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PLAINTIFF’S ACTION FOR PRIVATE NUISANCE ALLEGING DEFENDANTS’ AIR CONDITIONING UNIT IS TOO LOUD SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the private nuisance cause of action should not have been dismissed. Plaintiff alleged defendants’ air conditioning unit made too much noise:

The elements of a private nuisance cause of action are: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” … . “[E]xcept for the issue of whether the plaintiff has the requisite property interest, each of the other elements is a question for the jury, unless the evidence is undisputed” … .

Here, the plaintiff stated a cause of action to recover damages for private nuisance by alleging that the defendants’ air conditioning and condenser units generated a noise level exceeding that permitted by the Code of the Town of Hempstead … , which interfered with the plaintiff’s use and enjoyment of his bedroom, garden, and patio, and diminished his property value … . Curry v Matranga, 2021 NY Slip Op 03304, Second Dept 5-26-21

 

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ALTHOUGH THE NOTARY STAMP WAS MISSING FROM THE SCANNED MORTGAGE IN THE NYC REGISTER, PLAINTIFF BANK DEMONSTRATED THE MORTGAGE WAS PROPERLY ACKNOWLEDGED WHEN DELIVERED TO THE OFFICE OF THE REGISTER; THEREFORE DEFENDANT’S INTEREST IN THE PROPERTY WAS SUBORDINATE TO THE MORTGAGE (FIRST DEPT).

The First Department, over an extensive concurrence, determined defendant bank demonstrated the mortgage was properly recorded in the NYC Register and, therefore, plaintiff’s interest the property was subordinate to defendant’s mortgage:

The parties do not dispute that the mortgage, as reflected in the records of the Office of the New York City Register, did not bear a notary stamp or any indication that the mortgage was properly acknowledged as required by Real Property Law §§ 291, 298, 309-a(1), and 333(2). However, the bank proffered evidence establishing that the mortgage was properly acknowledged when submitted for recording. This evidence included the original inked mortgage containing the notary public’s information; an affidavit from the notary who affixed her notary stamp at the time; an affidavit from the title company that submitted the mortgage for recording, and an expert affidavit and report by a forensic document examiner in which he concluded that the Register’s scanner could have caused the notary stamp to disappear from the imaged mortgage. Plaintiff has failed to show by clear and convincing evidence that the acknowledgment was defective … . Thus, the bank demonstrated that the mortgage was “entitled to be recorded . . . and is considered recorded from the time of [ ] delivery [to the Office of the New York City Register]” (Real Property Law § 317).

Given that the mortgage was duly acknowledged, delivered and actually recorded, plaintiff is deemed to have constructive notice of it … . 80P2L LLC v U.S. Bank Trust, N.A., 2021 NY Slip Op 03275, First Dept 5-25-21

 

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APPELLANT PURCHASED THE PROPERTY WHILE THE FORECLOSURE ACTION WAS PENDING; APPELLANT’S MOTION TO INTERVENE SHOULD HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined appellant’s motion to intervene in this foreclosure action should have been granted:

The plaintiff commenced this action to foreclose a mortgage given by the defendant Kathleen O. Nocella. Nocella defaulted in appearing in the action. During the pendency of the action, nonparty Henry Irving, LLC (hereinafter the appellant), acquired title to the subject property. In September 2017, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference. The appellant cross-moved, inter alia, for leave to intervene in the action. …

The appellant was entitled to intervene as of right pursuant to CPLR 1012(a) since it established that the representation of its interest by the parties would be inadequate, that the action involved the disposition of title to real property, and that it would be bound and adversely affected by a judgment of foreclosure and sale (see CPLR 1012[a][2], [3]; 6501 …). Contrary to the court’s determination, neither the fact that the appellant obtained its interest in the subject property after this action was commenced and the notice of pendency was filed, nor the fact that the defendants defaulted in answering or appearing, definitively bars intervention … . Moreover, since the appellant’s cross motion, inter alia, for leave to intervene was made before an order of reference or judgment of foreclosure and sale was issued, the plaintiff was not prejudiced by the timing of the cross motion … . Bank of Am., NA v Nocella, 2021 NY Slip Op 03159, Second Dept 5-19-21

