Article 15 of the New York Real Property Actions and Proceedings Law provides that: “Where a person claims an estate or interest in real property…such person… may maintain an action against any other person, known or unknown… to compel a determination of any claim adverse to that of plaintiff which the defendant makes[.]”
On an almost daily basis, our Courts publish decisions that demonstrate the broad panoply of disputes that are prosecuted under the RPAPL Article 15 “umbrella”. Several recent examples follow:
Loeuis v. Grushin, 2015 NY Slip Op 01926 (2nd Dept. March 11, 2015) arose out of a proceeding “ to quiet title pursuant RPAPL article 15, to declare two deeds and a mortgage null and void, to recover damages for fraud, breach of fiduciary duty, conversion, money had and received, and unjust enrichment, and to impose a constructive trust[.]”
The Appellate Division outlined the facts:
[T]he plaintiff alleges that on May 29, 1992, he and his sister, the defendant Denise Grushin, acquired title to the subject real property where the plaintiff resided using only the plaintiff’s funds. According to the plaintiff, in 2003, he needed money for medical expenses and decided to refinance the mortgage on the subject property to acquire those funds. The defendant Denise Grushin suggested that her husband, the defendant Corey Grushin, handle the transaction, because he was a “real estate professional.” The plaintiff alleges that when he executed the mortgage documents refinancing the property, he was not represented by counsel, and the “defendants slipped a quitclaim deed into the stack of numerous papers which defendants asked plaintiff to sign in connection with the 2003 [r]efinance [t]ransaction.” Although that deed, dated May 12, 2003, placed the property in the sole name of the defendant Denise Grushin, the plaintiff alleges that his intent was not to convey the property, but rather, to refinance the mortgage.
The prior proceedings:
The plaintiff commenced the instant action on July 1, 2010. His amended verified complaint asserted causes of action to quiet title pursuant to RPAPL article 15, for a judgment declaring that the 2003 quitclaim deed, the 2006 deed, and the 2006 mortgage were null and void, a declaration that he owned the subject property, to recover damages for fraud, breach of fiduciary duty, conversion, money had and received, and unjust enrichment, and to impose a constructive trust on the property.
The defendants moved to dismiss the amended complaint pursuant to CPLR 3211(a), arguing, inter alia, that the action was time-barred. In support of the motion, the defendant Denise Grushin submitted an affidavit stating that the plaintiff executed the quitclaim deed to avoid foreclosure by a third-party mortgage creditor, and, thereafter, continued to collect $400,000 in rents from the premises, which he kept. The plaintiff opposed the motion based, inter alia, upon his affidavit, and cross-moved to preliminarily enjoin the defendants from transferring, conveying, mortgaging, or otherwise encumbering the subject property. The order appealed from denied [plaintiff’s] motion and granted [defendants’] cross motion.
[T]he defendants’ primary contention is that the causes of action accrued on May 12, 2003, when the quitclaim deed was executed, and therefore, the commencement of the action on July 1, 2010, over seven years later, was untimely…A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of demonstrating, prima facie, that the time in which to commence the action has expired”…
Actual and constructive fraud:
The plaintiff alleged both actual and constructive fraud. The elements of a cause of action sounding in actual fraud are that the defendant knowingly misrepresented or concealed a material fact for the purpose of inducing another party to rely upon it, and the other party justifiably relied upon such misrepresentation or concealment resulting in injury…The statute of limitations for actual fraud is six years from the commission of the fraud or two years from the time the plaintiff discovered, or could with reasonable diligence have discovered, the fraud, whichever is later. Here, the second and third causes of action are not time-barred insofar as they allege actual fraud, since the action was commenced almost immediately after the plaintiff allegedly discovered the fraud in 2010.
Breach of fiduciary duty:
The second and third causes of action also allege a constructive fraud based on a breach of a fiduciary duty. The defendants, who are the plaintiff’s family members, had a fiduciary relationship with him…The statute of limitations for a cause of action alleging a breach of fiduciary duty does not begin to run until the fiduciary has openly repudiated his or her obligation or the relationship has been otherwise terminated…The defendants’ repudiation of their fiduciary obligation occurred, at the earliest, in 2006, when Denise Grushin conveyed the property to herself and her husband, and they mortgaged the property for $700,000 and took those proceeds. Further, the plaintiff did not suffer damages until 2006, when the defendants encumbered the property with a $700,000 mortgage without his consent[.]
The statute of limitations for a cause of action sounding in breach of fiduciary duty is dependent on the relief sought.* * *Since the plaintiff’s right to the subject property is in issue, awarding damages would not be adequate. Therefore, the six-year statute of limitations for causes of action sounding in equity should be applied…Since the second and third causes of action accrued in 2006, when the defendants allegedly acted contrary to their fiduciary obligations, to the plaintiff’s detriment, those causes of action, interposed four years later in 2010, are not time-barred.
Quit title claim:
The first cause of action, to quiet title pursuant to RPAPL article 15, is not time-barred, since the plaintiff was seized or possessed of the premises within 10 years before the commencement of the action and is in essence seeking a determination that the quitclaim deed which he executed in 2003 was part of a mortgage transaction, and not a conveyance of title[.]
The fourth cause of action, alleging conversion based upon fraud, is not time-barred, since it is governed by the statute of limitations set forth in CPLR 213(8)…
Money had and received:
The fifth cause of action, seeking damages for money had and received…is equitable in nature and, therefore, the applicable statute of limitations is six years…Since the defendants’ receipt of money occurred in 2006, and the action was commenced in 2010, the cause of action is not time-barred. Similarly, the sixth cause of action, sounding in unjust enrichment, is equitable in nature, and is not time-barred…
And constructive trust:
The seventh cause of action alleging a constructive trust is equitable in nature and governed by a six-year statute of limitations…The elements of a cause of action to impose a constructive trust are (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment…The cause of action accrued on the date of the “wrongful transfer” of the subject property…A determination of when the cause of action accrued depends upon whether the constructive trustee acquired the property wrongfully — in which case the cause of action accrued on the date of acquisition — or whether the constructive trustee wrongfully withheld property acquired lawfully from the beneficiary — in which case the cause of action accrued when the trustee breached or repudiated the agreement to transfer the property…The allegations in the instant case indicate that the transfer of the property in 2003 from the joint names of the plaintiff and Denise Grushin to the sole name of Denise Grushin was made in reliance upon the parties’ fiduciary relationship to facilitate a mortgage transaction, rather than as a conveyance of title…The allegedly wrongful transfer harming the plaintiff occurred in 2006, when Denise Grushin transferred the property to herself and her husband, and acting together, they encumbered the entire property — including the plaintiff’s one-half equitable interest. Since the action was commenced in 2010, the cause of action to impose a constructive trust is not time-barred.
