOLATION OF THE REAL PROPERTY LAW WAS ENTITLED TO AN EQUITABLE LIEN AGAINST PLAINTIFF’S PROPERTY IN THE AMOUNT OF THE ORIGINAL MORTGAGE)

DEFENDANTS’ ERRONEOUSLY DESCRIBED EASEMENT PROPERLY RELOCATED BY PLAINTIFF.

The Third Department affirmed Supreme Court’s determination that defendants had an easement over plaintiff’s land and, because the description of the easement erroneously placed it on another’s land, the easement was properly relocated by plaintiff:

“[I]n the absence of a claim for reformation, courts may as a matter of interpretation” transpose, reject or supply words in a contract or conveyance in order to effectuate the intent of the agreement if “some absurdity has been identified or the contract would otherwise be unenforceable either in whole or in part” … . Supreme Court did so here because the use of the metes and bounds description in the 1988 conveyance would have led to the absurd result of a right-of-way being granted over property that the grantor did not own, and preserved the stated intent of creating a right-of-way “for the purpose of ingress and egress” by jettisoning the defective description … . …

Defendants accordingly have a right-of-way over plaintiff’s property but, inasmuch as it lacks a specific metes and bounds description or other expression to the contrary, plaintiff is free to unilaterally relocate it “so long as the change does not frustrate the parties’ intent or object in creating the right of way, does not increase the burden on the easement holder, and does not significantly lessen the utility of the right of way”… . Anzalone v Costantino, 2016 NY Slip Op 08277, 3rd Dept 12-8-16

 

REAL PROPERTY (DEFENDANTS’ ERRONEOUSLY DESCRIBED EASEMENT PROPERLY RELOCATED BY PLAINTIFF)/EASEMENTS (DEFENDANTS’ ERRONEOUSLY DESCRIBED EASEMENT PROPERLY RELOCATED BY PLAINTIFF)

PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY.

The Second Department determined the Court of Claims properly dismissed claimant’s cause of action alleging a state watershed regulation prohibiting septic systems within 300 feet of a lake amounted to an unconstitutional taking of the property (because it could not be developed):

The Takings Clause of the Fifth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment … , provides that private property shall not “be taken for public use, without just compensation” (US Constitution Amendment V). The Takings Clause “is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking” … . In addition to physical takings, the United States Supreme Court has recognized that “government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster— and that such regulatory takings’ may be compensable under the Fifth Amendment” … .

The United States Supreme Court has “generally eschewed” any set formula for identifying regulatory takings, choosing instead to engage in ” essentially ad hoc, factual inquiries'” considering a number of factors … . However, it has recognized two categories of regulatory action that will be deemed per se takings for Fifth Amendment purposes, without the need to engage in case-specific inquiries: (1) regulations that compel the property owner to suffer a permanent physical invasion of the property, and (2) regulations that completely deprive an owner of “all economically beneficial us[e]” of the property … .

Here, in support of its motion for summary judgment, the claimant failed to establish, prima facie, that the subject property has suffered a complete elimination of value as a result of the watershed regulations… . Monroe Equities, LLC v State of New York, 2016 NY Slip Op 08206, 2nd Dept 12-7-16

 

REAL PROPERTY (PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY)/EMINENT DOMAIN (PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY)/REGULATORY TAKING (PROHIBITING SEPTIC SYSTEMS WITHIN 300 FEET OF A LAKE WAS NOT AN UNCONSITUTIONAL REGULATORY TAKING OF CLAIMANT’S PROPERTY)

QUESTION OF FACT WHETHER PHYSICAL PARTITION OR SALE IS THE APPROPRIATE REMEDY RE: A FOUR-FAMILY BROWNSTONE.

In an action for partition and sale of a four-family brownstone, the Second Department determined Supreme Court properly determined there was a question of fact whether physical partition or sale was the appropriate remedy:

“A person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners” (RPAPL 901[1]). “The right to partition is not absolute, however, and while a tenant in common has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties” … . “The actual physical partition of property is the preferred method and is presumed appropriate unless one party demonstrates that actual physical partition would cause great prejudice, in which case the property must be sold at public auction” … .