 

PLAINTIFF DEMONSTRATED DEFENDANTS’ CONSTRUCTION OF A FENCE VIOLATED A VALID RESTRICTIVE COVENANT IN THE PARTIES’ DEEDS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment should have been granted. Plaintiff alleged defendants violated a restrictive covenant in the parties’ deeds by constructing a fence along the property line:

Plaintiff and defendants own adjoining properties in Wayne County with views of Sodus Bay, and those properties can be traced to one original grantor, nonparty Sodus Bay Heights Land Co., Inc. (Land Company). The Land Company created a subdivision and, between the years of 1924 and 1937, it sold numerous parcels in accordance with its planned development. Plaintiff and defendants obtained title to their property through chains of title that date back to owners who purchased their property directly from the Land Company. Both properties are subject to two relevant restrictive covenants that run with the land. The first stated “[t]hat no line fence shall be erected on said lot without the written consent of the [Land Company], or its successors or assigns.” The second stated “[t]hat no unnecessary trees or other obstructions shall be permitted on said lot which shall hide the view of other residents in Sodus Bay Heights.” * * *

Generally, “[r]estrictive covenants will be enforced when the intention of the parties is clear and the limitation is reasonable and not offensive to public policy”… , and it is well settled that the party seeking to enforce such a restriction “must prove, by clear and convincing evidence, the scope, as well as the existence, of the restriction” … . Here, plaintiff established as a matter of law the scope and the existence of a restriction against fences. Dodge v Baker, 2021 NY Slip Op 02891, Fourth Dept 5-7-21

 

THE PLAINTIFFS WERE ENTITLED TO A DECLARATORY JUDGMENT TO THE EFFECT THE VILLAGE WAS REQUIRED TO REPAIR A BULKHEAD/STORM DRAIN WHICH RAN THROUGH AN EASEMENT ON PLAINTIFFS’ PROPERTY; THE WOODEN BULKHEAD WHICH CRADLED THE DRAIN PIPE HAD DETERIORATED CAUSING SINK HOLES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs were entitled to a declaratory judgment to the effect that the village was required to repair the bulkhead/storm drain pipe that ran through plaintiffs’ property pursuant to an easement. The drain pipe was encased in a wooden bulkhead which had deteriorated, causing sink holes on plaintiffs’ property. The village had refused to repair the bulkhead, claiming it was responsible only for maintenance of the drain pipe:

In 1961, the plaintiffs’ predecessors, who were the parents of the plaintiff June Anson, granted the Village a perpetual easement over a portion of their property, approximately 65 feet long and 10 feet wide, “to construct and maintain one underground storm water drain and one tide gate accessory thereto.” In the easement agreement, the Village was also granted the right and privilege “to do whatever acts [we]re necessary and proper” in the easement premises for maintaining and operating the storm water drain and tide gate. The easement agreement did not assign any responsibility for maintenance of the easement premises to the property owners. * * *

The plaintiffs’ evidence demonstrated, prima facie, that the bulkhead was an integral part of the storm water drainage system currently maintained by the Village on the easement premises. Inasmuch as the easement agreement did not place affirmative responsibility for maintenance of those premises upon the owners of the servient estate, it was the Village’s obligation to maintain the bulkhead … . … [T]he plaintiffs were entitled to a judgment declaring that the Village is required to maintain the easement premises, including the bulkhead, in a proper and safe condition, and an injunction requiring the Village to do so. Anson v Incorporated Vil. of Freeport, 2021 NY Slip Op 02266, Second Dept 4-14-21

 

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THE COMMERCIAL LEASE GUARANTEE MET THE DEFINITION OF AN INSTRUMENT FOR THE PAYMENT OF MONEY; THE COVID-19 RESTRICTIONS ON ENFORCEMENT OF COMMERCIAL LEASE GUARANTEES DO NOT APPLY; THE WARRANTY OF HABITABILITY DEFENSE IS NOT AVAILABLE (FIRST DEPT).