DeMaio v. Capozello, 2015 NY Slip Op 00719 (2nd Dept. January 28, 2015), was an action to determine a claim to real property that arose out of:
“[A] long-running dispute over certain real property. [T]he plaintiff tendered a deed to the property to the defendants Robert Capozello and Anna Capozello…After a dispute arose between the plaintiff and the Capozellos regarding the property, the plaintiff commenced this action against the Capozellos. During the pendency of the action, the Capozellos executed a deed purporting to transfer title to the property to Stephen Zangre, who was added as a defendant in the action.”
Upon a prior appeal:
[The Second Department] held that the plaintiff was entitled to summary judgment on the issue of whether the deed he had given to the Capozellos was intended to represent only a security interest in the property. Because the deed was intended to represent only a security interest, it was, by operation of law, only a mortgage. [And the Appellate Division also held] that there were triable issues of fact as to whether Zangre was a bona fide purchaser for value without notice of the instant proceedings…
The Court set forth the prior proceedings:
The plaintiff subsequently moved, inter alia, for summary judgment on the fourth cause of action in his amended complaint, which was for a judgment declaring that any deed held by Zangre is null and void, and does not transfer title to the subject property to Zangre. The Supreme Court denied that branch of the motion on the ground that the plaintiff failed to establish, prima facie, that Zangre was not a bona fide purchaser for value.
The applicable law:
A purchaser of real property who has actual knowledge of a pending lawsuit with respect to the property is bound by the consequences of that lawsuit…except in circumstances not relevant in this case…Here, contrary to the Supreme Court’s determination, the plaintiff established his prima facie entitlement to judgment as a matter of law on the fourth cause of action in his amended complaint by demonstrating, among other things, that Zangre knew of this action before he purchased the subject property from the Capozellos…In opposition, the Capozellos and Zangre failed to raise a triable issue of fact. Accordingly, because Zangre is charged with the knowledge that the Capozellos did not possess title to the property and could not convey title to him, that branch of the plaintiff’s motion should have been granted…
And accordingly the action was:
[Remitted] to the Supreme Court, Suffolk County, for further proceedings on the plaintiff’s remaining causes of action and the counterclaims, and for the entry thereafter of a judgment, inter alia, declaring that any deed held by Zangre is null and void, and does not transfer title to the subject property to Zangre…
Kennedy v. Nimons, 2014 NY Slip Op 07036 (3rd Dept. October 16, 2014) arose when: “Plaintiff commenced [an] action pursuant to RPAPL article 15 seeking to establish the western boundary line of his property pursuant to a 2010 survey prepared by a licensed surveyor, Henry Whitbeck, as subsequently amended in 2012.”
Defendants answered and counterclaimed, “asserting that plaintiff had encroached on their property, as reflected in the 2008 survey of Rodney Michael, also a licensed surveyor”.
The Appellant Division described the prior proceedings:
Defendants moved for partial summary judgment on the issue of the location of the boundary line, and plaintiff opposed and cross-moved for summary judgment seeking a declaration as to the location of the boundary line. Finding that defendants established the boundary line pursuant to the 2008 Michael survey, Supreme Court nonetheless denied both motions, finding that plaintiff raised questions of fact as to whether the boundary line had been changed through adverse possession.
The Third Department affirmed the Decision of Supreme Court because:
In a boundary line dispute, “deeds must be construed in accordance with the parties’ intent and extrinsic evidence is admissible to clarify any ambiguities. Further, references to natural landmarks and artificial monuments take precedence over metes and bounds descriptions”…As the moving party, defendants bore the initial burden of presenting competent admissible evidence demonstrating the absence of any triable issue of fact as to the location of the boundary…To do so, defendants relied upon the 2008 survey and supporting affidavits of Michael delineating the western boundary line. Interestingly, Michael first identified the boundaries of plaintiff’s property in 1981, at the request of plaintiff’s father and predecessor in title, who passed away in 1996. Although he did not prepare an actual survey in 1981, Michael stated that he performed a field survey and set the four corners of plaintiff’s property following the description in a 1794 deed. Michael maintained that his location of the western boundary line was consistent with a 1944 survey prepared by A.F. King for a parcel now owned by defendants along plaintiff’s western border and a 2002 survey prepared for plaintiff by another licensed surveyor, David Dickinson. Michael also explained that he performed work for defendants’ predecessors in title in 1984 and 1995, reaffirming his findings from 1981. This proof was sufficient to demonstrate that the western boundary line of plaintiff’s property was as delineated in Michael’s 2008 survey map, thereby shifting the burden of proof to plaintiff to show otherwise…
In opposition to defendants’ motion and in support of his cross motion for summary judgment, plaintiff submitted the affidavits and survey of Whitbeck. After performing a deed search and field survey, Whitbeck located plaintiff’s property further west than Michael to the Pennroyal Lane bridge culvert in the northwest corner and to a pipe in a stone pile in the southwest corner, adding more than two acres to the parcel than included in the Michael survey. Whitbeck challenged the accuracy of the Michael survey by pointing to Michael’s own 1981 letter explaining that there was a “mathematical, lineal error of closure of 63.71 feet” and that there was “an apparent hiatus” in the northwest corner of plaintiff’s property. Whitbeck asserted that Michael relied on an erroneous deed description that transposed the western boundary line from “twenty four chains and eighty links” to “twenty four chains and eight links,” a difference of 34.21 feet. Whitbeck also maintained that Michael failed to account for field evidence, including angled rock walls and a wire sheep fence in the northwest corner, and a stone wall south of and perpendicular to Pennroyal Lane that ends at the property line shown on Whitbeck’s survey. Moreover, as Whitbeck points out, Michael disregarded the fact that Dickinson amended his 2002 survey in 2006 by adding what Dickinson certified as an “area in question” of 2.03 acres along the western boundary. Neither party submitted an affidavit from Dickinson.
Through this expert evidence, plaintiff met his burden of raising a question of fact as to the location of the boundary line between his property and defendants’ property…However, since Michael countered that Whitbeck’s survey was fundamentally flawed, neither party established a basis for summary judgment. Michael explained that the “pipe in the stone pile” is not an identified monument in plaintiff’s deed and actually marked the northwest corner of property adjacent to and south of plaintiff’s property, not the southwest corner of plaintiff’s property. Michael further countered that his survey comported with a “compilation of deeds” survey and accurately accounted for the evidence in the field. Given this divergent expert evidence, factual issues have been presented as to the location of the western boundary that necessitate resolution at trial.
