You are here: / Real Property Law
, ,

The Requirements of Certificates of Conformity and Authenticity (Re: the Admissibility of Out-of-State Affidavits) Explained

The Second Department, in a full-fledged opinion by Justice Dillon, reversed Supreme Court finding that an out-of-state affidavit re: the assignment of a note and mortgage was in admissible form and could therefore be considered in support of plaintiff’s summary judgment motion.  The court explained that, because the document was notarized, no “certificate of authentication” was needed, and the “certificate of conformity” which was provided was adequate under New York law:

Here, the affidavit of Josh Mills was necessary for the plaintiff to establish the assignment to it of the subject mortgage and note and the defendants’ default in payment. The primary issue on this appeal is whether Mills’s out-of-state affidavit was sworn to and conformed in a manner rendering it admissible in this state under CPLR 2309(c). * * *

The “certificate” required by CPLR 2309(c), commonly referred to in case law as a “certificate of conformity,” must contain language attesting that the oath administered in the foreign state was taken in accordance with the laws of that jurisdiction or the law of New York (see Real Property Law § 299-a[1]). A “certificate of conformity” is separate and distinct from a “certificate of authentication,” which attests to the oathgiver’s authority under the foreign jurisdiction to administer oaths … .  * * *

A combined reading of CPLR 2309(c) and Real Property Law §§ 299 and 311(5) leads to the inescapable conclusion that where, as here, a document is acknowledged by a foreign state notary, a separate “certificate of authentication” is not required to attest to the notary’s authority to administer oaths … .  * * *

Nevertheless, CPLR 2309(c) requires that even when a notary is the foreign acknowledging officer, there must still be a “certificate of conformity” to assure that the oath was administered in a manner consistent with either the laws of New York or of the foreign state. In other words, a certificate of conformity is required whenever an oath is acknowledged in writing outside of New York by a non-New York notary, and the document is proffered for use in New York litigation. * * *

Here, the Supreme Court erred in concluding that the Mills affidavit was not accompanied by a certificate of conformity, as the “Uniform, All Purpose Certificate of Acknowledgment,” appended to the Mills affidavit, substantially conformed with the template requirement of Real Property Law § 309-b and constituted a certificate of conformity. * * * Midfirst Bank v Agho, 2014 NY Slip OP 05778, 2nd Dept 8-13-14

 

Defendant Failed to Prove Three Elements of Adverse Possession

The Third Department determined that defendant failed to demonstrate it had acquired plaintiff’s property by adverse possession:

To establish adverse possession, defendant was required to demonstrate, by clear and convincing evidence, that its possession was “(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required [10-year] period” … . Additionally, where, as here, the claim of right is not founded upon a written instrument, it was necessary for defendant to “establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure'” … . Upon our review of the record, we agree with Supreme Court’s conclusion that defendant failed to raise an issue of fact with respect to more than one of these elements.

Specifically, defendant has failed to establish that its use of the disputed parcel was continuous or exclusive * * * [and] … defendant presented no evidence that it cultivated or improved the disputed parcel during the relevant period.  Salerno v CE Kill Inc, 2014 NY Slip Op 05224, 3rd Dept 7-10-14

 

Easement Grants Only the Right to Ingress and Egress, Not a Right to the Physical Passageway Itself

The Third Department determined Supreme Court should not have ordered defendant to remove a gravel driveway.  The easement over defendant’s land gave plaintiffs the right of ingress and egress.  Installing the gravel driveway did not impair plaintiff’s right to ingress and egress:

“[W]here the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder” … . Accordingly, “in the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder’s right of passage is not impaired” … .

Here, the deed establishing the right-of-way states that it is “for the purpose of ingress and egress to” plaintiffs’ property. The uncontroverted evidence established that, while the turnaround was previously comprised of hard-packed dirt, defendant installed a gravel driveway on the turnaround. Plaintiffs did not submit any evidence establishing that the gravel driveway impeded their use of the turnaround. Although plaintiffs established that they had a right of passage for the purpose of ingress and egress, they failed to further establish that defendant’s addition of a gravel driveway impaired that right to any extent. Thibodeau v Martin, 2014 NY Slip Op 04996, 3rd Dept 7-3-14

 

Adverse Possession Criteria Explained

The Second Department determined the acquisition of  title to property by adverse possession had been demonstrated.  The court explained the criteria as follows:

…[T]he respondents…, who sought to obtain title to the subject property by adverse possession, were obligated to prove that the possession was hostile and under claim of right, actual, open and notorious, exclusive, and continuous for a period of 10 years … . Further, because the adverse possession claim was not founded upon a written instrument, in order to obtain title to the subject property, the respondents were obligated to establish, in accordance with the law in effect at the time the claim allegedly ripened …, that they ” usually cultivated, improved, or substantially enclosed the land'” … . “Because the acquisition of title by adverse possession is not favored under the law, these elements” had to “be proven by clear and convincing evidence” … . Scalamander Cove LLC v Bachmann, 2014 NY Slip Op 04914, 2nd Dept 7-2-14