The First Department, reversing Supreme Court, determined: (1) although guarantees generally are not instruments for the payment of money within the meaning of CPLR 3213, the language of the guarantee was unconditional and therefore met the criteria of such an instrument; (2) the COVID-19-related provision of the NYC Administrative Code and executive orders, prohibiting enforcement of commercial lease guarantees, do not apply where the business were not required to cease operations; (3) the warranty of habitability was not available as a defense because of the language of the guarantee; and (4) a commercial tenant cannot assert the warranty of habitability:

While a guarantee of both payment and performance does not qualify as an instrument for the payment of money only under CPLR 3213 … , paragraph 1 of the guaranty signed by defendants includes an unconditional obligation to pay all rent and additional rent owed under the sublease, and therefore does so qualify … ; “it required no additional performance by plaintiff[] as a condition precedent to payment or otherwise made defendant[s’] promise to pay something other than unconditional” … .

While the prohibition on the enforcement of commercial lease guaranties against natural persons under Administrative Code of City of NY § 22-1005 applies to businesses that were required to “cease operation” or “close to members of the public” under executive orders 202.3, 202.6, or 202.7, issued in connection with the COVID-19 pandemic, defendants never asserted that the nonparty subtenant ceased operations or closed to the public as a result of those orders.

Defendants’ claim that they properly raised warranty of habitability defenses under the sublease is without merit. Such defenses are not available to defendants because all defenses under the guaranty, with the exception of prior payment, were waived. Moreover, a commercial tenant cannot avail itself of the statutory warranty of habitability (see Real Property Law § 235-b …). iPayment, Inc. v Silverman, 2021 NY Slip Op 01846, First Dept 3-25-21

 

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PLAINTIFF, WHO PURCHASED THE PROPERTY, SUED THE PRIOR OWNER IN NEGLIGENCE FOR DAMAGES STEMMING FROM PLAINTIFF’S EXPOSURE TO CHEMICAL CONTAMINATION ON THE PROPERTY; LIABILITY FOR A DANGEROUS CONDITION ON PROPERTY GENERALLY CEASES UPON TRANSFER OF THE PROPERTY; THE NEGLIGENCE CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supeme Court, determined plaintiff’s negligence cause of action seeking damages for exposure to contaminants on the land plaintiff purchased from defendant city should have been dismissed. A property owner’s liability for a dangerous condition ceases upon the transfer of the property:

We … agree with defendant that the court erred in denying the motion with respect to the negligence cause of action, and we therefore further modify the order accordingly. That cause of action is based on allegations that plaintiff was injured due to a dangerous condition on the parcel of property that defendant sold to plaintiffs, i.e., chemical contamination, to which plaintiff was exposed after the sale. It is well settled that “[o]ne’s liability in negligence for the condition of land ceases when the premises pass out of one’s control before injury results. Such is the general rule” … . Thus, under that general rule, defendant’s liability for negligence based on a dangerous condition on the property ended when it sold the parcel to plaintiffs … , and “liability may be imposed upon defendant only if the allegedly dangerous condition . . . existed at the time [it] relinquished possession and control of the premises ‘and the new owner has not had a reasonable time to discover the condition, if it was unknown, and to remedy the condition once it is known’ ” … .

Here, defendant met its burden on the motion of establishing that any injury allegedly sustained by plaintiff was caused by exposure after defendant sold the property. In response, “plaintiff[s have] offered nothing to show that [they, as] the new owner[s,] did not have adequate time to discover and remedy such defects” … . Powers v City of Geneva, 2021 NY Slip Op 01684, Fourth Dept 3-19-21

 

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THE CRITERIA FOR APPOINTMENT OF A TEMPORARY RECEIVER IN THIS PARTITION AND SALE ACTION WERE NOT MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the evidence did not support the appointment of a temporary receiver of a residential building and cooperative apartment that were the subjects of a partition and sale action:

CPLR 6401(a) permits the court, upon a motion by a person with an “apparent interest” in property, to appoint a temporary receiver of that property where “there is danger” that it will be “materially injured or destroyed.” However, the appointment of a temporary receiver “is an extreme remedy resulting in the taking and withholding of possession of property from a party without an adjudication on the merits” … .Therefore, a motion seeking such an appointment should be granted only where the moving party has made a “clear and convincing” evidentiary showing of “irreparable loss or waste to the subject property and that a temporary receiver is needed to protect their interests” … .

