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THE OWNER OF THE OLD BRONX COURTHOUSE HAS A VALID CAUSE OF ACTION SEEKING AN EASEMENT BY NECESSITY OVER THE SIDEWALK/STREET ABUTTING THE COURTHOUSE, DESPITE THE “DEMAPPING” OF THE ABUTTING STREET AND THE CONVEYANCE OF THE “DEMAPPED” STREET TO THE DEFENDANT; THE ACTION IS NOT PRECLUDED BY THE STATUTE OF LIMITATIONS BECAUSE IT SEEKS TO QUIET TITLE TO THE OWNER’S LAND (FIRST DEPT).

The First Department, reversing (modifying) Supreme Court, in a full-fledged opinion by Justice Renwick, determined the plaintiff’s action claiming ownership of, or an easement over, the sidewalk/street area abutting plaintiff’s property (the old Bronx courthouse) was properly dismissed, with exception of the claim of an easement by necessity. The street abutting the courthouse had been “demapped” by the city and conveyed to defendants before plaintiff purchased the courthouse property. The deed description of the courthouse property was unambiguous and was not altered by a hand-drawn circle around the property on the recorded tax map. The action was not precluded by the statute of limitations because it is an action to quiet title to the plaintiff’s land:

… [W]here, like here, the owner is in possession, the right of action to remove a cloud on title is a continuous one accruing from day to day, and this right is not barred by the statute of limitations until the cloud is continued without interruption for a length of time sufficient to effect a change of title as a matter of law … . “The reason for this rule is that while the owner in fee continues subject to an action, proceeding, or suit on the adverse claim, he or she has a continuing right to the aid of a court of equity to ascertain and determine the nature of such claim and its effect on his or her title, or to assert any superior equity in his or her favor”… . Accordingly, the owner may wait until his or her possession is disturbed, or his or her title is attacked, before taking steps to vindicate his or her right … . “The requirement of prompt action is imposed as a policy matter upon persons who would challenge title to property rather than those persons who seek to quiet title to their land” … . * * *

… [T]he deed contains no reference to the altered Tax Map, with the hand-drawn circle, purportedly intended to change the boundaries of the property. Nor is there any indication on the altered Tax Map of the circle’s purpose. If the parties wanted to change the boundaries of the property described in the deed and Current Tax Map to include a surrounding demapped street, they could easily have done so by making such notation on the deed and altered Tax Map. Liberty Sq. Realty Corp. v The Doe Fund, Inc., 2021 NY Slip Op 07082, First Dept 12-21-21

 

PLAINTIFF WAS NOT ENTITLED TO AN EASEMENT BY IMPLICATION FOR A DRIVEWAY LEADING TO PLAINTIFF’S GARAGE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was not entitled to summary judgment finding an easement by implication for a driveway leading to a garage on plaintiff’s property. The lot with the driveway, Lot B, and plaintiff’s lot, Lot A, were previously owned by the same party who conveyed Lot A to plaintiff and Lot B to defendant, plaintiff’s sister-in-law:

“An easement may be implied from pre-existing use upon severance of title when three elements are shown: ‘(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 to the beneficial enjoyment of the land retained'” … . “Stated another way, an 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” … . An implied easement must be “a reasonable necessity, rather than a mere convenience” … .

… The plaintiff did not establish that the use of the driveway on Lot B was a reasonable necessity to the beneficial use of the land and not a mere convenience. It is undisputed that Lot A is not landlocked and that the plaintiff can access Lot A without using the driveway on Lot B. … [T]he home situated on Lot A is rented to one set of tenants, and the parking spaces in the garage are rented to another set of tenants. Since access to off-street parking is a mere convenience, the plaintiff cannot establish that the easement is a reasonable necessity. Bonadio v Bonadio, 2021 NY Slip Op 06830, Second Dept 12-8-21

 

UNAMBIGUOUS LANGUAGE IN A DEED MUST BE ENFORCED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined unambiguous language in a deed is not subject to interpretation:

The construction of deeds generally “presents a question of law for the court to decide” … , and deeds must be “construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law” (Real Property Law § 240 [3]). “The ‘intent’ to which [section 240 (3)] refers is the objective intent of the parties as manifested by the language of the deed” … . “[A] court will only look outside the four corners of the deed to establish the intent of the parties when . . . that instrument is found to be ambiguous” … .

In this case, pursuant to the unambiguous language of the corrected deed and the contract of sale referenced therein, Flower [defendant]  transferred “all” of his oil, gas, and mineral rights in the premises … .It is a fundamental principle of deed construction that “[w]hen words have a definite and precise meaning, it is not permissible to go elsewhere in search of conjecture in order to restrict or extend the meaning” … . We conclude that, in determining that Flower intended to transfer … only his right to receive royalties while retaining his right to receive free gas, the court improperly restricted the meaning of the plain language of the corrected deed, particularly the word “all.” BPGS Land Holdings, LLC v Flower, 2021 NY Slip Op 05413, Fourth Dept 10-8-21

 

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THE HOMEOWNERS’ ASSOCIATION ACTED WITHIN ITS AUTHORITY WHEN IT REQUIRED A HOMEOWNER TO TAKE DOWN A FENCE; HOWEVER THE AUTHORITY FOR THE HEAVY FINE (OVER $35,000) WAS NOT VALID PURSUANT TO THE REAL PROPERTY LAW (SECOND DEPT).

The Second Department, reversing (modifying} Supreme Court, determined that the homeowners’ association board (Fieldpoint) had the authority to require a homeowner to take down a fence and to fine the homeowner. However, the rule in effect at the time the fence was erected allowed only a one-time fine of $50.00. Supreme Court had awarded the homeowners’ association over $35,000. The amendment to the by-laws which provided for heavier fines was not incorporated in a recorded amended declaration as required by Real Property Law 339-u:

“‘In reviewing the actions of a homeowners’ association, a court should apply the business judgment rule and should limit its inquiry to whether the action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the association'” … . Accordingly, a court should defer to the actions of a homeowners’ association board so long as the board acts for the purposes of the homeowners’ association, within the scope of its authority, and in good faith … .

… Fieldpoint established … that its actions in denying approval for the fence were protected by the business judgment rule … . In opposition to Fieldpoint’s prima facie showing, the plaintiffs failed to raise a triable issue of fact by submitting evidence that Fieldpoint acted “(1) outside the scope of its authority, (2) in a way that did not legitimately further the [interests of the association] or (3) in bad faith” … . Accordingly, the Supreme Court properly determined that Fieldpoint’s actions in denying approval for the fence were within the scope of its authority and taken in good faith. However, the court should have issued declarations to that effect rather than dismissing the causes of action seeking declarations to the contrary … . Ives v Fieldpoint Community Assn., Inc., 2021 NY Slip Op 05028, Second Dept 9-22-21

 

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THE GRANTOR WAS NOT THE SOLE HEIR OF THE TITLE HOLDER; THEREFORE THE DEED PURPORTING TO TRANSFER A 100% INTEREST IN THE PROPERTY WAS VOID AB INITIO (SECOND DEPT).

The Second Department determined a deed was null and void because the grantor was not the sole heir of the title holder:

By a deed dated July 25, 2012, Colie Gallman, Jr., alleged to be the sole heir of Lillian Hudson, purportedly transferred his 100% interest in certain real property owned by Hudson to the defendant. In January 2015, the plaintiff commenced this action against the defendant seeking a judgment declaring that the July 25, 2012 deed is null and void. * * *

A misrepresentation in a deed that the seller of the property is the sole heir of the holder of the title to the property renders the conveyance void ab initio … . Here, the evidence and affidavits submitted by the plaintiff to the Supreme Court during the course of motion practice in this action established that Colie Gallman, Jr., was not the sole heir of Hudson as of the date of the subject deed, and thus, the deed purporting to convey all of the interest in the subject property is void ab initio … . In opposition, the defendant failed to raise a triable issue of fact. 23A Vernon, LLC v Oneal, 2021 NY Slip Op 05017, Second Dept 9-22-21

 

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WHEN IT IS ARGUED A NECESSARY PARTY WAS NOT SUED, SUMMARY JUDGMENT SHOULD NOT BE GRANTED ON THAT GROUND; RATHER THE PROCEDURE DESCRIBED IN CPLR 1001 (B) SHOULD BE FOLLOWED (SECOND DEPT).

The Second Department noted that a property owner, R.E. Dowling, was a necessary party in this dispute about the existence of easements and that the denial of summary judgment on that ground was proper pursuant to CPLR 1001 (b). The matter was remitted to determine whether the party can be summoned or whether the action can proceed in that party’s absence:

Although the record supports [the]contention that R.E. Dowling is a necessary party, the Supreme Court properly denied that branch of [the] motion which was for summary judgment dismissing the complaint for failure to join R.E. Dowling. Rather than dismissing the action, CPLR 1001(b) requires the court to order the necessary party or parties summoned, where they are subject to the court’s jurisdiction, and “[i]f jurisdiction over such necessary parties can be obtained only by their consent or appearance, the court is to determine, in accordance with CPLR 1001(b), whether justice requires that the action proceed in their absence”… . Thus, the matter must be remitted to the Supreme Court, Suffolk County, to determine whether R.E. Dowling, or its successor in interest as owner of the eastern half of Windmill Lane, can be summoned and, if not, whether the action may nevertheless proceed in that party’s absence.  Sacasa v David Trust, 2021 NY Slip Op 04772, Second Dept 8-25-21

 

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DEFENDANTS PREVAILED IN A SUIT BY PLAINTFF COOPERATIVE PURSUANT TO A PROPRIETARY LEASE; THEREFORE DEFENDANTS WERE ENTITLED TO ATTORNEY’S FEES PURSUANT TO REAL PROPERTY LAW 234 EVEN THOUGH THE ISSUE WAS NOT RAISED IN A COUNTERCLAIM (SECOND DEPT).

The Second Department determined defendants, who prevailed in an action against them by plaintiff cooperative apartment corporation, was entitled to attorney’s fees pursuant to Real Property Law 234 even though that theory was not pled as a counterclaim:

As the prevailing parties to the action commenced against them by the plaintiff pursuant to the proprietary lease, which contained a provision entitling the plaintiff, as lessor, to attorney’s fees incurred in instituting an action against a lessee based on the lessee’s default, the defendants were entitled to attorney’s fees pursuant to Real Property Law § 234, which “provides for the reciprocal right of a lessee to recover an attorney’s fee when the same benefit is bestowed upon the lessor in the parties’ lease” … .

The defendants were entitled to an award of attorney’s fees pursuant to Real Property Law § 234, despite their failure to plead that cause of action as a counterclaim in their answer, since the evidence supported the claim and the plaintiff was not misled or prejudiced by their failure to plead the cause of action … . Round Dune, Inc. v Filkowski, 2021 NY Slip Op 04771, Second Dept 8-25-21

 

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THE STIPULATION OF DIVORCE DIVESTED THE HUSBAND OF HIS RIGHTS IN THE MARITAL PROPERTY; THEREFORE THE HUSBAND’S JUDGMENT CREDITOR COULD NOT REACH THE PROPERTY EVEN THOUGH THE HUSBAND’S NAME REMAINED ON THE DEED (FIRST DEPT).

The First Department, reversing Supreme Court, determined the stipulation of divorce awarding the marital property to the wife, Tiozzo, controlled such that the property could not be reached by the husband’s, Dangin’s, judgment creditor, Lenz. Lenz unsuccessfully argued the property was fair game because Dangin’s name remained on the deed:

The stipulation of divorce thus divested Dangin of his rights in the subject property. Under CPLR article 52 a judgment creditor may only seek to enforce its money judgment against a judgment debtor’s property. “Property” under CPLR 5201(b), whether realty or personalty, is defined broadly as an interest that is present or future, vested or contingent … . However, the determining factor as to whether a judgment debtor’s interest can constitute property vulnerable to a judgment creditor is whether it “could be assigned or transferred” (CPLR 5201[b]). In the stipulation of divorce Dangin gave up any right to assign or transfer to a third party an interest in the subject property. The subject property is therefore beyon.d the reach of Lenz … . Tiozzo v Dangin, 2021 NY Slip Op 04739, First Dept 8-19-21

 

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PLAINTIFF ALLEGED STORM WATER RUNOFF FROM DEFENDANT’S PROPERTY FLOODED PLAINTIFF’S PROPERTY; THE NEGLIGENCE CAUSE OF ACTION SHOULD NOT HAVE BEEN DISMISSED AS DUPLICATIVE OF THE NUISANCE CAUSE OF ACTION BECAUSE NUISANCE MAY INVOLVE INTENTIONAL CONDUCT (THIRD DEPT).