 

In a Partition Action, Tenant in Common Not Liable to Other Tenants in Common for Use and Occupancy of the Property/Tenant in Common Entitled to Reimbursement from Other Tenants in Common for Taxes and Repairs

In the context of a partition action, the Fourth Department explained that a tenant in common is not liable to other tenants in common for the use and occupancy of the property and is entitled to reimbursement of any payments made for taxes and repairs:

Contrary to plaintiffs’ contention, the court properly determined that defendant was not liable to them for the value of defendant’s use and occupancy. “[P]artition is an equitable remedy in nature and [the court] has the authority to adjust the rights of the parties so [that] each receives his or her proper share of the property and its benefits” (Hunt v Hunt, 13 AD3d 1041, 1042). A tenant in common “has the right to take and occupy the whole of the premises and preserve them from waste or injury, so long as he or she does not interfere with the right of [the other tenants] to also occupy the premises” … . “Mere occupancy alone by one of the tenants does not make that tenant liable to the other tenant[s] for use and occupancy absent an agreement to that effect or an ouster” … , both of which are absent here.

Contrary to plaintiffs’ further contention, the court properly determined that defendant was entitled to be reimbursed for payments that he made for property taxes and repairs. It is well settled that a tenant in common is entitled to be reimbursed for the share of the taxes paid by him for the benefit of other tenants in common … . Additionally, a tenant in common is entitled to be reimbursed for money expended in maintaining, repairing and improving the property, if such maintenance, repairs, and improvements were undertaken in good faith and were necessary to protect or preserve the property … . Cooney v Shepard, 2014 NY Slip Op 04589, 4th Dept 6-20-14

 

, , ,

Constructive Trust Cause of Action Sufficiently Pled/Dismissal “With Prejudice” Not Allowed—Doctrine of Res Judicata Does Not Apply—a Dismissal for Failure to State a Cause of Action Is Not On the Merits

The Second Department determined Supreme Court should not have dismissed the constructive trust cause of action.  The court further determined that the conversion, constructive fraud and breach of contract causes of action were properly dismissed for failure to state a cause of action, but should not have been dismissed “with prejudice.”  With respect to the constructive trust and the dismissal with prejudice, the court wrote:

The equitable remedy of a constructive trust may be imposed ” [w]hen property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest'” … . “The elements of a cause of action to impose a constructive trust are (1) the existence of a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment” … . “To achieve equity and avoid unjust enrichment, the courts apply these factors flexibly rather than rigidly” … .

Here, the plaintiff sufficiently alleged the existence of a confidential or fiduciary relationship with the defendants. The parties were related through marriage, and the plaintiff and Atanasio, along with their respective spouses, pooled their resources in order to purchase the residential property and the boat … . Further, the plaintiff sufficiently pleaded the elements of a promise and a transfer in reliance on the promise. He alleged that, before he sold the defendants his interest in the property in November 2005, the defendants promised to reimburse him for the expenditures he made for the property and boat as long as he continued making those payments for one year after the sale of his interest. In reliance on this alleged promise and his confidential relationship with the defendants, he transferred his interest in the property to the defendants, and thereafter continued to make expenditures in connection with the property and boat. Finally, his allegations that he made all expenditures for the property and boat during a period of 7½ years, and that the defendants refused to reimburse him, despite being co-owners of the property and boat and notwithstanding their promise, were sufficient to plead the unjust enrichment element necessary to the imposition of a constructive … .

…Supreme Court, upon dismissing the second, third, and fourth causes of action, improperly did so “with prejudice.” A dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action… . Canzona v Atanasio, 2014 NY Slip Op 04458, 2nd Dept 6-18-14

In a related case, the Second Department noted that, because a dismissal for failure to state a cause of action is not on the merits, the doctrine of res judicata does not apply.  Canzona v Atanasio, 2014 NY Slip Op 04459, 2nd Dept 6-18-14

 

,

Claim Re: Ownership of Real Property Precluded by Laches Defense

The Second Department determined a counterclaim was properly dismissed pursuant to the laches defense.  The counterclaim alleged that a mortgage was void because the property passed by operation of law to the defendants upon the death of the property owner in 1988.  The defense of laches in this context was explained as follows:

“The essence of the equitable defense of laches is prejudicial delay in the assertion of rights” … . ” To establish laches, a party must show: (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant'” … . “In order for laches to apply to the failure of an owner of real property to assert his or her interest, it must be shown that [the]; plaintiff inexcusably failed to act when [he or]; she knew, or should have known, that there was a problem with [his or]; her title to the property. In other words, for there to be laches, there must be present elements to create an equitable estoppel'” … . ” Equitable estoppel arises when a property owner stands by without objection while an opposing party asserts an ownership interest in the property and incurs expense in reliance on that belief. The property owner must inexcusably delay in asserting a claim to the property, knowing that the opposing party has changed . . . position to his [or her ]; irreversible detriment'” … . “Moreover, as the effect of delay may be critical to an adverse party, delays of even less than one year have been sufficient to warrant the application of the defense” … . Deutsche Bank Natl Trust Co v Joseph, 2014 NY Slip Op 03794, 2nd Dept 5-28-14

 

,

Criteria for Reformation of a Deed (Removing a Restrictive Covenant) Not Met

The Third Department explained the criteria for reformation of a document, in this case a deed.  The court determined that the plaintiff, who was seeking to have a restrictive covenant removed from a deed, did not demonstrate the criteria for reformation of the deed.  The criteria were described as follows:

“A party seeking reformation must establish, by clear and convincing evidence, that the writing in question was executed under mutual mistake or unilateral mistake coupled with fraud” … . The burden is on the proponent of reformation to establish, by clear and convincing evidence, that the relief is warranted … .

Here, it is undisputed that the deed’s restrictive covenant was not set forth in the contract of sale and Salenger testified that he first became aware of it when he received the deed after the closing. Thus, plaintiff established the existence of a unilateral mistake regarding whether the restrictive covenant was intended to be included as a condition of the sale. Nonetheless, plaintiff’s proof fell short of establishing fraud on decedent’s part, which requires “‘a misrepresentation that is false and that the defendant knows is false, made to induce the other party to rely on it, justifiable reliance on the misrepresentation by the other party, and injury'” … . Timber Rattlesnake LLC v Devine, 2014 NY Slip Op 03718, 3rd Dept 5-22-14

 

Injunction Enforcing Restrictive Covenant Properly Granted Despite Substantial Construction In Violation of the Covenant

The Second Department determined plaintiff property owner was entitled to summary judgment in her action to enforce a restrictive covenant in a neighbor’s (Bryant’s) deed.  The restriction was a setback requirement which was violated.  Because plaintiff started her action early on, the fact that the neighbor’s house was substantially constructed did not matter.  The neighbor was on notice when the construction was done:

…[T]he restrictive covenant in Bryant’s deed was part of a common development scheme created for the benefit of all property owners within the subdivision. As such, the plaintiff has standing to enforce the restrictive covenant at issue … .

We … reject Bryant’s assertion that the Supreme Court erred in declining to dismiss the causes of action seeking injunctive relief on the ground that they had been rendered academic. As the plaintiff correctly argues, those causes of action were not rendered academic, despite the substantial completion of the home … . Under the circumstances, the plaintiff acted promptly in commencing this action and Bryant was put on notice that if she proceeded with construction, she would do so at her own risk … .

On the merits, we find that the Supreme Court properly granted the plaintiff’s cross motion for summary judgment. 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” … . “[C]ourts will enforce such restraints only where the party seeking enforcement establishes their application by clear and convincing evidence” … . Here, the plaintiff established, prima facie, that the restrictive covenant was applicable and that Bryant’s construction violated that restrictive covenant insofar as the side setback distances were concerned. In opposition to this prima facie showing, Bryant failed to raise a triable issue of fact … .  Hildago v 4-34-68 Inc, 2014 NY Slip Op 03491, 2nd Dept 5-14-14

 

Unrecorded Purchase Money Mortgage Did Not Have Priority Over Mortgage Recorded by Good-Faith Lender for Value

The Second Department determined that plaintiff’s complaint failed to state a cause of action concerning whether plaintiff’s purchase money mortgage had priority over the recorded mortgage held by defendant bank.  Plaintiff’s mortgage was not recorded:

Pursuant to “New York’s Recording Act (Real Property Law § 291), a mortgage loses its priority to a subsequent mortgage where the subsequent mortgagee is a good-faith lender for value, and records its mortgage first without actual or constructive knowledge of the prior mortgage” … . Further, the plaintiff’s purchase money mortgage “is as much subject to the Recording Act as any other” … .

The amended complaint failed to allege that [defendants] had constructive or actual notice of the plaintiff’s purchase money mortgage, that either made any representation to the plaintiff, or otherwise acted in bad faith. Thus, the plaintiff may only establish that the purchase money mortgage had priority over [defendant’s] mortgage on the basis that it was recorded first. However, the amended complaint averred that the purchase money mortgage was not recorded, and further stated that [defendant] holds a first Mortgage to the property.” Carrion v 162 Pulaski LLC, 2014 NY Slip Op 03470, 2nd Dept 5-14-14

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy