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Plaintiff’s Alleging a Deed Executed Within the Ten-Year Statute of Limitations for Adverse Possession Is Void Creates a Presumption of Possession by the Plaintiff Within the Ten-Year Period

The Second Department determined that plaintiff’s action to quiet title was not time-barred. Plaintiff alleged decedent’s signature on a deed was forged. By alleging the 1998 deed was void, plaintiff is presumed to have had possession of the premises within the statutory 10-year statute of limitations for adverse possession:

CPLR 212(a) provides that “[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action” (CPLR 212[a]…). However, CPLR 212(a) must be read together with RPAPL 311, which provides that “the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of the premises by another person is deemed to have been under and in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for ten years before the commencement of the action” (RPAPL 311 [emphasis added]…)..Here, the plaintiff sufficiently alleged possession of the subject premises within 10 years of commencing this action by asserting that the 1998 deed …, as well as each subsequent deed in the chain of title, was void. Under these circumstances, “the plaintiff, as the alleged legal title holder of the premises, is presumed to have possession of the premises within the time required” … . Elam v Altered Ego Realty Holding Corp, 2014 NY Slip Op 01292, 2nd Dept 2-26-14

 

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Public Trust Doctrine Re: Allowing a Restaurant in a Public Park/License and Lease Characteristics Compared

In a full-fledged opinion by Judge Graffeo, the Court of Appeals determined that a the city’s allowing a restaurant to operate in a public park did not violate the public trust doctrine and the arrangement between the city and the restaurant was a valid license, not a lease (which would have required approval by the legislature):

Under the public trust doctrine, dedicated parkland cannot be converted to a non-park purpose for an extended period of time absent the approval of the State Legislature … . * * * … [A]lthough it is for the courts to determine what is and is not a park purpose, … the Commissioner enjoys broad discretion to choose among alternative valid park purposes. Observing that restaurants have long been operated in public parks, we [in 795 Fifth Ave Corp v City of New York, 15 NY2d 221] rejected plaintiffs' public trust claim, holding that they could show only a “difference of opinion” as to the best way to use the park space and that this “mere difference of opinion [was] not a demonstration of illegality”… . * * *

We have stated that parkland cannot be leased, even for a park purpose, absent legislative approval … . * * *

A document is a lease “if it grants not merely a revocable right to be exercised over the grantor's land without possessing any interest therein but the exclusive right to use and occupy that land” … . It is the conveyance of “absolute control and possession of property at an agreed rental which differentiates a lease from other arrangements dealing with property rights” …. . A license, on the other hand, is a revocable privilege given “to one, without interest in the lands of another, to do one or more acts of a temporary nature upon such lands” … . That a writing refers to itself as a license or lease is not determinative; rather, the true nature of the transaction must be gleaned from the rights and obligations set forth therein. Finally, a broad termination clause reserving to the grantor “the right to cancel whenever it decides in good faith to do so” is strongly indicative of a license as opposed to a lease … . Union Square Park Community Coalition Inc v New York City Department of Parks and Recreation, 17, CtApp 2-20-14

 

Questions of Fact About Whether Covenants Restricting Use of Land Were Violated

The Fourth Department explained the analytical criteria for covenants restricting the use of land:

The law favors the free and unrestricted use of real property, and therefore covenants restricting such use are strictly construed against those seeking to enforce them … . Plaintiffs, as the parties seeking to enforce the covenants at issue, were required to “prove, by clear and convincing evidence, the scope . . . of the restriction” … . In addition, “where the language used in a restrictive covenant is equally susceptible of two interpretations, the less restrictive interpretation must be adopted” … . Viewing the language of the covenants in light of those rules, we conclude that plaintiffs failed to establish that the structure erected by defendant violates the covenant prohibiting erection or maintenance of a fence … . We further conclude that plaintiffs failed to establish that the structure violates the covenant prohibiting the obstruction of established trails or roads or otherwise interferes with plaintiffs’ rights of access to White Lake … . Rather, triable issues of fact remain whether the covenants at issue were intended to prohibit the structure in question and thus whether defendant violated those covenants… . Halfond… v White Lake Shores Association Inc, 1380, 4th Dept 2-14-14

 

Sunset Provision in a Deed Which Referred to “Restrictions” Did Not Affect “Easements” or “Reservations”

The Third Department determined that a sunset provision in a deed which referred to restrictions did not affect easements or reservations.  The provision in the deed which created an easement for utilities, therefore, was valid and enforceable:

Restrictions “restrain servient landowners from making otherwise lawful uses of their property” …, and Schedule A contains various paragraphs restricting, for example, the construction of certain kinds of buildings and the raising of animals on defendants’ property.  These are sometimes referred to as negative easements, as opposed to a reservation to the grantor of an affirmative easement to maintain utility lines on defendants’ property … .  We view the common grantor’s failure to refer to reservations in the sunset provision as a deliberate choice to avoid the termination of easements on January 1, 2005.  Johnson v Zelanis, 516184, 3rd Dept 1-9-14

 

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“Special Relationship” Required Before Municipality Can Be Liable for Failure to Enforce Statute or Regulation

The Second Department determined Supreme Court should have dismissed a complaint against the village alleging plaintiffs were exposed to “noise, smoke and odor” emanating from a Verizon facility and the exposure constituted a health hazard.  The complaint against the village alleged the negligent failure to enforce rules, regulations and building codes.  The Second Department explained that absent a “special relationship” creating a duty of care for the benefit of particular people, liability may not be imposed on a municipality for failure to enforce a statute or regulation.  The criteria for a special relationship are:

A special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when the municipality voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction and control in the face of a known blatant and dangerous safety violation… .

“To form a special relationship through breach of a statutory duty, the governing statute must authorize a private right of action”… .

With respect to the creation of a special relationship by the municipality’s voluntary assumption of a duty and the plaintiffs’ justifiable reliance on the municipality’s undertaking, four criteria must be shown: “ (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking’”… .

“[R]eliance must be examined in the specific context of the nature of the affirmative duty undertaken[,]” and “[i]t is the plaintiffs’ burden to show that the defendants’ conduct actually lulled them into a false sense of security, induced them to . . . forego other avenues of protection, and thereby placed themselves in a worse position than they would have been had the defendants never assumed the duty”… . Ferriera v Cellco Partnership…, 2013 NY Slip Op 07706, 2nd Dept 11-20-13

 

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Strict Foreclosure and Reforeclosure Actions Not Available Against Easement Holder

The Second Department determined that neither a strict foreclosure action (RPAPL 1352) nor a reforeclosure action (RPAPL 1503) can be brought to extinguish an easement where the easement holder was not named in the foreclosure action:

A purchaser of foreclosed property may, under certain circumstances, commence a strict foreclosure action pursuant to RPAPL 1352 … . RPAPL 1352 “authorizes the court to issue a judgment that fixes a time period within which any person having a right of redemption or right to foreclose a subordinate lien must act to redeem or begin a foreclosure action” (id.; see RPAPL 1352). If the person with a right of redemption or subordinate lien fails to redeem the property or commence a foreclosure action within the fixed time period, “all title or interest” this person has in or against “such property shall thereby be extinguished and terminated” (RPAPL 1352…).

A purchaser of a foreclosed property may, under certain circumstances, also commence a reforeclosure action pursuant to RPAPL 1503 … . “When real property has been sold pursuant to a judgment in an action to foreclose a mortgage,” a purchaser of a foreclosed property may maintain a reforeclosure action “to determine the right of any person to set aside such judgment, sale or conveyance or to enforce an equity of redemption or to recover possession of the property, or the right of any junior mortgagee to foreclose a mortgage” (RPAPL 1503). * * *

An easement holder, unlike a mortgagee … or a tenant …, does not fall within the class of persons against whom a strict foreclosure or reforeclosure action may be brought (see RPAPL 1352, 1503). An easement is not a lien or a mortgage… . Moreover, an easement holder that is not named in the foreclosure action does not have a right of redemption. An easement holder, unlike a tenant, does not have a possessory interest in the burdened land (…Property § 450; 1 Rasch, New York Law and Practice of Real Property § 18.8 [2d ed]). Thus, such actions cannot be maintained against an easement holder. Bass v D Ragno Realty Corp, 2013 NY Slip Op 07924, 2nd Dept 11-27-13

 

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Supreme Court Did Not Have Subject Matter Jurisdiction In an Action Seeking Compensation for an Alleged Unconstitutional Taking of Land Based Upon the Denial of a Subdivision Application—the Court of Claims Has Exclusive Jurisdiction

The plaintiff landowner wished to subdivide a 16 acre parcel and build homes with septic systems.  The land is in a watershed.  The town rejected the subdivision because the septic systems would violate the watershed regulations. The plaintiff then sued in Supreme Court seeking $1,000,000 as compensation for the alleged unconstitutional taking of his property.  In concluding that Supreme Court did not have subject matter jurisdiction, the Second Department wrote:

The plaintiff acknowledges that the instant action for a judgment declaring an unconstitutional taking is a precursor to the commencement of an action to recover damages in the Court of Claims based on that taking. The plaintiff, in effect, seeks to bifurcate its claim: to establish the State’s liability in the Supreme Court, and then to establish damages in the Court of Claims. The State Constitution, however, vests the Court of Claims with exclusive subject matter jurisdiction over claims against the State for appropriation of real property (see NY Const, art VI, § 9; Court of Claims Act § 9[2]). The plaintiff’s action runs afoul of this exclusive grant. Therefore, we agree with the Supreme Court that it lacks subject matter jurisdiction over the plaintiff’s claim… . Monroe Equities LLC v New York State, 2013 NY Slip Op 07715, 2nd Dept 11-20-13

 

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Purchase of Life Estate Considered Transfer of Property Requiring Delay of Medicaid Eligibility

The Fourth Department upheld the determination that petitioner’s transfer of property within the 60-month look-back period for Medicaid mandated an approximately fourteen-month delay in Medicaid eligibility (petitioner was in a nursing home, seeking payment of the expenses by Medicaid).  The Fourth Department explained the relevant criteria with respect to petitioner’s purchase of a life estate in property previously purchased by her daughter and grandson:

“ ‘In determining the medical assistance eligibility of an institutionalized individual, any transfer of an asset by the individual . . . for less than fair market value made within or after the look-back period shall render the individual ineligible for nursing facility services’ for a certain penalty period (Social Services Law § 366 [5] [d] [3]).  The look-back period is the ‘[60]month period[ ] immediately preceding the date that an [applicant] is both institutionalized and has applied for medical assistance’ (§ 366 [5] [d] [1] [vi]).  Where an applicant has transferred assets for less than fair market value, the burden of proof is on the applicant to ‘rebut the presumption that the transfer of funds was motivated, in part if not in whole, by . . . anticipation of future need to qualify for medical assistance’ ” … .  With respect to the specific issue of the purchase of a life estate for less than fair market value, Social Services Law § 366 (5) (e) (3) (ii) provides that “the purchase of a life estate interest in another person’s home shall be treated as the disposal of an asset for less than fair market value unless the purchaser resided in such home for a period of at least one year after the date of purchase.” Matter of Albino v Shah…, 1152, 4th Dept 11-8-13

 

Effect of Ambiguity in Easement Explained

In finding there were triable issues of fact, the Second Department explained the effect of ambiguity in the wording of easements:

The extent of an easement claimed under a grant is generally determined by the language used in the grant … . However, where the language of the grant is ambiguous or unclear, the court will consider surrounding circumstances tending to show the grantor’s intent in creating the easement … . Here, the language of the grant creating an easement in favor of the Clemensens’ property for “ingress and egress over the continuation of [the] private roadway as now or hereinafter located to the Hudson River” is ambiguous.  Menucha of Nyack, LLC v Fisher, 2013 NY Slip Op 07015, 2nd Dept 10-30-13

 

Question of Fact Re: Implied Easement for Pipeline to Pond

The Third Department determined there was a question of fact whether an implied easement existed for a pipeline linking defendant’s property with a pond.  The court agreed with Supreme Court that an express easement had been extinguished when the relevant parcels were owned by the same party and was not subsequently recreated de novo.  The court explained the criteria for an implied easement:

“[A]n easement by implication requires ‘(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary for the beneficial enjoyment of the land'” … .  Stated another way, “[a]n implied easement will arise ‘upon severance of ownership when, during the unity of title, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another part, which servitude at the time of severance is in use and is reasonably necessary for the fair enjoyment of the other part of the estate'” … . Here, there is no genuine dispute that there was unity in ownership and a subsequent separation of title of the subject parcels.  Similarly, defendants made a prima facie showing that the use of the pipeline across plaintiff’s property was continued and obvious for decades.  Freeman v Walther, 516293, 3rd Dept 10-24-13

 

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