And the Court continued that:
We also reject plaintiff’s contention that Supreme Court should have granted his cross motion for summary judgment based on the doctrine of practical location. By this doctrine, “[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”…For the doctrine to apply, there must be “a clear demarcation of a boundary line and proof that there is a mutual acquiescence to the boundary by the parties such that it is “definitely and equally known, understood and settled”…Although plaintiff submitted proof that his family used the disputed area for decades as part of their goat farm, the evidence falls short in establishing as a matter of law that the parties mutually agreed upon a defined boundary line…The fact that defendants’ caretaker agreed that Whitbeck’s boundary line was accurate does not establish that defendants’ predecessors in title mutually agreed to that boundary. For the reasons set forth above, plaintiff’s cross motion was properly denied.
5262 Kings Highway, LLC v. Nadia Development, LLC, 2014 NY Slip Op 06797 (2nd Dept. October 8, 2014) arose: “In an action, inter alia, pursuant to RPAPL article 15 to determine claims to real property and for declaratory relief[.]”
Supreme Court “denied [plaintiff’s] motion for summary judgment on the first cause of action, in effect, to quiet title, and for summary judgment declaring that [plaintiff] is the owner of the subject property and that the defendants have no interest in the subject property, for summary judgment on the issue of liability on the second and third causes of action, and for summary judgment dismissing the counterclaim of the defendants Nadia Development, LLC, Kristal Auto Mall, Corp., and Lilaahar Bical, also known as Sammy Bical, which alleged ownership of the subject property by adverse possession.”
The Appellate Division summarized the facts:
The plaintiff and the defendant Nadia Development, LLC (hereinafter Nadia), are the owners of adjoining properties in Brooklyn. The defendant Kristal Auto Mall, Corp. and its principal, the defendant Lilaahar Bical, also known as Sammy Bical (hereinafter collectively with Nadia, the respondents), allegedly operate an automobile dealership on Nadia’s property, as Nadia’s tenant. In April 2011, the plaintiff commenced this action, inter alia, pursuant to RPAPL article 15 to quiet title to a strip of land (hereinafter the subject property) located on the plaintiff’s property, which was included within a fence surrounding Nadia’s property. The respondents asserted a counterclaim which alleged that they had acquired title to the subject property by adverse possession.
The relevant law:
In 2008, the Legislature enacted changes to the adverse possession statutes…In the present case, however, since title allegedly vested by adverse possession at the latest in 1999, the law in effect prior to the amendments is applicable to the respondents’ counterclaim…Accordingly, to establish a claim of title to real property by adverse possession, the respondents must prove, by clear and convincing evidence, inter alia, 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…A title vested by virtue of adverse possession is equally strong as one obtained by grant, and may be divested only by a transfer complying with the formalities authorized by law…
Applied the law to the facts:
Here, the plaintiff’s submissions in support of its motion were insufficient to eliminate all triable issues of fact as to whether the respondents obtained title to the subject property by adverse possession.
And concluded that:
[T]he Supreme Court properly denied the plaintiff’s motion for summary judgment on the first cause of action, in effect, to quiet title, and for summary judgment declaring that it is the owner of the subject property and that the respondents have no interest in the subject property, for summary judgment on the issue of liability on the second and third causes of action, and for summary judgment dismissing the respondents’ counterclaim alleging ownership of the subject property by adverse possession.
Pritsiolas v. Apple Bankcorp, Inc., 2014 NY Slip Op 05851 (2nd Dept. August 20, 2014) arose out of “an action pursuant to RPAPL article 15 to determine claims to real property[.]” Supreme Court granted defendant’s cross-motion for summary judgment and dismissed the complaint.
The Court summarized the facts:
The plaintiffs and the defendant own parcels of real property that are adjacent to one another. The plaintiffs acquired title to their parcel by deed dated January 29, 2001. On September 28, 2012, the plaintiffs commenced this action, seeking a judgment determining that they are the owners of a strip of property, measuring approximately 5 feet in width and 95 feet in length (hereinafter the disputed area), that runs along the southern boundary of their parcel and encroaches on the northern portion of the defendant’s parcel. It is undisputed that a portion of the disputed area has been fenced in since 1992 as part of the rear yard of the residence currently occupied by the plaintiffs. The plaintiffs alleged in their complaint that they acquired title to the entire disputed area in 2002 by adverse possession, arising out of the combined use of the area by themselves and their immediate predecessor in title.
The prior proceedings:
The Supreme Court awarded summary judgment in favor of the defendant, inter alia, dismissing the complaint, and determined that the erection of the fence and the actions taken by the plaintiffs and their predecessor with respect to the disputed area were permissive, and not adverse within the meaning of RPAPL 543.
Summarized the applicable law:
In order to demonstrate adverse possession, the plaintiffs were required to satisfy the common-law elements that the possession was (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years…. Additionally, under the former version of RPAPL 522 that was in effect at the relevant time, the plaintiffs were obligated to establish that the disputed area was either “usually cultivated or improved” or “protected by a substantial inclosure”….
Applied the law to the facts:
Contrary to the determination of the Supreme Court, under the circumstances presented here, the plaintiffs are entitled to tack any period of adverse possession enjoyed by their predecessor in title onto their own period of adverse possession….
* * *
The defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the plaintiffs’ claim of adverse possession of that portion of the disputed area which was unfenced by submitted evidence that the plaintiffs did not engage in any cultivation or improvement of that portion of the property. In response, the plaintiffs merely alleged in vague and conclusory terms that they “planted, watered, landscaped and maintained the entire area,” although they simultaneously admitted that “there is absolutely nothing to maintain” in that portion of the area. At best, the plaintiffs assert that they merely attempted to keep the unfenced portion in presentable condition, which is inadequate to satisfy the requirement that the real property in dispute was usually cultivated or improved…. Since the plaintiffs failed to raise a triable issue of fact in opposition to that branch of the defendant’s motion which was for summary judgment pertaining to the unfenced portion of the disputed area, the Supreme Court correctly granted that branch of the motion.
With regard to the fenced portion, the defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting the affidavits of its senior vice president and of a professional landscaper who had maintained the defendant’s property for some 16 years. These affidavits indicated that the defendant had permitted the encroachment of the fence onto its property as a neighborly accommodation, and that the defendant’s landscaper routinely entered the fenced area, with the knowledge and at least the implicit approval of the plaintiffs and their predecessor, in order to maintain the defendant’s property beyond the fence. These affidavits, in conjunction with various documents submitted by the defendants, indicated that the requirement that the possession of the fenced portion by the plaintiffs and their predecessor occurred under a claim of right was not satisfied…However, the plaintiffs raised a triable issue of fact in opposition to this branch of the motion by submitting the affidavits of the plaintiff James Pritsiolas and of the plaintiffs’ predecessor in title, both of whom denied that the defendant’s landscaper had ever entered onto the fenced portion of the disputed area, and who further averred that they at all times considered the fenced portion to be part of the parcel that was conveyed to them.