Contrary to the plaintiffs’ contention, there is a question of fact as to whether physical partition or sale of the subject property is appropriate … . Thus, the Supreme Court properly denied that branch of the plaintiffs’ motion which sought a sale of the property, and properly appointed a referee to determine whether physical partition or sale was the appropriate remedy. Perretta v Perretta, 2016 NY Slip Op 06814, 2nd Dept 10-19-16

 

REAL PROPERTY (QUESTION OF FACT WHETHER PHYSICAL PARTITION OR SALE IS THE APPROPRIATE REMEDY RE: A FOUR-FAMILY BROWNSTONE)/PARTITION (QUESTION OF FACT WHETHER PHYSICAL PARTITION OR SALE IS THE APPROPRIATE REMEDY RE: A FOUR-FAMILY BROWNSTONE)/PHYSICAL PARTITION (QUESTION OF FACT WHETHER PHYSICAL PARTITION OR SALE IS THE APPROPRIATE REMEDY RE: A FOUR-FAMILY BROWNSTONE)

COTENANT ACQUIRED THE OTHER COTENANT’S INTEREST BY ADVERSE POSSESSION.

The Second Department determined, under the law applicable at the time, a cotenant in possession (Midgley, Jr.) acquired full title to the property (i.e., acquired the cotenant’s interest) by adverse possession:

Midgley, Sr., left his estate, in equal parts, to Midgley, Jr., and a man named Robert E. Sayre, Sr. (hereinafter Sayre, Sr.). Midgley, Jr., claimed that, in 1971, Sayre, Sr., refused to participate in the operation or maintenance of the property and that Midgley, Jr., exclusively possessed and operated the property from that point forward. Midgley, Jr., paid the real estate taxes on the property and leased the property to various farmers and a nursery. All rents from these tenants were paid to Midgley, Jr. Midgley, Jr., farmed the property, growing rye, during the years that he could not find a suitable tenant. Sayre, Sr., died in 2005. In 2009, Midgley, Jr., commenced this action, alleging that he had become the sole lawful owner of the property by adverse possession and, therefore, was entitled to a judgment barring any claim to the property by, among others, the heirs of Sayre, Sr.

Under the law existing at the time title allegedly vested here, in the absence of an overt acknowledgment during the statutory period that ownership rested with another party, actual knowledge of the true owner, or co-owner as is the case here, did not destroy the element of claim of right … . “Where . . . the party claiming adverse possession is a tenant-in-common in exclusive possession, the statutory period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession” … . Midgley v Phillips, 2016 NY Slip Op 06688, 2nd Dept 10-12-16

REAL PROPERTY (COTENANT ACQUIRED THE OTHER COTENANT’S INTEREST BY ADVERSE POSSESSION)/ADVERSE POSSESSION (COTENANT ACQUIRED THE OTHER COTENANT’S INTEREST BY ADVERSE POSSESSION)/TENANTS IN COMMON (COTENANT ACQUIRED THE OTHER COTENANT’S INTEREST BY ADVERSE POSSESSION)

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STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS.

The Fourth Department, reversing the Court of Claims, determined the Court of Claims did not have the power to order the state to pay for liability insurance to allow claimant’s expert to test soil and water for contamination by highway deicing agents. Under the Court of Claims Act, the state cannot be required to pay fees for claimant’s witnesses:

In this real property tort action, claimants assert that deicing agents have run off of the Thruway and onto their farm located adjacent to the Thruway, thereby contaminating the soil and water. In order to prove their claim, claimants sought to inspect, test, and sample the Thruway shoulder and median adjacent to their farm. The testing would include, among other things, air, soil, and water testing and would involve “six visits to the site during the winter and early spring.” Claimants located a professor who agreed to perform the testing as their expert in exchange for permission to use the tests in his research and teaching; however, neither claimants nor the professor could afford the liability insurance routinely required by defendant in connection with inspections performed on its property.

