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Fall After Coverage Ceased Not Covered, Even though Dangerous Condition Alleged to Have Existed Before Termination of Coverage

After the premises was sold it was removed from coverage under a Travelers insurance policy.  Plaintiff slipped and fell on the property ten days after coverage was removed.  Supreme Court determined Travelers was obligated to defend because it was alleged the injury was related to a dangerous condition that existed before the property was sold (when it was insured by Travelers).  In reversing, the Second Department wrote:

Here, the subject insurance policy, read as a whole, clearly and unambiguously provides that the duty to defend and indemnify will attach only to bodily injury caused by an “occurrence” that is covered by the policy and that occurs during the policy period … .Accordingly, Travelers made a prima facie showing of its entitlement to judgment as a matter of law by establishing that the bodily injury for which the plaintiff seeks a defense and indemnification occurred after the premises had been removed from coverage … .Contrary to the plaintiff’s contention, the … allegation that the accident was caused by a dangerous condition that existed on the premises before it was removed from coverage does not obligate Travelers to defend and indemnify it. Since the policy predicates coverage upon the sustaining of bodily injury during the policy period, it is immaterial that the negligent acts which allegedly caused the occurrence took place while the policy covering the premises was still in effect … .  Jericho Atrium Assoc v Travelers Prop Cas Co of Am, 2013 NY Slip Op 03461, 2nd Dept, 5-15-13

SLIP AND FALL

Question of Fact About Whether Solar Panels Violate a Restrictive Covenant Precluded Dismissal of Complaint 

In a decision by Justice Spain, the Third Department reversed the dismissal of a complaint alleging that solar panels installed on defendants’ residential property violated a restrictive covenant.  The Third Department wrote:

We reach a different conclusion, however, with respect to plaintiff’s assertion that the panels  violate the  second restrictive covenant in the deeds, which states: “Said premises shall not be used for the storage of building materials, automobiles  or automobiles  parts, nor  shall any  nuisances  be maintained on said premises, which may be in any manner dangerous or noxious or offensive to the neighborhood inhabitants”   (emphasis added).   We find that plaintiffs have alleged facts that could support a cause of action based on violation of this covenant. Specifically, we  hold that it was sufficient for plaintiffs to allege that the installation of six, 14-foot tall, 8-foot wide solar panels within a neighborhood that carries many aesthetic restrictions is, within the meaning of the restrictive covenant, a nuisance “which may be in any manner dangerous or noxious or offensive to the neighborhood inhabitants.”  Faler v Haines, 515349, 3rd Dept 3-28-13

 

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There Is No Transfer of Property Until the Deed Is Accepted by the Buyer

In a full-fledged opinion by Judge Read, the Court of Appeals determined that a grant of property takes place only when the deed is (1) delivered and (2) accepted.  There was a foreclosure sale.  In order to obtain a judgment for the deficiency between the amount of the foreclosed loan and the actual foreclosure sale price, a motion must be made within 90 days “after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser…”.  In this case the buyer at the foreclosure sale (M & T) did not at first accept the deed because M & T planned to assign its bid prior to the closing.  The deed was returned to the referee who agreed to hold it.  About three months later, M & T asked the referee to execute and resend the deed. About two weeks after that M & T filed a motion for a deficiency judgment. Defendants opposed the motion arguing it was made more than 90 days after the consummation of the sale. The appellate division agreed with the defendants.  The Court of Appeals reversed and wrote:

As a general rule, a deed is presumed to have been “delivered and accepted at its date”; however, this presumption “must yield to opposing evidence” … . Here, M&T’s attorney twice declined to accept or retain physical possession of the referee’s deed dated May 11, 2010. As a result, the referee took back the deed and other closing documents and ultimately executed a deed on August 9, 2010, when M&T’s attorney accepted it … . This constitutes “opposing evidence” sufficient to rebut any presumption of delivery in May 2010 … . M&T’s motion was therefore timely because brought within 90 days “after the date of the consummation of the sale by the delivery of the proper deed of conveyance to the purchaser” (RPAPL 1371 [2]) — i.e., August 9, 2010.  M & T Real Estate Trust v Doyle, 55, CtApp 3-26-13

 

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Criteria for Punitive Damages Award