And held that:
The Supreme Court erred in applying RPAPL 543 to this action. Although that statute is generally applicable to actions involving claims of adverse possession that are commenced after its effective date of July 7, 2008, it does not apply where, as in this case, the property interest is alleged to have vested by adverse possession prior to the enactment of the statute, since the statute…“cannot be retroactively applied to deprive a claimant of a property right which vested prior to [its] enactment” [and] therefore, the law in effect at the time the plaintiffs claimed to have acquired title must be applied.
* * *
[A] triable issue of fact exists with regard to whether the [plaintiff’s] possession of the fenced portion was under a claim of right….
Scalamander Cove, LLC v. Bachmann, 2014 NY Slip Op 04914 (2d Dept. July 2, 2014) arose out of “an action, inter alia, pursuant to RPAPL article 15 to quiet title to real prooerty[.]”
At the outset, the Court summarized the relief sought and the burden of proof:
The defendants Brett H. Bachmann and Harold Bachmann, Jr.… who sought to obtain title to the subject property by adverse possession, were obligated to prove that the possession was hostile and under claim of right, actual, open and notorious, exclusive, and continuous for a period of 10 years…Further, because the adverse possession claim was not founded upon a written instrument, in order to obtain title to the subject property, the respondents were obligated to establish, in accordance with the law in effect at the time the claim allegedly ripened…“Because the acquisition of title by adverse possession is not favored under the law, these elements” had to “be proven by clear and convincing evidence[.]”
In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds “warranted by the facts,” bearing in mind that in a close case, the trial justice had the advantage of seeing the witnesses and hearing the testimony…Here, the Supreme Court properly concluded that the respondents established, by clear and convincing evidence, the required elements of adverse possession. The Court’s determination in this regard rested largely on its assessment of the respondents’ credibility, and we give deference to that credibility assessment…
And held that:
[T]he Supreme Court properly determined that the respondents are the owners of the subject property by adverse possession, and dismissed the complaint against all of the defendants.
Jiles v. Archer, 2014 NY Slip Op 02262 (2d Dept. April 2, 2014) arose out of “an action pursuant to RPAPL article 15 to compel the determination of claims to real property, and for a judgment declaring that the plaintiff is the owner of the subject property and that the defendant U.S. Bank National Association has no interest in the subject property[.]”
The Court summarized the facts:
The plaintiff entered into an arrangement with her cousin, Gregory Wynn, to purchase certain residential property in Queens County. In July 2002, the property was purchased in the plaintiff’s name. To finance the purchase, the plaintiff obtained a $180,000 loan from a mortgage lender. She did not contribute any money to the purchase, did not intend to reside there, had never visited the property, and did not speak to the tenants who occupied the property. She authorized Wynn to manage the property and pay the mortgage and other property costs with rental income, and Wynn retained any remaining rental income as a commission. The mortgage was satisfied in February 2004, without any contribution from the plaintiff.
In April 2006, a deed purportedly was executed by the plaintiff conveying her interest in the property to the defendant Alana Archer. To finance the purchase, Archer obtained a $500,000 mortgage loan from First Franklin. In November 2006, the mortgage was assigned to the defendant U.S. Bank National Association (hereinafter U.S. Bank). Archer subsequently defaulted in paying the mortgage, and U.S. Bank commenced a mortgage foreclosure action against her.
The prior proceedings:
The plaintiff commenced this action pursuant to RPAPL article 15 to compel the determination of claims to the property and for a judgment declaring that she is the lawful owner of the property. She alleged that the 2006 deed was a forgery and was, therefore, void, and the mortgage held by U.S. Bank was invalid. After this action was commenced, pursuant to a judgment of foreclosure in the action by U.S. Bank against Archer, U.S. Bank purchased the property at a foreclosure sale and obtained a referee’s deed purporting to convey the property to it.
Following a nonjury trial, the Supreme Court found that the 2006 deed was a forgery, but the plaintiff was barred from seeking equitable relief because she had unclean hands in the purchase and sale of the property. The court dismissed the complaint, and the plaintiff appeals.
The applicable law:
A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid”[.] “If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing”[.] Here, as the Supreme Court found, the plaintiff established that the 2006 deed was a forgery.
The doctrine of unclean hands may bar a party from seeking equitable relief “when the complaining party shows that the offending party is guilty of immoral, unconscionable conduct and even then only when the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct”[.] Contrary to the Supreme Court’s determination, U.S. Bank failed to show that the plaintiff was guilty of immoral or unconscionable conduct. There is no evidence that she was a willing participant in a mortgage fraud scheme. Indeed, there is no evidence of any fraud involved in the transaction—the mortgage was satisfied within two years. In addition, there is no evidence that the plaintiff intended to defraud when she used her name and credit to purchase the property. Moreover, U.S. Bank was not injured by her conduct in purchasing the property[.]
Applied the law to the facts:
Furthermore, there is no evidence that the plaintiff or Wynn was involved, in any way, in the fraudulent 2006 transaction. Assuming that a power of attorney executed by the plaintiff in 2003, which granted Wynn the authority to act on her behalf in real estate transactions involving the property, was properly admitted into evidence, that document does not prove that Wynn played a role in the forgery.
And concluded that:
Accordingly, since the plaintiff established that the 2006 deed was a forgery, and U.S. Bank failed to establish its defense of unclean hands, that deed is void, the mortgage based on the deed and assigned to U.S. Bank is invalid, the referee’s deed in U.S. Bank’s name is void, and the plaintiff is entitled to judgment on the complaint.
Klein v. Aronshtein, 2014 NY Slip Op 02264 (2d Dept. April 2, 2014) also arose out of “[A]n action, inter alia, pursuant to RPAPL Article 15 to compel the determination of claims to certain real property[.]”
The Court summarized the facts:
The plaintiffs and the defendants own adjacent parcels of real property along a channel known as the Waukena Waterway in Oceanside, Nassau County. The waterway terminates at a right angle formed by the southern boundary of the plaintiffs’ property and the eastern boundary of the defendants’ property. The defendants also own the underwater parcel abutting the parties’ waterfront properties. Each waterfront property was purchased with a dock structure extending over the water above the underwater parcel.