Defendant moved for a protective order “requiring [c]laimants to provide satisfactory liability insurance in connection with proposed testing.” The Court of Claims issued an order stating, inter alia, that “[d]efendant shall be required to obtain or pay the costs of the insurance necessary to cover the anticipated testing activities” and that “the amount of insurance necessary shall be as determined by [d]efendant.” * * *

Under Court of Claims Act § 27, “costs, witnesses’ fees and disbursements shall not be taxed . . . by the court to any party.” Frederick v New York State Thruway Auth., 2016 NY Slip Op 06585, 4th Dept 10-7-16

COURT OF CLAIMS ACT (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/ENVIRONMENTAL LAW (HIGHWAY DEICING AGENTS, STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/REAL PROPERTY (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/HIGHWAYS (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)/DEICING AGENTS  (STATE CANNOT BE REQUIRED TO PAY FOR LIABILITY INSURANCE FOR CLAIMANT’S EXPERT RE: TESTING FOR CONTAMINATION BY HIGHWAY DEICING AGENTS)

CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES.

The First Department determined plaintiff, an owner of condominium unit, had the right to inspect and make paper and electronic copies of condominium records. The court further ruled that members of the condominium board could not be held personally liable for actions which amounted only to nonfeasance:

Condominium unit owners’ inspection rights are not governed by Business Corporation Law § 624, as condominium associations, unlike cooperative apartment corporations, are generally unincorporated. Rather, Real Property Law § 339-w governs the statutory inspection rights of condominium unit owners, and grants unit owners the right to examine “records . . . of the receipts and expenditures arising from the operation of the property,” as well as “the vouchers authorizing [such] payments,” during “convenient hours of weekdays.” Real Property Law § 339-w further provides: “A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.” * * *

… [A]lthough defendants are correct that the board does not have an obligation to mail or email to plaintiff copies of monthly financial reports, building invoices, redacted legal invoices, or board meeting minutes, plaintiff’s right to examine these records at the managing agent’s office, during convenient weekday hours, includes the right to create paper copies or electronic copies at her own expense during her inspection.  * * *

Here, plaintiff merely alleges that the board did not honor her inspection rights and failed to respond adequately to her complaints of noise emanating from an adjacent apartment. These allegations amount only to mere nonfeasance for which the board members cannot be held individually liable. Plaintiff’s conclusory allegation that the board ignored her noise complaints to retaliate against her for other disputes does not suffice to transform the claim into one for affirmative tortious misconduct. We note, however, that the claims will proceed against the board members in their official capacities. Pomerance v McGrath, 2016 NY Slip Op 06462, 1st Dept 10-4-16

 

REAL PROPERTY LAW (CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES)/CONDOMINIUMS (CONDOMINIUM UNIT OWNER HAS RIGHT TO INSPECT AND MAKE PAPER AND ELECTRONIC COPIES OF CONDOMINIUM RECORDS; CONDOMINIUM BOARD MEMBERS CANNOT BE SUED INDIVIDUALLY FOR NONFEASANCE BUT CAN BE SUED IN THEIR OFFICIAL CAPACITIES)

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CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY.

The Second Department, reversing (modifying) Supreme Court, determined plaintiff had made out a prima facie case for damages stemming from the defendant's breach of the implied warranty of habitability. Plaintiff held a proprietary lease in a cooperative. A storm damaged the terrace adjacent to the apartment. Plaintiff was entitled to damages for the period of time the terrace was closed:

The implied warranty of habitability, codified in the Real Property Law, provides that in every written lease for residential purposes, the landlord or lessor “shall be deemed to covenant and warrant that the premises so leased or rented and all areas used in connection therewith in common with other tenants or residents are fit for human habitation and for the uses reasonably intended by the parties and that the occupants of such premises shall not be subjected to any conditions which would be dangerous, hazardous or detrimental to their life, health or safety” (Real Property Law § 235-b[1]). In Solow v Wellner (86 NY2d 582, 587-588), the Court of Appeals clarified that Real Property Law § 235-b(1) includes three separate covenants: “(1) that the premises are fit for human habitation, (2) that the premises are fit for the uses reasonably intended by the parties, and (3) that the occupants will not be subjected to conditions that are dangerous, hazardous or detrimental to their life, health or safety” (id. at 587-588 [internal quotation marks omitted]). “A breach of warranty may be said to have occurred where the premises have not met the reasonable expectations of the parties” (7-82 Warren's Weed New York Real Property § 82.22 [2016]). Here, the plaintiff established that the water damage and subsequent closures of the terrace rendered it unfit for the uses reasonably intended by the parties … . Goldhirsch v St. George Tower & Grill Owners Corp., 2016 NY Slip Op 06060, 2nd Dept 9-21-16

LANDLORD-TENANT (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/REAL PROPERTY LAW (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/APARTMENTS (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/TERRACES (APARTMENTS, CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)/HABITABIILITY, IMPLIED WARRANTY OF (CLOSURE OF TERRACE BREACHED THE IMPLIED WARRANTY OF HABITABILITY)

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QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY DISCUSSED.