The Third Department, in a decision too detailed to fairly summarize here, determined Supreme Court properly denied summary judgment in this dispute about responsibility for storm water runoff which allegedly flooded plaintiff’s property. Supreme Court, however, erred in dismissing plaintiff’s negligence cause of action as duplicative of the nuisance cause of action:

The effect of defendant’s actions was to eliminate what was described as a retention pond on the cemetery land, causing the water to back up onto plaintiff’s property, which, prior to the placement of fill, had never experienced flooding. Since the fill was placed, plaintiff’s property flooded on four occasions, and plaintiff, after the first flood in February 2009, placed defendant on notice of the flood and the resulting damages and asked for its assistance to remedy the problem. Defendant denied responsibility for the flooding and took no remedial efforts to prevent further flooding. Although the causes of action for negligence and private nuisance arise out of the same undisputed facts, it cannot be said that the private nuisance claim arises solely out of the negligence claim. To the contrary, the facts as alleged in plaintiff’s complaint and bills of particulars demonstrate a viable theory of private nuisance based upon intentional conduct, i.e., that defendant eventually knew or should have known that its actions in placing the fill caused substantial interference and nevertheless continued it … . WFE Ventures, Inc. v GBD Lake Placid, LLC, 2021 NY Slip Op 04683, Third Dept 8-12-21

 

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SEPARATE TRIALS WERE HELD ON THE TORT AND BREACH OF CONTRACT ACTIONS STEMMING FROM DAMAGE TO PLAINTIFFS’ BUILDING CAUSED BY RENOVATION OF DEFENDANT’S NEIGHBORING BUILDING; THE DAMAGES AWARDED IN EACH ACTION WERE BASED UPON THE SAME EVIDENCE OF THE COST OF REPAIR AND ALTERNATE LIVING EXPENSES BUT THE AMOUNTS OF THE AWARDS DIFFERED; SUPREME COURT PROPERLY ENTERED THE DAMAGES AWARDED IN THE BREACH OF CONTRACT ACTION, PLUS INTEREST AND ATTORNEY’S FEES, AS THE APPEALABLE FINAL JUDGMENT (FIRST DEPT).

The First Department, in an extensive opinion by Justice Moulton, addressed several unusual issues stemming from the allegation the renovation of defendant’s neighboring property damaged plaintiffs’ property. Two separate trials were held: a jury trial on tort (negligence) claims; and a nonjury trial on breach of contract claims (i.e., the contract allowing defendants access to plaintiffs’ property to facilitate the renovation). In the nonjury breach of contract action plaintiffs were awarded $6,255,007 for repair costs and $1,152,000 for alternate living expenses. In the jury trial (tort action) plaintiffs were awarded $5,000,000 for repair and $500,000 for alternate living expenses. The issues decided in plaintiff’s appeal are: the breach of contract judgment is appealable as a final judgment; Supreme Court properly precluded expert testimony on the loss of market value in plaintiffs’ home. The issues decided in defendant’s cross appeals are: Supreme Court properly denied defendant’s motion to set aside the breach of contract judgment and adopt the jury’s tort judgment; plaintiffs were entitled to conditional contractual indemnification from defendant. The final judgment which was entered used the breach of contract (nonjury trial) damages, plus interest and attorney’s fees totaling over $12 million. With respect to whether the judgment was appealable as a final judgment, the court wrote:

Our conclusion that the contract judgment is a final judgment starts with the definition of a judgment. “A judgment is the determination of the rights of the parties in an action or special proceeding and may be either interlocutory or final” (CPLR 5011; see also CPLR 105 [k] [“The word ‘judgment’ means a final or interlocutory judgment”]). “[A] fair working definition of the concept can be stated as follows: a ‘final’ order or judgment is one that disposes of all of the causes of action between the parties in the action or proceeding and leaves nothing for further judicial action apart from mere ministerial matters”  … . Shah v 20 E. 64th St., LLC, 2021 NY Slip Op 04587, First Dept 7-29-21

 

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