The prior proceedings;
After a dispute arose between the parties over the positioning of their dock structures, the plaintiffs commenced this action, inter alia, to compel the determination of claims to the underwater parcel, alleging that they had acquired title to a portion of the parcel through adverse possession by maintaining their dock structure over the water. The defendants asserted counterclaims alleging trespass and interference with their riparian rights. Thereafter, the plaintiffs moved for summary judgment on their adverse possession cause of action, and the defendants cross-moved, inter alia, for summary judgment dismissing the adverse possession cause of action and to recover on their counterclaims. The Supreme Court denied the plaintiffs’ motion, granted that branch of the defendants’ cross motion which was for summary judgment dismissing the adverse possession cause of action, denied those branches of the defendants’ cross motion which were for summary judgment on their counterclaims, and determined that the plaintiffs are entitled to riparian rights over the subject property.
The applicable law:
To establish a claim of title by adverse possession, a party must prove that “(1) the possession was hostile and under claim of right; (2) it was actual; (3) it was open and notorious; (4) it was exclusive; and (5) it was continuous for the statutory period of 10 years”[.] In addition, where “the adverse possession is not founded upon a written instrument, the possessor must also establish, in accordance with the law in effect at the time this action was commenced, that the disputed property was either usually cultivated or improved’ or protected by a substantial inclosure’”[.] “Because the acquisition of title by adverse possession is not favored under the law, these elements must be proven by clear and convincing evidence”[.]
And applied the facts to the law:
Here, the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the cause of action alleging adverse possession. The defendants, in support of their cross motion, established their prima facie entitlement to judgment as a matter of law dismissing this cause of action by demonstrating that the plaintiffs’ use of the subject property was not hostile and under a claim of right[.] In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly denied the plaintiffs’ motion for summary judgment and granted that branch of the defendants’ cross motion which was for summary judgment dismissing the cause of action alleging adverse possession.
Elam v. Altered Ego Realty Holding Corp., 2014 NY Slip Op 01292 (2d Dept. February 26, 2014) arose out of “an action pursuant to RPAPL article 15 to quiet title to real property[.]”
The Court summarized the facts:
By deed dated March 16, 1988, and recorded on March 24, 1988, the plaintiff’s decedent acquired title to the subject premises. The decedent purportedly conveyed title to the subject premises to the defendant Altered Ego Realty Holding Corp. (hereinafter Altered Ego), by deed dated March 11, 1998, and recorded on March 12, 1998. Thereafter, title to the subject premises was purportedly transferred multiple times until it was ultimately transferred to the defendants Christina H. Prostano and Charles W. Waldron (hereinafter together the moving defendants) by deed dated March 15, 2002, and recorded on April 8, 2002.
In June 2010, the plaintiff, as executor of the decedent’s estate, commenced this action to quiet title to the subject premises, alleging, among other things, that the decedent’s signature on the 1998 deed conveying title to the subject premises to Altered Ego was forged and, therefore, the 1998 deed as well as all subsequent deeds and mortgages were void. The moving defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them on the ground that the action was time-barred, and the plaintiff cross-moved pursuant to CPLR 3215 for leave to enter judgment against Altered Ego upon its failure to appear or answer the complaint.
The applicable law:
Contrary to the moving defendants’ contention, this action, in which the plaintiff seeks to quiet title, is governed by the 10–year statute of limitations of CPLR 212(a)[.] Moreover, the plaintiff sufficiently alleged possession of the subject premises. In this regard, CPLR 212(a) provides that “[a]n action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action”[.] However, CPLR 212(a) must be read together with RPAPL 311, which provides that “the person who establishes a legal title to the premises is presumed to have been possessed thereof within the time required by law; and the occupation of the premises by another person is deemed to have been under and in subordination to the legal title unless the premises have been held and possessed adversely to the legal title for ten years before the commencement of the action”[.]
And applied the law to the facts:
Here, the plaintiff sufficiently alleged possession of the subject premises within 10 years of commencing this action by asserting that the 1998 deed to Altered Ego, as well as each subsequent deed in the chain of title, was void. Under these circumstances, “the plaintiff, as the alleged legal title holder of the premises, is presumed to have possession of the premises within the time required”[.] Accordingly, the Supreme Court should have denied the moving defendants’ motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. Id.
Yauchler v. Serth, 2014 NY Slip Op 01233 (2d Dept. February 20, 2014) arose out of the following facts and prior proceedings:
In October 2005, defendant sold plaintiff a parcel of lakefront property. In the deed, defendant reserved to himself certain rights to the use and “stewardship” of a boat launch area and agreed to assume certain responsibilities related to those rights. Plaintiff commenced this action pursuant to RPAPL article 15 seeking a declaration that defendant had forfeited his rights as to the boat launch area by failing to fulfill his obligations under the deed. Plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. Supreme Court denied plaintiff’s motion and granted defendant’s cross motion. Plaintiff appeals.
The Appellate Division concluded that:
Initially, defendant’s affirmation dated December 23, 2011 and its attachments should not be considered on the motions [FN1]. It is unclear whether Supreme Court considered these papers as, contrary to statute, the order does not “recite the papers used on the motion[s]” (CPLR 2219 [a]). In any event, defendant could not validly submit an unsworn affirmation, as he is a party to this action and is not an attorney (see CPLR 2106). The annexed documents are not certified (see CPLR 2105; see also CPLR 5532) and, as we cannot rely on defendant’s affirmation, they lack context and foundation. Accordingly, we will not consider any of the materials contained in the supplemental record, as none of them was properly before Supreme Court[.]
Supreme Court erred in dismissing the complaint in its entirety, as questions of fact exist regarding whether defendant violated certain terms of the deed. Plaintiff claims that defendant materially breached the terms of the deed by: (1) failing to provide proof of adequate insurance on the boat launch; (2) failing within the year preceding commencement of the instant action to notify plaintiff of the names of all persons who possess keys to the boat launch gate; (3) failing within the year preceding commencement of the action to supply plaintiff with the names and telephone numbers of all persons whom defendant has allowed to access the lake via the boat launch; (4) failing to properly maintain the boat launch, causing or permitting it to become strewn with trash; and (5) wrongfully interfering with plaintiff’s use and quiet enjoyment of his property by changing the lock on the boat launch gate and refusing to supply plaintiff with a key or combination to the lock. In support of his motion for summary judgment, plaintiff submitted, among other things, his sworn affidavit and verified complaint alleging the aforementioned violations of the deed, and a copy of the deed, which provides, in pertinent part, that: “[Defendant] will construct a gate and maintain the boat launch at his own cost and expense. There will be a minimum of [$1 million] of insurance on the boat launch at all times provided by [defendant]. The launch will be closed to the public at all times except for the persons who are residents of Mariaville. They can get a key with a signed blue tag from [defendant]. [Defendant] will annually provide the names and phone numbers of all people using the boat launch to [plaintiff], and update it periodically every time five (5) individuals are added to the list of users. [Defendant] will be allowed 3 non-residents to use the boat launch only if their names and phone numbers are provided ahead of time to [plaintiff]. [Defendant] must show proof of insurance yearly to [plaintiff]. If [defendant] violates any of the terms of this agreement, [defendant] will then forfeit his stewardship of the boat launch. Violations must be determined by a court of competent jurisdiction. [Plaintiff] will have a key or access to the boat launch.”
