Law school real property textbooks abound with cases addressing adverse possession, right-of-way disputes and various types of easements (prescriptive, of necessity, and otherwise).  Contemporary decisions still address those usual generic, threshold issues, but also the more granule issues of the location, size and permitted uses of easements, rights of way.  Several recent examples follow. DiDonato v. Dyckman, 2018 NY Slip Op 08113, App. Div. 2nd Dept. (November 28, 2018) The Supreme Court denied the plaintiff’s motion for summary judgment on the amended complaint and granted defendants’ cross-motion for summary judgment declaring that the plaintiff was not entitled to an expansion… Read more

Copyright by, and republished with permission of, Habitat Magazine. In these contentious times, politics at all levels – even at the level of co-op and condo board elections – tend to get ugly. Charges and counter-charges circulate with lightning speed. One recent condo board election led to a lawsuit over the truth of charges emailed by one of the candidates. The case turned on the definition of the D-word: defamation. Sandra Peterson, a unit-owner at Edgemont at Tarrytown Condominium and a former president of the board of managers, was running for election against fellow unit-owner Mary Ellen Maun. During the… Read more

New Yorkers own hundreds of thousands of cats, dogs, farm animals and other pets.  Thus, it is not surprising that accidents and injuries caused by animals are a fertile source of litigation. Several recent examples follow. Thompson v. Brown, 2018 NY Slip Op 08736, App. Div. 3rd Dept. (December 20, 2018) In an action for negligence arising out of the escape of a bull owned by defendants, Supreme Court granted plaintiff’s motion to the extent of finding that plaintiff sustained a serious injury within the meaning of the insurance law. As to liability, the Appellate Division held that: Turning first… Read more

News reports have it that the Chief Judge has admonished the various Departments to constrain themselves in granting motions for leave to appeal to the Court of Appeals – so that the Court may determine what decisions are worthy of further pursuit.  This direction, if true, may account for the fewer number of meaningful decisions on civil matters during the first several months of the Court’s 2018-2019 Term. The Court of Appeals did release decisions having to do with the posting of prices for credit card use; the constitutionality of differential security for cost provisions between residents and non-residents; the… Read more

Copyright by, and republished with permission of, Habitat Magazine. It happens all the time in New York City. Someone buys an apartment relying, without further investigation, on statements made by a sales agent – and then learns, too late, that the statements were incorrect. According to a news report, it happened last year to a purchaser, who placed a $1 million down payment on a $10.5 million Chelsea condo after being told by the selling agent that the ceilings in the under-construction apartment would be “just shy of 10 feet tall” – high enough to accommodate her extensive art collection…. Read more

To establish a claim of title to real property by adverse possession, a party must demonstrate, by clear and convincing evidence, that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years. Needless to say, each and every element of the formula has developed a unique and discrete body of law – pursuant to which a final disposition is, as often than not, fact-specific.  Several recent examples follow. Mazzei v. Metropolitan Trans. Auth., 2018 NY Slip Op 06007, App. Div. 2nd Dept…. Read more

Copyright by, and republished with permission of, Habitat Magazine. It was a grim and bloody night at the Sea Cliff Towers co-op on Staten Island. The New York Times carried this terse account: “A fight between two friends who were dating the same woman ended in the death of one of them, the police said yesterday. On Wednesday night, Michael Cafferata, 33, was visiting Michael Kett, 41, in Fort Wadsworth. The two argued, and Mr. Kett stabbed Mr. Cafferata with a steak knife, the police said. Mr. Kett fled, but was later arrested and charged with second-degree murder.” Years after… Read more

Now that I have your attention:  Litigation abounds over the right to keep/return the deposit when a real estate transaction fails.  Several recent examples follow: Ward Capital Mgt. LLC v. New Pelham Parkway N. LLC, 2018 NY Slip Op 06797, App. Div. 1st Dept. (October 11, 2018) Supreme Court granted defendants’ motion for summary judgment dismissing the complaint; granted their counterclaims to retain plaintiff’s $1 million downpayment; and denied plaintiff’s cross-motion for summary judgment. The Appellate Division, as follows, summarily affirmed: Defendants made a prima facie showing of their entitlement to judgment as a matter of law. They submitted evidence… Read more

A dustup at the Village Dunes co-op in Montauk highlights the differing standards that may govern the enforceability of decisions made by co-op boards. This dispute began when a shareholder sought the consent of the co-op board to make alterations to his apartment, including raising the ceiling of the apartment, enclosing an unfinished common area above the apartment for his exclusive use, and replacing a window with one of a different type and size. The proprietary lease provided that the board could not unreasonably withhold its consent to a proposed alteration. When the board denied the shareholder’s request, he filed… Read more

In a Yellowstone proceeding, a commercial tenant applies to Supreme Court for an Order tolling the time to cure an alleged default asserted by its landlord and staying the termination of the lease and the prosecution of a summary (holdover) proceeding.  In order to obtain relief, the tenant must show that it is “ready, willing and able” to cure the default (if one is found to exist); however, the legal predicate is that the alleged default is, in fact, curable. The following cases summarize recent Yellowstone proceedings in our Courts.  Especially noteworthy are the decisions finding that the failure to… Read more