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Criteria for Easement Granted in General Terms

In determining Supreme Court should have denied defendant’s motion to dismiss, the Second Department explained the criteria for an easement granted in general terms:

Where, as here, an easement is granted in general terms, “the extent of its use includes any reasonable use necessary and convenient for the purpose for which it is created”…. Further, the holder of an access easement “cannot materially increase the burden of the servient estate or impose new and additional burdens on the servient estate” … . Shuttle Contr Corp v Peikarian, 2013 NY Slip Op 05057, 2nd Dept 7-3-13

 

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Leaky Condominium Roof Supported Negligence and Nuisance

In an action based on a leaky roof in a condominium, the First Department determined plaintiffs were entitled to summary judgment on the negligence cause of action against the sponsor and the cause of action for nuisance, also sounding in negligence, should not be dismissed:

The sponsor owed a nondelegable duty to plaintiffs to keep the condominium, including its roof, in good repair (see Multiple Dwelling Law § 78[1];…) . The sponsor breached that duty: Its principal… admitted that the original roof that the sponsor had caused to be installed did not render the condominium watertight and that there were instances of water infiltration into plaintiffs’ unit that needed to be addressed by the sponsor. * * *

Plaintiffs are correct that nuisance can be negligent; it does not have to be intentional…. In any event, they raised a triable issue of fact whether the sponsor’s allowing water to continue infiltrating their unit was intentional….  Liberman v Cayre Synergy 73rd LLC, 2013 NY Slip Op 04996, 1st Dept 7-2-13

 

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Plaintiffs Demonstrated They Acquired Title to Property with Cabin by Adverse Possession

The Third Department affirmed Supreme Court’s grant of summary judgment to plaintiffs in their RPAPL article 15 action to quiet title under the doctrine of adverse possession.  The owner of the property, which included a cabin, died intestate and plaintiffs, who allegedly were close personal friends with the owner’s brother (who used the cabin and also died intestate), took possession of the property.  The Third Department wrote:

…[T]o successfully acquire title by adverse possession, plaintiffs must establish by clear and convincing evidence that their occupation of the property was “(1) hostile and under a claim of right . . ., (2) actual, (3) open and notorious, (4) exclusive, and  (5) continuous for the statutory period (at least ten years)” … .  Additionally, because plaintiffs’ “claim was not founded upon a written instrument describing the boundaries of the property,” they were required to “establish that the land was usually cultivated or improved or protected by  a substantial inclosure….In support of their motion for summary judgment, plaintiffs submitted evidence that, since the time of [the owner’s brother’s] death in 1976, they have enjoyed the exclusive use and possession of the property, have paid the taxes and made repairs upon the property, and have permitted various family members to use and reside upon the property.  In 1990, plaintiffs improved the cabin to make it suitable for year-round use, and have used it throughout the year since that  time.  According to plaintiffs, no one  else has had  possession or control of the property since they first took it more than 35 years ago.  Quinlan v Doe, 516140, 3rd Dept 6-27-13

 

Validity of Easement for Access to Lake Affirmed

In affirming Supreme Court’s determination that the relevant deed allowed recreational use of a parcel of land (parcel 4) for access to a lake, and Supreme Court’s order to remove a fence which blocked access, the Third Department explained the relevant legal principles as follows:

“[T]he construction of a  deed, including  any  easements  set  forth  therein,  is generally  a question of law for the court, with extrinsic evidence being considered only if there are ambiguities”….  As owners  in the subdivision, plaintiffs’ deed sets forth various rights regarding parcel 4, including swimming privileges, docking privileges and – as relevant here – recreational  privileges. The recreational right is broadly set forth as having “the right to use, for recreational purposes, Parcel #4.” Significantly, this is not a  right merely  to cross parcel 4 to reach the lake. Consistent with the expansive right granted, subdivision owners exercised the recreational right in sundry manners, such as having picnics in various places on parcel 4 or placing chairs on the parcel to enjoy the view. Once on parcel 4, there is no relevant limitation – other than reasonableness and safety – as to where on the parcel subdivision owners  exercised their recreational rights (see generally Bruce and Ely, The Law of Easements and Licenses in Land, Location and Dimensions  of  Easements  §  7:3).  Jankowski v Lake Forest Homeowners, Inc, 516015, 3rd Dept 6-27-13

 

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Foreclosure Proceeding Can Be Brought by Party Who Did Not Provide Consideration; Tenants By the Entirety Can Mortgage Their Interest in Property

In a mortgage foreclosure action, the Second Department explained that it was not necessary that the foreclosing party have provided the consideration and that, with respect to a tenancy by the entirety, each tenant can sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other:

“[T]he validity of the mortgage usually depends indirectly upon consideration, not for the mortgage itself, but for the obligation upon which it depends”…. It is not necessary, however, that the party seeking to foreclose provided the consideration. A mortgage may be valid as long as proper consideration exists for the underlying obligation; once a party has lawfully obtained both the mortgage and the underlying promissory note, that party has standing to foreclose on the mortgage in the event of the default on the borrower’s obligation. * * *

“As tenants by the entirety, both spouses enjoy an equal right to possession of and profits yielded by the property” …. However, “there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy. To the contrary, each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other”…. Nevertheless, “a conveyance by one tenant, to which the other has not consented, cannot bind the entire fee”… .  Rose v Levine, 2013 NY Slip Op 04788, 2nd Dept 6-26-13

 

Doctrine of Practical Location Re: Boundary Line Dispute Explained

In a boundary-line dispute, the Second Department affirmed the dismissal of a counterclaim for a judgment declaring that a hedgerow and chain-link fence running parallel to the recorded boundary line was the legal line under the doctrine of practical location.  The Second Department explained the doctrine as follows:

Pursuant to the doctrine of practical location, “[a] practical location of a boundary line and an acquiescence therein for more than the statutory period is conclusive of the location of such boundary . . . although such line may not in fact be the true line according to the calls of the deeds of the adjoining owners”…. “[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'”….  Jakubowicz v Solomon, 2013 NY Slip Op 04578, 2nd Dept, 6-19-13

 

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Evidence of Loss Based Upon Interference with Property Owner’s Ability to Extract Gas by Hydrofracking Disallowed as Speculative

The Third Department affirmed Supreme Court’s determination that respondents’ expert would not be allowed to testify at trial in this condemnation proceeding.  Petitioner brought the condemnation proceedings to obtain perpetual easements for underground gas storage in the “Oriskany Sand” beneath the surface of the land owned by the respondents.  The respondents hired a geologist to testify that the easement will interfere with any future attempts to extract gas by hydrofracking and sought compensation for the claimed lost gas-development rights.  The Third Department wrote:

The  extent to which a  condemnation limits a  claimant’s property rights is determined  by  the language  used  in the appropriation and the underlying purpose of the taking, and  “[t]he quantum of the title to be taken will not be extended by implication”….Here, petitioner’s easement  explicitly reserves  to  respondents  “the right to grant oil, gas and other mineral rights to others in formations other than the Oriskany Sand” and limits that reservation of rights only by  precluding respondents  from “grant[ing] or convey[ing] gas  storage rights” (emphasis  added) that interfere with petitioner’s easement. * * *

If …hydrofracking in the Marcellus formation does eventually prove to pose an unacceptable risk to petitioner’s storage space – a claim that petitioner does not now make – it may choose at that time to undertake appropriate measures  to acquire whatever  additional rights may prove to be necessary, and, of course, to compensate the affected landowners   appropriately. As petitioner has not yet made any such acquisition, the court properly precluded respondents from presenting evidence on their claims relative to development rights in the Marcellus formation. Matter of Central N.Y. Oil & Gas Co., L.L.C. (LaDue), 515347, 3rd Dept, 6-13-13

 

 

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Lane Abutting Properties Was Not Owned by Property-Owners

The Third Department upheld Supreme Court’s determination that the owners of property which abutted a street or lane did not privately own the lane, because no map was referenced in the relevant deeds, and because of the public use of the lane for more than ten years and maintenance of the street by the village:

Fiebelkorn [a leading case] and its progeny stand for the general proposition that “[w]hen an owner of property sells a lot with reference to a map, and the map shows that the lot abuts upon a street, the conveyance presumptively conveys fee ownership to the center of the street on which the lot abuts, subject to the rights of other lot owners and their invitees to use the entire area of the street for highway purposes”….    This general proposition of law is of no aid to plaintiffs, however, in view of the fact that, among other things, plaintiffs’ deeds contain no reference to a map. * * *

Here, plaintiffs argue that the lane cannot be deemed a village street because (a) it does not qualify as a public street by dedication (see Village Law § 6-610), (b) it does not appear on the state Department of Transportation’s inventory of local roads lying within the Village’s jurisdiction, and (c) the  Village  “has  never  maintained”  it.  Plaintiffs’ dedication argument is misplaced because…dedication is not the sole means by which a village street may be created (see Village Law  § 6-626). …  Kingsley v Village of Cooperstown, 515535, 3rd Dept, 6-6-13

 

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Sellers Had No Duty to Disclose Recorded Easement—Caveat Emptor

In affirming Supreme Court’s ruling that the defendants had no duty to disclose a recorded easement to the buyers pursuant to the doctrine of caveat emptor, the Second Department wrote:

“New York adheres to the doctrine of caveat emptor and imposes no duty on the seller or the seller’s agent to disclose any information concerning the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller or the seller’s agent which constitutes active concealment” …. “Mere silence on the part of the seller, without some affirmative act of deception, is not actionable as fraud”…. ” To maintain a cause of action to recover damages for active concealment, the plaintiff must show, in effect, that the seller or the seller’s agents thwarted the plaintiff’s efforts to fulfill his responsibilities fixed by the doctrine of caveat emptor”…. “Where the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he must make use of those means, or he will not be heard to complain that he was induced to enter into the transaction by misrepresentations”…. Schottland v Brown Harris Stevens Brooklyn, LLC, 2013 NY Slip Op 03982, 2nd Dept, 6-5-13

 

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No Conversion Action for Real Property; No Conversion Action Where Money Transferred Pursuant to Agreement

In affirming the dismissal of a complaint in which it was alleged the purchase of a building was induced by misrepresentations, the First Department noted there can be no action for conversion of real property, and there can be no action for conversion of money which was transferred pursuant to an agreement:

The motion court properly dismissed plaintiff’s sixth cause of action alleging conversion. As it accurately noted, to the extent plaintiff based that cause of action on an alleged conversion of its 7% fee interest in the premises, the claim must fail because a party may not sustain a claim for conversion of real property …. Similarly, while a party can properly assert a claim for conversion of money …the $2 million cannot be the subject of a conversion claim here. Even accepting the truth of the allegations in the complaint, plaintiff does not allege that defendants wrongfully exercised dominion over those funds in derogation of plaintiff’s ownership … [conversion is the unauthorized assumption and exercise of the right of ownership over goods belonging to another to the exclusion of the owner’s rights][internal citations omitted]). On the contrary, by alleging that it agreed to, and did, transfer the funds in return for the 7% interest in the property, plaintiff tacitly concedes that possession of the money was authorized. B & C Realty, co v 159 Emmut Props LLC, 3013 NY Slip Op 03913, 1st Dept, 5-30-13

 

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