Defendant submitted his sworn affidavit denying plaintiff’s allegations. Defendant also submitted a copy of his September 2010 letter to plaintiff, which enclosed a list of people who had keys to the boat launch at the time and proof of insurance coverage from April 2010 through April 2011, as well as the certified mail receipt showing that plaintiff’s wife signed for the correspondence in October 2010. Although plaintiff contends that he was not provided with proof of current insurance, he failed to establish that defendant was in breach of the terms of the deed, which only requires defendant to “show proof of insurance yearly” to plaintiff, without specification as to a date by which this must be accomplished. The record shows that, since 2005, defendant has maintained yearly insurance on the property, with plaintiff listed as a certificate holder on the policy, and has provided plaintiff with proof of such insurance by letter at least once each year. The letters also included lists of people who had keys to the boat launch at the time. Based upon this evidence, defendant established his entitlement to summary judgment as to plaintiff’s first two allegations and plaintiff failed to offer any evidence sufficient to require a trial of any issue of fact as to these two claimed breaches of the deed[.]
As for plaintiff’s third allegation, the deed requires that defendant “annually provide the names and phone numbers of all people using the boat launch to [plaintiff].” Defendant did not offer proof that the people who had keys were the only people permitted to use the boat launch. Thus, it is unclear if defendant complied with this term of the deed, making summary judgment inappropriate as to that allegation.
Regarding plaintiff’s fourth allegation, that defendant has failed to properly maintain the boat launch, plaintiff averred that defendant permitted the property to become strewn with trash. On the other hand, defendant averred that he saw plaintiff’s relatives dumping trash on the boat launch. In addition to this factual disagreement, the meaning of the term “maintain” is not precisely defined in the deed and there is a reasonable basis for difference of opinion, namely, whether this term includes removal of garbage. In light of the factual dispute and the ambiguity of this provision in the contract, the related allegation was not ripe for summary judgment[.]
Plaintiff’s fifth and primary contention is that defendant interfered with plaintiff’s use and quiet enjoyment of his property by replacing plaintiff’s lock on the boat launch gate with defendant’s lock and refusing to provide plaintiff with a key or the combination to the lock. The parties seem to acknowledge that each has cut off locks placed on the gate by the other party. Although it is not included in the paragraph concerning the boat launch, the deed does contain a covenant of quiet enjoyment. Based on the placement of that covenant, it is unclear whether the parties intended that a violation of that term would result in defendant’s forfeiture of his stewardship of the boat launch. Aside from the ambiguity regarding that term in the deed, defendant argues that since he has stewardship of the boat launch, his lock should be on the gate. Defendant explained that he switched to a combination lock because plaintiff was handing out keys to random people who did not have a right to use the boat launch; defendant agreed to give plaintiff the combination whenever requested, but defendant planned to replace the lock every time he gave the combination to plaintiff. The heart of the matter appears to be the level of access that plaintiff should have to the boat launch and whether plaintiff should have unfettered access or should have to request access from defendant each time he wants to use the boat launch that is on plaintiff’s own property. While the deed provides that defendant will manage third-party access to the boat launch, the parties did not define the term “stewardship” in the deed nor did they indicate the level of control that this right granted to defendant — i.e., whether the deed granted defendant control that is superior to that of plaintiff. Summary judgment would be premature, as evidence regarding the parties’ intent is needed to resolve these ambiguities regarding material terms in the deed[.]
Faviola, LLC v. Patel, 2014 NY Slip Op 01147 (2d Dept. February 19, 2014) arose out of “an action pursuant to RPAPL article 15 for a judgment declaring that the plaintiff has an easement by necessity for ingress and egress over a portion of certain real property, and for injunctive relief[.]”
The Court summarized the facts and prior proceedings:
The plaintiff sought a judgment declaring that it had an easement by necessity over an alleyway on certain real property, designated Lot 115, in order to access its property, designated Lot 215. The Supreme Court properly declared that the plaintiff has a right-of-way access easement over the alleyway, properly directed the owners of the subject property, the defendants Pravinkumar Patel and Anita Patel (hereinafter together the Patel defendants), to remove any obstructions from the alleyway, and properly enjoined them from interfering with the plaintiff’s access to and transit across the subject alleyway. Id.
The applicable law:
The party asserting that it has an easement by necessity bears the burden of establishing by clear and convincing evidence that there was a unity and subsequent separation of title, and that at the time of severance, an easement over the servient estate was absolutely necessary to obtain access to the party’s land[.] The necessity must exist in fact and not as a mere convenience, and must be indispensable to the reasonable use of the adjacent property[.] There is no dispute here that there was unity and subsequent separation of title, as the Patel defendants acknowledge that they owned both Lots 115 and 215 from January 1991 until April 1996, when Lot 115 was subdivided and Lot 215 was sold to the plaintiff’s predecessor in interest.
And applied the law to the facts:
The plaintiff established that the easement through the alleyway on Lot 115 was absolutely necessary to gain access to Lot 215. The Patel defendants do not dispute that Lot 215 has no direct access to a public highway or street, without the necessity of crossing a lot owned by the Patel defendants or by a third party. The plaintiff adduced proof that, upon subdivision, Lot 215 became landlocked with no access to a public highway or street[.] The landlocked status of Lot 215 was a direct result of the partition effected by the Patel defendants’ subdivision of Lot 115, and the sale of Lot 215, in 1996. That landlocked status gave rise to a right-of-way by necessity across Lot 115 for the benefit of Lot 215 (see Bogart v. Roven, 8 AD3d 600, 602). The need to use the alleyway on Lot 115 to access the property was not a mere convenience[.]
Trask v. Tremper Prop. Assn., Inc., 2014 NY Slip Op 08287 (3d Dept. November 26, 2014) arose from the following facts:
Defendant, an incorporated property association, acquired real property in 1960 abutting a lake and it subdivided the parcel into 13 lots. It then assigned the lots to its founding members, including Otis Rawalt and Roberta Rawalt, by provision of certificates of ownership. The Rawalts’ certificate of ownership stated that they were owners of the parcel “subject to the provisions of [defendant’s] [c]ertificate of [i]ncorporation…and further subject to all the provisions, conditions, restrictions and covenants contained in [defendant’s] by-laws” that had been adopted in 1960. Plaintiffs purchased their parcel from the estate of Roberta Rawalt in 2004. The contract of sale expressly provided that defendant remained the title owner of the property and that the conveyance to plaintiffs was subject to defendant’s organizational rules and bylaws. Shortly thereafter, defendant issued plaintiffs’ realty trust a certificate of ownership providing, among other things, that plaintiffs’ acquisition of the parcel was subject to defendant’s bylaws and certificate of incorporation.