Here, the plaintiff failed to make the requisite showing. In particular, the plaintiff’s speculative and conclusory allegations that the defendants failed to repair and maintain the subject properties and commingled income derived from the subject properties with their personal income were insufficient to demonstrate that there was a danger of irreparable loss or material injury to the subject properties warranting the appointment of a temporary receiver … . Similarly, without more, the defendants’ failure to maintain adequate records does not demonstrate that the plaintiff’s interest in the subject properties is in imminent danger of irreparable loss or waste … . Cyngiel v Krigsman, 2021 NY Slip Op 01390, Second Dept 3-10-21

 

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SUPREME COURT DID NOT HAVE SUBJECT MATTER JURISDICTION OVER AN ACTION TAKEN BY THE UNKECHAUG INDIAN NATION TO EXCLUDE A MEMBER OF THE NATION FROM A PARCEL OF NATION LAND (SECOND DEPT).

The Second Department determined Supreme Court properly ruled it did not have subject matter jurisdiction over a land-possession dispute within the Unkechaug Indian Nation. The Nation first sought a Supreme Court ruling on the rightful possessor of the land (claimed to be Curtis Treadwell), thereby waiving sovereign immunity on that issue. Then the Nation, pursuant to its own internal Tribal Rules, determined Danielle Treadwell, who occupied a portion of the land, was an “undisirable person” and, based on that finding, could no longer occupy the property. The Supreme Court did not have subject matter jurisdiction over the “undesirable person” action taken by the Nation:

… [B]y bringing the April 2018 determination that Curtis was the rightful possessor of the subject property before the state Supreme Court, and seeking a declaration and enforcement, the Nation waived its sovereign immunity, though only as to that determination and its enforcement … . Accordingly, so long as the Nation relied on the April 2018 determination as its basis for excluding Danielle from the disputed portion of the subject property, the defendants’ counterclaims seeking inverse declarations could proceed along with the Nation’s action for declaratory relief. However, once the Nation proceeded to take the undesirability vote in September 2019 and issue the tribal resolution and directives based upon the membership’s vote, the Nation, pursuant to its own Tribal Rules, created a new and independent basis, under its sovereign authority, for excluding Danielle from the disputed portion of the subject property. The Supreme Court properly recognized that once it was informed of the 2019 undesirability determination, it could not take any action with respect thereto, as this was a sovereign act of the Nation outside the court’s subject matter jurisdiction … . Unkechaug Indian Nation v Treadwell, 2021 NY Slip Op 01286, Second Dept 3-3-21

 

THE LANGUAGE OF THE EASEMENT CREATED AN AMBIGUITY ABOUT WHETHER THE EASEMENT WAS INTENDED TO BE USED TO ACCESS A PUBLIC ROAD; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the language in an easement indicating it is to be used for agricultural activities “and any use incidental thereto” did not support a finding, at the motion-to-dismiss stage, the easement could be used to access a public road:

“Easements by express grant are construed to give effect to the parties’ intent, as manifested by the language of the grant” … . The extent of an easement claimed under a grant is generally limited by the language of the grant, as a grantor may create an extensive or a limited easement” … .

… [T]he plain meaning of the phrase “and any use incidental thereto” contemplates a use incidental to the agricultural activities on easement A, specifically, not agricultural activities outside of easement A. The record contains no evidence demonstrating that the grantor intended to allow the owner of lot 9 to enter easement A for a reason other than to engage in agricultural activities there, and thus, at the very least, there is an ambiguity as to whether [defendant] may use easement A solely as a thoroughfare, warranting denial of its motion to dismiss pursuant to CPLR 3211(a) … . Strong Real Estate, LLC v 55 Town Line, LLC, 2021 NY Slip Op 01280, Second Dept 3-3-21

 

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