In an opinion by Chief Judge Lippman, the Court of Appeals explained the criteria for the award of punitive damages in the context of the intentional diversion of storm water onto plaintiff’s property.  In finding the award of punitive damages was not warranted the Court noted:  “…[T]he conduct justifying such an award must manifest ‘spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton’ …, ‘…conduct that represents a high degree of immorality and shows such wanton dishonesty as to imply a criminal indifference to civil obligations’ “. Marinaccio v Town of Clarence, et al, No. 31, CtApp 3-21-13

 

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Injury to Real Property, Waste, Trespass, Conversion and Private Nuisance Actions Based Upon Removal of Trees from Unrecorded Easement

In an action for breach of contract, waste, injury to real property, trespass, conversion and private nuisance, based upon clearing land of trees pursuant to an unrecorded easement, the Second Department wrote:

Pursuant to RPAPL 861(1), a property owner may maintain an action for damages against any person who, without the consent of the owner, removes or causes to be removed trees on the owner’s property … . “To recover damages based on the tort of private nuisance, a plaintiff must establish an interference with his or her right to use and enjoy land, substantial in nature, intentional or negligent in origin, unreasonable in character, and caused by the defendant’s conduct”… . “In order to establish a cause of action to recover damages for conversion, the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question . . . to the exclusion of the plaintiff’s rights” … . * * *

“[A]n unrecorded conveyance of an interest in real property is deemed void as against a subsequent good faith purchaser for value who acquires his interest without actual or constructive notice of the prior conveyance” … . However, “ [w]here a purchaser has knowledge of any fact, sufficient to put him on inquiry as to the existence of some right or title in conflict with that he is about to purchase, he is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to his claim, to be considered as a bona fide purchaser’” …. “This presumption, however, is a mere inference of fact, and may be repelled by proof that the purchaser failed to discover the prior right, notwithstanding the exercise of proper diligence on his part” … .   Schulz v Dattero, et al, 2013 NY Slip Op 01815, 2011-05813, 2012-02942, Index No 876/06, 2nd Dept. 3-20-13

 

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Procedure for Extending Real Property Lien Based on Money Judgment

The procedure for extending a real property lien which is based on a New York money judgment was explained by the Second Department:

Although a New York money judgment is enforceable for 20 years (see CPLR 211[b]), a real property lien resulting from the judgment is viable for only 10 years (see CPLR 5203[a]). For this reason, the Legislature enacted CPLR 5014 to give a judgment creditor an opportunity to extend the life of the lien by commencing an action for a renewal judgment … . “Pursuant to CPLR 5014(1), an action upon a money judgment may be maintained between the original parties where ten years have elapsed since the judgment was originally docketed” … . “An action may be commenced under subdivision one of this section during the year prior to the expiration of ten years since the first docketing of the judgment” (CPLR 5014). The plaintiff here established her prima facie entitlement to judgment as a matter of law awarding her a renewal judgment pursuant to CPLR 5014(1) by demonstrating the existence of the prior judgment, that the defendant was the judgment debtor, that the judgment was docketed at least nine years prior to the commencement of this action, and that the judgment remains partially or completely unsatisfied …. . Rose v Gulizia, 2013 NY Slip Op 01542, 2011-08302, Index No 40635/15, 2nd Dept. 3-13-13

 

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Erroneous Discharge of Mortgage Can Be Set Aside Where No Detrimental Reliance

The Second Department explained: “ ‘ A mortgagee may have an erroneous discharge of mortgage, without concomitant satisfaction of the underlying mortgage debt, set aside, and have the mortgage reinstated where there has not been detrimental reliance on the erroneous recording’ … .Only bona fide purchasers and lenders for value are entitled to protection from an erroneous discharge of a mortgage based upon their detrimental reliance thereon.”  Beltway Capital, LLC v Soleil,et al, 2011-02773, Index no 22244/07, Second Dept. 3-6-13

 

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Standing to Seek Review of Site Plan Approval Based Upon Interest in Protecting the Ecological Health of a Body of Water Adjacent to Petitioner’s Property.

Petitioners had standing to seek review of a planning board’s site plan approval.  Petitioners, who lived one half mile from the site, alleged “direct harm, injury that is in some way different from that of the public at large … .  Their allegations that the approved construction project will harm their regular use, enjoyment, and interest in protecting the ecological health of Stony Brook Harbor, which is adjacent to their property, are sufficient to confer standing …”.  Matter of Shepherd vs Maddaloni, 2011-09750, Index No. 7867/11, Second Dept. 2-27-13

 

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