The First Department, over a two-justice dissent, determined there were questions of fact about whether plaintiff’s signing of a quitclaim deed was procedurally and substantively unconscionable. Plaintiff, who believed he no longer owned the land, signed the deed in return for $5000. The property was worth $1,000,000:

No one procedural factor can be relied upon to support or discount a claim of procedural unconscionability. Such claims are most often fact sensitive and dependent upon the particular circumstances surrounding a transaction, which, at the very least, mandate the opportunity for an evidentiary hearing … . Certainly, the factual allegations … raise material issues of fact as to whether plaintiff was afforded a “meaningful choice” in his decision to execute the quitclaim deed and whether the terms of the agreement are “unreasonably favorable” to [defendants]. These issues cannot be resolved by summary judgment.

With respect to the element of substantive unconscionability, we also find that there are material issues of fact. In order to determine if the agreement is substantively unconscionable, there must be an “analysis of the substance of the bargain to determine whether the terms were unreasonably favorable to the party against whom unconscionability is urged” … . …[D]espite the fact that plaintiff believed he no longer owned the property, there is nothing in this record to indicate that he was ever divested of title by either an in rem proceeding or direct sale … . Green v 119 W. 138th St. LLC, 2016 NY Slip Op 05955, 1st Dept 9-8-16

 

REAL PROPERTY (QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY DISCUSSED)/CONTRACT LAW (QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY DISCUSSED)/QUITCLAIM DEED (QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY DISCUSSED)/UNCONSCIONABILITY (QUESTION OF FACT WHETHER QUITCLAIM DEED WAS UNCONSCIONABLE; DOCTRINES OF PROCEDURAL AND SUBSTANTIVE UNCONSCIONABILITY DISCUSSED)

THEORIES OF LIABILITY FOR DAMAGE TO A PARTY WALL EXPLAINED.

The Second Department, affirming the denial of a motion to dismiss counterclaims, in an action stemming from alleged damage to a party wall, explained the law of party walls:

While one who hires an independent contractor generally will not be liable for the contractor’s negligence, an exception exists where the employer has a nondelegable duty to ensure the work is safely performed … . With regard to two owners whose properties abut the same party wall, each owns so much of the wall as stands upon his or her own lot, both “having an easement in the other strip for purposes of the support of his own building” … . “Although the land covered by a party wall remains the several property of the owner of each half, . . . the title of each owner is qualified by the easement to which the other is entitled” … . “[N]either owner may subject a party wall to a use for the benefit of its own property that renders the wall unavailable for similar use for the benefit of the other property” … .

Liability may also be imposed on a property owner where, during renovation, the party wall is altered to the detriment of the adjoining property owner (Schneider v 44-84 Realty Corp. , 169 Misc 249 [Sup Ct, Bronx County 1938], affd 257 App Div 932 [1st Dept 1939]). In Schneider , the court explained that the defendant who tore down its house on one side of the party wall “could not withdraw the wall or change its condition to the injury of plaintiffs or plaintiffs’ property without being liable in damages for any injury that might accrue to the plaintiffs thereby” (id. at 252). Moreover, “[e]ven if the defendant proceeded with all skill and diligence it is still liable to the plaintiffs for any injuries sustained in consequence of the intended alterations to the wall and to the support which the building on defendant’s premises gave to the plaintiffs’ property” (id. at 253). Ehrenberg v Regier, 2016 NY Slip Op 05938, 1st Dept 9-1-16

REAL PROPERTY (THEORIES OF LIABILITY FOR DAMAGE TO A PARTY WALL EXPLAINED)/PARTY WALLS (REAL PROPERTY, THEORIES OF LIABILITY FOR DAMAGE TO A PARTY WALL EXPLAINED)

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