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Order Re: an Easement Allowing Plaintiffs Access to a Lake Was Specific Enough to Support Finding the Defendants in Civil Contempt (for Violation of the Order)—Willfulness Is Not an Element of Civil Contempt—Mere Act of Disobedience Is Enough

The Third Department determined the defendants were properly found to be in contempt of an order concerning plaintiffs’ easement for access to a lake.  The court explained that the order was specific enough to justify the contempt finding and further explained that willfulness is not an element of civil contempt:

…[D]efendants thus contend that they were not prohibited from partially fencing the passageway or placing other property on it, provided that plaintiffs’ reasonable right of passage was not impaired … . However, the rule relied upon by defendants applies to rights-of-way that are not specifically defined or bounded by the language of the grant … . Here, the 2010 order determined that the deeds granted plaintiffs a defined 60-foot-wide easement and right-of-way consisting of the passageway, and that plaintiffs further possessed rights to construct, maintain and use a dock … . The 2010 order also expressly directed defendants to keep the passageway “free of all brush and tall grasses, junk boats, debris, and other personal property” that interfered or could interfere with plaintiffs’ rights, and to maintain the passageway in an unobstructed fashion. Defendants raised no factual challenge to plaintiffs’ claim that the fencing was partially obstructing the passageway, that they had permitted tall grass and brush to grow, and that they had allowed the accumulation of personal property and debris upon the passageway. Accordingly, Supreme Court correctly found that they violated a clear and unequivocal mandate in these respects … .

Although the 2010 order did not specify the precise location where plaintiffs were to construct their dock, it did direct defendants not to interfere with plaintiffs’ right to construct and use a dock “within the northerly extensions” of the passageway. Plaintiffs submitted a survey map and other evidence demonstrating that defendants had placed their dock in the center of the passageway in such a manner that insufficient space was left in the northerly end for plaintiffs to position or use a dock without infringing on the rights of a neighboring landowner. * * *

We reject defendants’ claim that the contempt finding was improper in that they allegedly believed their actions were justified and, thus, were not willfully disobedient. No finding of willfulness or deliberate disregard is required to sustain a civil contempt determination; “the mere act of disobedience, regardless of motive, is sufficient . . . if such disobedience defeats, impairs, impedes or prejudices the rights of a party”… . Hush v Taylor, 2014 NY Slip Op 07231, 3rd Dept 10-23-14

 

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Title Insurance Company Insures Only Whether a Property Has Legal Access to a Street, Not Whether Physical Access to the Street Is Possible

The Second Department determined that the action against a title insurance company was properly dismissed.  The insured property abutted a street.  However, a retaining wall on the property blocked access to the street.  When a problem developed with respect to removing the retaining wall, the property owners sued the title insurance company.  The Second Department held that the title insurance company was only obligated to determine whether the property had  “legal access” to a street, not “physical access:”

The title insurance policies … insure against “[l]ack of a right of access to and from the land.” “[S]uch a provision refers to the absence of a legal right to access and does not cover claims concerning lack of an existing means of physical access” … . On its motion for summary judgment, Stewart established that [plaintiffs] have a legal right of access because the subject property abuts a public street … . 43 Park Owners Group LLC v Commonwealth Land Tit Ins Co, 2014 NY Slip Op 07120, 2nd Dept 10-22-14

 

Doctrine of “Practical Location” (to Determine Boundary Line) Explained

In affirming Supreme Court’s determination of the location of a boundary line, the Third Department explained the doctrine of “practical location” which is used when the description of the land in deeds is inadequate:

As a general proposition, “[d]eeds and surveys indicate boundary lines by various descriptive elements or ‘calls’ which consist mainly of monuments, courses and distances, adjacent lands and area or quantity” … . Here, however, … our review confirms — that the subject deeds contain no specific bearings or directional calls and set forth only the vaguest description of the intended boundary line between the land originally conveyed to plaintiff and Laight. Indeed, [a surveyor] opined that the deeds in question were “so bad” that a boundary line could not be established absent either a boundary line agreement, which the parties apparently were unable to forge, or judicial intervention … . To that end, where a dispute exists as to the location of a boundary line, “the intent of the parties existing at the time of the original conveyance of the disputed property controls” … . Pursuant to the doctrine of practical location, “the practical location of a boundary line and an acquiescence of the parties therein for a period of more than [the statutory period governing adverse possession] is conclusive of the location of the boundary line” … . “[A]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled” … . Gibbs v Porath, 2014 NY Slip Op 07030, 3rd Dept 10-16-14

In another case, the Third Department found the “practical location” doctrine inapplicable.  Kennedy v Nimons, 2014 NY Slip Op 07036, 3rd Dept 10-16-14

 

Ignorance of Adverse Possessors’ Use of the Land Is Not a Defense/Criteria Explained

In affirming that defendants had demonstrated they met the criteria for adverse possession, the court noted that plaintiff’s claim that she did not know the defendants were occupying the land and did not know where the boundary was did not constitute a defense to adverse possession:

“To establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years)” … . “In addition, where, as here, the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was usually cultivated or improved’ or protected by a substantial inclosure’ ” … . “The type of cultivation or improvement sufficient under the statute will vary with the character, condition, location and potential uses for the property . . . and need only be consistent with the nature of the property so as to indicate exclusive ownership” … . Reardon v Broadwell, 2014 NY Slip Op 06718, 4th Dept 10-3-14

 

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Insufficient Proof of an Agreement to Assume a Mortgage at the Time Deed Transferred

The Second Department determined that the writings were insufficient to demonstrate the grantee agreed to assume a mortgage at the time the deed was transferred:

General Obligations Law § 5-705 provides, in relevant part, that “[n]o grantee of real property shall be liable upon any indebtedness secured by a mortgage” unless, “simultaneously with the conveyance,” the grantee executes a writing before a notary agreeing to assume and pay the mortgage debt. Here, it is clear from the allegations in the complaint and attached exhibits that the defendants did not execute a notarized written agreement to assume the mortgage allegedly held by the plaintiff at the time the properties were conveyed … . Thus, General Obligations Law § 5-705 bars the plaintiff from recovering on the theory that the defendants agreed to assume his existing mortgage on the properties as alleged in the complaint. Furthermore, [recovery] is also barred by the statute of frauds because an agreement to answer for the debt of another must be in writing (see General Obligations Law § 5-701[a][2]). Contrary to the plaintiff’s contention, the various writings attached to the complaint, taken together, were insufficient to memorialize the existence of an agreement … . Dahan v Weiss, 2014 NY Slip Op 05767, 2nd Dept 8-13-14

 

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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

 

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