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Demolition of Building Without Notice or Opportunity to Be Heard Was a Proper Exercise of City’s Police Powers

The Second Department determined summary judgment dismissing the complaint against the city, based upon the city’s demolishing a building without notice or the opportunity to be heard, was properly granted:

“In the exercise of its police powers [a] municipality may demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect the public from imminent danger” … . “[W]here there is competent evidence allowing the official to reasonably believe that an emergency does in fact exist, or that affording pre-deprivation process would be otherwise impractical, the discretionary invocation of an emergency procedure results in a constitutional violation only where such invocation is arbitrary or amounts to an abuse of discretion” … . Here, the defendant City of New York made a prima facie showing that its decision to cause the demolition of the subject building was not arbitrary or an abuse of discretion … . In opposition, the plaintiffs failed to raise a triable issue of fact. Iavarone v City of New York, 2015 NY Slip Op 04811, 2nd Dept 6-10-15

 

Good, Fact-Based Analysis of the Requirements for Adverse Possession

Reversing Supreme Court’s grant of summary judgment to the plaintiffs on their adverse-possession claim, the Third Department determined a question of fact had been raised about whether plaintiffs’ use of the disputed land was with the defendants’ permission, which would defeat the “hostility” element of adverse possession.  The Third Department offered a detailed fact-based analysis which provides an excellent lesson on the law of adverse possession. The court noted, on the issue of exclusivity, the claim that defendants occasionally maintained the disputed property during the plaintiffs’ absence was not enough to raise a question of fact about the plaintiffs’ exclusive use of the property:

To establish their claim for adverse possession, plaintiffs are required to prove by clear and convincing evidence that their possession of the disputed property “[was] hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period of 10 years” … . Additionally, where, as here, the adverse possession claim is not based upon a written instrument, the party asserting the claim “must establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure'” … .

As for [defendant’s] alleged maintenance of the disputed property during plaintiffs’ absences, “exclusivity is not defeated even if the true owner makes occasional forays onto the property . . .. [A]ll that is required is possession consistent with the nature of the property so as to indicate exclusive ownership” (1-5 Warren’s Weed, New York Real Property § 5.33 [2015]). In our view, plaintiffs’ exclusive, regular use and maintenance of the disputed property during their periods of occupation were consistent with the seasonal nature of their property. The occasional maintenance that defendants allegedly performed or directed during plaintiffs’ absences — which was performed without plaintiffs’ knowledge and did not interfere in any way with plaintiffs’ possession or use of the disputed property — was insufficient to meet defendants’ prima facie burden to establish that plaintiffs’ use of the property was not exclusive … . Bergmann v Spallane, 2015 NY Slip Op 04713, 3rd Dept 6-4-15

 

Restrictive Covenant Was Part of a Common Development Scheme and Was Enforceable by All Property Owners In the Subdivision

The Second Department determined a restrictive covenant requiring that one parcel in a subdivision remain undeveloped was enforceable by property owners in the subdivision. The covenant was part of a common development scheme created for the benefit of all property owners. The covenant stated that the parcel “shall be maintained . . . in perpetuity as open space preserving same in its present natural condition and not permitting or causing thereon any construction, improvements or alterations of the existing natural state of the premises. This restriction shall run with the land in perpetuity.”  Defendants were seeking to build an access road across the parcel.  The Second Department explained: . “The law has long favored free and unencumbered use of real property, and covenants restricting use are strictly construed against those seeking to enforce them … . Courts will enforce such restraints only where the party seeking enforcement establishes their application by clear and convincing evidence … . However, where proved by clear and convincing evidence, they are to be enforced pursuant to their clear meaning…”. [internal quotations omitted] Fader v Taconic Tract Dev., LLC, 2015 NY Slip Op 04272, 2nd Dept 5-20-15

 

Alterations to Easement Okay—They Did Not Interfere With the Easement-Holder’s Right of Passage

The Third Department determined the alterations made to an ingress and egress easement along a private road, including the installation of a gate, were not actionable because they did not interfere with the easement holder’s right of passage:

It is well settled that “[t]he extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties” … . Here, the easement specifically granted plaintiff and defendants the right of “ingress and egress and for electric, gas, water, sewer and similar services over, under and along [the] farm road” on the McLean property. Importantly then, “[a] right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his [or her] right . . . is merely a right to pass with the convenience to which he [or she] has been accustomed” … . In the absence of a demonstrated intent to provide otherwise, an easement of ingress and egress may be narrowed, covered, gated or fenced off, “‘so long as the easement holder’s right of passage is not impaired'”… . Boice v Hirschbihl, 2015 NY Slip Op 04191, 3rd Dept 5-14-15

 

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Questions of Fact Re: Whether a Deed Was Forged and Whether a Will Was Duly Executed

The Second Department determined there existed questions of fact whether a deed was a forgery and whether a will was duly executed.  In the course of the decision, the court explained: (1) there can be no bona fide purchasers or encumbrancers of real property based on a forged deed; (2) the transfer of title of real property devised under a will title vests on death not probate; (3) forged deeds are null and void ab initio; and (4) there was insufficient proof due execution of the will—no proof an attorney drafted the will or supervised its execution–no proof decedent possessed testamentary capacity:

Pursuant to Real Property Law § 266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller … . However, a person cannot be a bona fide purchaser or encumbrancer for value through a forged deed, as it is void and conveys no title … . …

Generally, “title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator’s death and not at the time of probate” … . Here, however, since the validity of the will is being challenged by the petitioner, it was incumbent upon the respondents, as the proponents of the will, to prove due execution of the will and testamentary capacity … . …

… [T]he … evidence was insufficient to establish that the will was executed in accordance with the formalities required by law (see EPTL 3-2.1), and that the decedent was of sound mind and memory when he executed the will and understood the nature and consequences of executing the will … . While there is a presumption of regularity where the drafting attorney supervised the will’s execution …, here, there was no evidentiary support for the respondents’ conclusory contention that the will was drafted by [the attorney] or that he supervised the execution ceremony. Moreover, the respondents failed to adduce any evidence demonstrating that the decedent possessed testamentary capacity when he signed the will. Matter of Raccioppi, 2015 NY Slip Op 04135, 2nd Dept 5-13-15

 

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Mortgagee in Possession Has a Duty to Care for the Property/Criteria for Determining a Motion to Dismiss for Failure to State a Cause of Action, Where Documentary Evidence Is Submitted, Explained

In the context of a motion to dismiss for failure to state a cause of action (where documentary evidence was submitted), the Second Department determined a mortgagee in possession of property (here because the property owner went bankrupt) has a duty to care for the property which is identical a property owner’s duty.  Here plaintiffs alleged the property, which had been damaged by fire, was allowed to deteriorate to the extent that plaintiffs’ neighboring property was damaged. The causes of action for nuisance, negligence and trespass survived the motion to dismiss.  The court noted its role when documentary evidence is submitted in support of a motion to dismiss for failure to state a cause of action:

A motion to dismiss pursuant to CPLR 3211(a)(1) may be appropriately granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” … . While the documentary evidence submitted by One West established that it did not own the defendants’ property at any relevant time … , that evidence did not “utterly refute” the plaintiffs’ contention that One West had a duty based on its status as a mortgagee in possession. In fact, the documents, which establish ownership, did not address the plaintiffs’ contention regarding One West’s alleged status as a mortgagee in possession … . Accordingly the Supreme Court erred in granting the motion insofar as it sought dismissal of the complaint pursuant to CPLR 3211(a)(1).

In considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court should accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” … . “Where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” … .

The plaintiffs’ contention that [defendant] was a mortgagee in possession has not been shown to be “not a fact at all” … . If [defendant] were, in fact, a mortgagee in possession, it was “bound to employ the same care and supervision over the mortgaged premises that a reasonably prudent owner would exercise in relation to his [or her] own property; he [or she] is bound to make reasonable and needed repairs, and is responsible for any loss or damage occasioned by his willful default or gross neglect in this regard” … . Thus, the complaint, as augmented by the affidavit of the plaintiff Emeta Allen, which was submitted in opposition to the motion to dismiss …, properly set forth causes of action alleging nuisance, negligence, and trespass, and the plaintiffs have causes of action sounding in nuisance, negligence, and trespass. Allen v Echeverria, 2015 NY Slip Op 04075, 2nd Dept 5-13-15

 

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A Forged Deed Is Void Ab Initio and Any Encumbrance on Real Property Based Upon a Forged Deed Is Null and Void—Action Based Upon a Forged Deed Is Not Therefore Subject to the Six-Year Statute of Limitations for Fraud

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over a three-judge dissent, determined that a forged deed is void ab initio and neither a forged deed nor a mortgage interest based upon a forged deed is valid at any time.  Therefore, the six-year statute of limitations for fraud does not apply and the action was not time-barred: “The legal question raised in this appeal is whether plaintiff … is time-barred under CPLR 213 (8) from seeking to set aside and cancel, as null and void, defendant Bank of America's mortgage interest in real property conveyed on the authority of a forged deed. Under our prior case law it is well-settled that a forged deed is void ab initio, meaning a legal nullity at its inception. As such, any encumbrance upon real property based on a forged deed is null and void. Therefore, the statute of limitations set forth in CPLR 213 (8) does not foreclose plaintiff's claim against defendant. ” Faison v Lewis. 2015 NY Slip Op 04026, CtApp 5-12-15

 

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City’s Annexation of Town Land Was in the Overall Public Interest

The Fourth Department determined the annexation of vacant town land by the city was demonstrated to be in the overall public interest, despite the loss of tax revenue to the town:

The municipality seeking an article 17 annexation has the burden of proving that the annexation is in the overall public interest” (…see General Municipal Law § 712…). “A reviewing court must weigh[ ] the benefit or detriment to the annexing municipality, the territory proposed to be annexed, and the remaining governmental unit from which the territory would be taken” … . “Benefit and detriment are customarily defined in terms of municipal services such as police and fire protection, health regulations, sewer and water service, public utilities and public education” … . “Another factor to consider is whether the municipality seeking the annexation and the territory proposed to be annexed have the requisite unity of purpose and facilities to constitute a community’ ” … .  Matter of City of Fulton v Town of Grandby, 2014 NY Slip Op 03371, 4th Dept 5-9-14

 

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Attorney-in-Fact Used His Power to Create a Gift (by Deed) to Himself and/or Third Parties—Deed Declared Null and Void

The Fourth Department determined the deed purporting to transfer a life estate to the attorney-in-fact was null and void. Essentially, the attorney-in-fact used his power to make a gift to himself and/or third parties, which created an unrebutted presumption of impropriety:

It is well settled that “[a] power of attorney . . . is clearly given with the intent that the attorney-in-fact will utilize that power for the benefit of the principal” … . “The relationship of an attorney-in-fact to his principal is that of agent and principal . . . and, thus, the attorney-in-fact must act in the utmost good faith and undivided loyalty toward the principal, and must act in accordance with the highest principles of morality, fidelity, loyalty and fair dealing’ . . . Consistent with this duty, an agent may not make a gift to himself or a third party of the money or property which is the subject of the agency relationship” … . “In the event such a gift is made, there is created a presumption of impropriety [that can] be rebutted [only] with a clear showing that the principal intended to make the gift” …, or that the gift was in the principal’s best interest … . Borders v Borders, 2015 NY Slip Op 04022, 4th Dept 5-8-15

 

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Village’s Opting to Remove Petitioner’s Land from the Land Available for Purchase by New York City to Maintain the City’s Drinking-Water Watershed Was Not a Regulatory Taking

The Third Department determined the village had acted appropriately when it opted to exclude portions of land within the village from New York City’s watershed acquisition program.  Petitioner was attempting to sell an easement for her land to the City.  When the village opted to exclude petitioner’s land from the City’s acquisition program, the petitioner brought an action claiming the village had exceeded its authority by improperly restricting the ownership and transferability of her property. Petitioner further argued that the village’s action constituted a de facto regulatory taking of her property for which she was entitled to compensation:

Through voluntary agreement and accepting DEC [Department of Environmental Conservation] conditions, the City consented not to be a potential purchaser of some upstate property if the local municipalities opted to exclude the property from land acquisition by the City. This was part of a delicate balance designed to protect the watershed and save the City significant money while safeguarding the economic vitality of upstate communities … . It was not an improper attempt by a local municipality to regulate who owns or occupies property … , but, in essence, the withdrawal of one potential purchaser who received a significant benefit. * * *

Where, as here, “the contested [resolution] falls short of eliminating all economically viable uses of the encumbered property, the Court looks to several factors to determine whether a taking occurred, including ‘the [resolution’s] economic effect on the landowner, the extent to which the [resolution] interferes with reasonable investment-backed expectations, and the character of the government action'” … . The resolution’s result was that one potential purchaser — who had not made any offer during the years when an easement on petitioner’s farm could have been purchased — no longer remained a potential purchaser. Petitioner has since found another willing purchaser. The resolution did not hinder the use that was being made of the property as a farming operation. The purpose of the resolution was to protect the Town’s potential for growth and economic sustainability, which was one of the many goals of the various parties involved … and consistent with an overriding purpose of maintaining a safe, ample and relatively inexpensive drinking water supply for the City. Petitioner “did not meet [her] heavy burden of showing that the [resolution] resulted in a regulatory taking”… .  Matter of Nelson v City of New York, 2014 NY Slip Op 03319, 3rd Dept 5-8-14

 

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