And subsequent developments:
At the time of their purchase of the property, plaintiffs were aware that defendant had created a common swimming area that extended along the shoreline of plaintiffs’ parcel. However, plaintiffs grew dissatisfied with the location of the swimming area in that it interfered with their ability to access their dock by boat, fish and otherwise enjoy the lakefront property. They therefore commenced this action seeking a declaration of their interests in the property pursuant to RPAPL article 15 and alleging trespass and nuisance causes of action. Defendant served an answer and, approximately one month later, moved for dismissal of the complaint pursuant to CPLR 3211 (a) (1) and (7). Supreme Court granted the motion, prompting plaintiffs to appeal. Plaintiffs argue that defendant’s motion pursuant to CPLR 3211 (a) (1) was improperly granted inasmuch as defendant’s documentary submissions did not constitute undisputed evidence that conclusively disposed of the claims in the complaint. Although Supreme Court did not specify in its order that it was premising its dismissal of the complaint upon CPLR 3211 (a) (1), we agree with plaintiffs’ contention that it was erroneous to do so.
The Court recited the applicable law:
A motion under CPLR 3211 (a) (1) is properly granted “only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law”…The documents that defendant submitted in support of its motion included, among other things, its certificate of incorporation, its deed to the property, a copy of defendant’s 1987 bylaws, a subdivision map, minutes and notes from certain membership meetings, plaintiffs’ contract of sale and a certificate of ownership of other members of defendant. However, as the majority of these evidentiary items — including defendant’s undated meeting minutes and the unsigned 1987 amended bylaws — are not “unambiguous and of undisputed authenticity,” they do not provide a basis to dismiss the complaint…
Nonetheless, consideration of defendant’s bylaws and the provision that all members of defendant are granted access to the “water front and swimming area” of the lake does not resolve, as a matter of law, plaintiffs’ claims that defendant, the conceded fee owner of the property, has violated plaintiffs’ riparian rights in its placement of a common swimming area across plaintiffs’ parcel…Likewise, defendant’s certificate of incorporation failed to dispose of plaintiffs’ claims, as such document merely states that defendant was incorporated “[t]o purchase, develop, maintain, equip and operate certain lands abutting on the shores of Queechy Lake…as a vacation and resort area for the mutual enjoyment and comfort of its members,” thereby leaving unanswered the question regarding plaintiffs’ alleged rights to unfettered lake access and, further, the complaint’s trespass and nuisance claims. Finally, while plaintiffs’ and the Rawalts’ certificates of ownership include a metes and bounds description of the property conveyed by defendant, because such documents did not contain an express reservation of underwater rights to defendant, dismissal of the complaint based upon these documents was not warranted…
And applied the law to the facts:
Here, plaintiffs sufficiently pleaded a viable claim pursuant to RPAPL article 15, having alleged that their certificate of ownership allows them certain property rights, including riparian rights to unfettered access to the lake, and that defendant has continually interfered with such riparian rights…Having sufficiently pleaded a legally cognizable claim, plaintiffs’ first cause of action “survive[s] dismissal under the liberal test employed on a CPLR 3211 motion”…
Nor was the dismissal of plaintiffs’ trespass and private nuisance causes of action appropriate, as the complaint alleged that defendant’s maintenance of a roped-off swimming area directly in front of plaintiffs’ property was contrary to plaintiffs’ riparian rights and without authorization…and, further, that it substantially interfered with plaintiffs’ use and enjoyment of their lakefront property…In an affidavit opposing defendant’s motion, plaintiff Robert B. Trask maintained that, although certain of defendant’s board members had confirmed at the time of plaintiffs’ purchase of the parcel that the location of the swimming area would be altered upon plaintiffs’ request and, further, that plaintiffs’ acquisition of the parcel would include “full access and use of the frontage of the parcel to access Queechy Lake,” plaintiffs’ request to move the area was denied by defendant, thereby preventing plaintiffs from being able to dock their boats, use their kayaks and fish off the lakefront with their grandchildren. Accepting these assertions as true, plaintiffs have stated cognizable trespass and nuisance claims, thereby immunizing such causes of action from dismissal under CPLR 3211 (a) (7).
New York Greek American/Atlas Soccer Team, Inc. v. 25-33 Astoria Blvd., John Mannis, Sr. and John Mannis, Jr., 2014 NY Slip Op 33097(U) (Sup. Ct., Q. Co., June 25, 2014, Weiss, J.) arose out of the following facts:
Plaintiff New York Greek American/Atlas Soccer Team, Inc., commenced this action on January 31, 2014, pursuant to Article 15 of the Real Property Action and Proceedings Law, seeking a judgment declaring that they are the lawful owners, by adverse possession, of certain real property located at 25-33 Astoria Boulevard , Astoria, New York. Said real property is improved by a three story building which consists of a main floor, a second and third floor with residential apartments and a cellar. Plaintiff’s first cause of action for adverse possession is asserted against 25-33 Astoria Blvd. Corp. The second cause of action for adverse possession is asserted against John Mannis Sr., and John Mannis Jr., who entered into a ten year lease for the main floor and basement level of the premises in September 2013.
The Court described plaintiff’s allegations:
Plaintiff alleges that the Greek American Club, Inc. was “organized” (incorporated) on July 14, 1958; that the Greek American-Hellenic Sport Club of New York, Inc. was incorporated on May 5, 1977 and succeeded the Greek American Club, Inc.; and that the New York Greek American/Atlas Soccer Team, Inc. was incorporated on February 19, 1998 and succeeded the Greek American-Hellenic Sport Club of New York, Inc. Plaintiff claims that it and its predecessors, have been in actual, open, notorious, and continuous possession of the subject real property since September 5, 1973.
It is alleged that the Greek American Club Inc. owned real property located at 31-08 Astoria Boulevard, Astoria, New York, which it utilized as its headquarters. Said real property was sold on May 1, 1973 and it is alleged that a portion of the proceeds of sale were used by said club and its members to acquire the subject premises on September 5, 1973. It is also alleged that members of said club also made donations, contribution and “advances” that were used to acquire the subject real property; and that said “advances” were repaid by the plaintiff and/or its predecessors. Plaintiff alleges that said club made unspecified improvements and renovations to the subject premises for its own benefit and that of its members. Plaintiff alleges that the Greek American Club Inc. continuously and exclusively occupied the premises from September 5, 1973 to May 4, 1977, without paying rent, use and occupancy, or other consideration, and that said club operated, maintained and controlled the premises during said time period.
Plaintiff alleges that on May 5, 1977 the Greek American Club Inc. was succeeded by the Greek American-Hellenic Sport Club of New York, Inc., on May 5, 1977, and that a majority of the members of said club were members of the Greek American Club, Inc. It is alleged that the Greek American-Hellenic Sport Club of New York, Inc. entered into possession of the subject premises on May 5, 1997; made unspecified improvements and renovations to the subject premises for its own benefit and that of its members; and that it continuously and exclusively occupied the premises from May 5, 1977 to February 18, 1977, without paying rent, use and occupancy, or other consideration; and that said club operated, maintained and controlled the subject premises during said time period.
Plaintiff alleges that it succeeded the Greek American-Hellenic Sport Club of New York, Inc. on February 19, 1998; that a majority of its members were members of the Greek American-Hellenic Sport Club of New York, Inc; that plaintiff entered into possession of the subject premises on February 19, 1998; that plaintiff made unspecified improvements and renovations to the subject premises for its own benefit and that of its members; that it has continuously and exclusively occupied the premises from February 19, 1998 to the present without paying rent, use and occupancy, or other consideration; and that said plaintiff has operated, maintained and controlled the subject premises from February 19, 1998 to the present.
Plaintiff alleges that the two apartments on the second and third floors of the premises have been rented to third parties, since September 5, 1973, and that the income generated from these rental units have been used to pay real estate taxes, water and sewer, insurance and heating for the premises, for the benefit of the plaintiff, its predecessors and their respective members.
Defendants have served an answer, and now move for summary judgment dismissing the complaint on the grounds that the plaintiff cannot establish its claims for adverse possession. Defendant 25-33 Astoria Blvd. Corp. asserts that it was incorporated in 1973, and has owned the subject improved real property since that time. It is asserted that it maintains the premises, collects the rents, pays the taxes and utilities, and has historically supported a soccer club with its net income, pursuant to a trust agreement dated April 15, 1998. It asserts that plaintiff’s occupancy of the main floor of the subject premises has always been permissive, and not hostile or adverse to the defendants. Defendants also assert that plaintiff’s occupancy of the premises has never been exclusive, as there have always been residential rent paying tenants in the upper floors. It is further assert that plaintiff cannot establish a “claim of right”, as this claim was first raised in this action and the club previously acknowledged in a complaint in a 2011 lawsuit that 25-33 Astoria Blvd. Corp. owned the property and that the club occupied or utilized the first floor of the premises.
Justice Weiss found the following facts to be undisputed:
It is undisputed that on April 14, 2011, a special meeting of the trustees was held at which time, by a vote of 7-3, it was agreed that the subject real property would either be sold, with the proceeds donated to St. Michael’s Home for the Aged, or that the property would be deeded as an outright gift to St. Michael’s Home for the Aged. The three dissenting trustees were Peter Eliou, George Mellis and Gus Andreikopoulos. The April 14, 2011 resolution has given rise to two prior lawsuits. On February 2, 2011, an action for declaratory judgment was commenced under Index No. 2509/201l by the Greek American Atlas Soccer Club against 25-33 Astoria Boulevard Corp., as well as ten of the trustees who had voted on April 14, 2011. The plaintiff therein sought a declaration to the effect that the trust must provide the net income from the rental property to the plaintiff and that it may not sell or convey the property. The Honorable Roger N. Rosengarten, in an order dated October 11, 2011, dismissed the complaint and any cross claims against the defendants, on the grounds that the plaintiff was not a trust beneficiary and lacked standing to challenge the trustees’ conduct under the trust agreement. The cross motion by the dissenting trustees, codefendants Peter Eliou, George Mellis and Gus Andreikopoulos, to disqualify was denied as moot. As not all of the defendants’ interests were aligned, the court stated that these three dissenting trustees would have standing to bring on action on behalf of the trust, and therefore the dismissal was without prejudice to such a plenary action.
On November 1, 2011, Peter Eliou, George Mellis and Gus Andreikopoulos commenced an action against 25-33 Astoria Boulevard Corp. and the seven trustees who voted in favor of the April 14, 2011 resolution (Index No. 24849/2011). The plaintiffs therein sought, among other things, an injunction to prevent the sale of the subject real property, and alleged that 25-33 Astoria Boulevard Corp. was the owner of the subject real property; that the trust was created to sustain a soccer club, which since its inception has been the Greek American Atlas Soccer Club, and that said club had utilized the ground floor of the subject premises since approximately 1973. Said action was discontinued pursuant to a stipulation dated July 16, 2012.
In September 2013, John Mannis Sr., and John Mannis Jr., entered into a ten year lease agreement with 25-33.
Outlined the applicable law:
To establish a claim to property based on adverse possession, a plaintiff must prove the common law requirements that possession of the subject property was hostile, under a claim of right, actual, open and notorious, exclusive, and continuous for the statutory 10-year period…Stated differently, for title to vest under the doctrine of adverse possession “there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period”…As the acquisition of title to land by adverse possession is not favored under the law, the elements of such a claim must be proven by clear and convincing evidence…
And granted defendants’ motion to discuss, concluding that:
Prior to July 2008, a party seeking to establish title by adverse possession on a claim not based upon a written instrument had to show that the land was “usually cultivated or improved” or “protected by a substantial enclosure” (former RPAPL 522). The type of cultivation or improvement sufficient under the statute varied with the character, condition, location and potential uses for the property…and only needed to be consistent with the nature of the property to indicate exclusive ownership…Amended by the Legislature in 2008, RPAPL 522 now states that, after July 7, 2008, a party without a claim of title based upon a written instrument making a claim of ownership of land based on adverse possession must establish either that “there have been acts sufficiently open to put a reasonably diligent owner on notice” or that the land at issue had been “protected by a substantial enclosure”. RPAPL 501, also amended by the Legislature in 2008, now defines the common law element of “claim of right” as meaning “a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case might be.” However, the Appellate Division, Second Department, has ruled that the Real Property Actions and Proceedings Law as amended cannot be applied retroactively to deprive a claimant of a property right that vested prior to the commencement date of the new legislation…
Plaintiff’s submissions are insufficient to establish, as a matter of law, that the instant action is governed by the former RPAPL 522. The complaint, at best, alleges that the main floor of the subject premises has been occupied since 1973 by successive incorporated soccer clubs, whose members are Greek Americans, and that the plaintiff has occupied this space since February 1998. Plaintiff dot not allege that the Greek American Club Inc. or the Greek American-Hellenic Sport Club of New York, Inc., ceased its corporate existence, or that they were merged with or acquired by another corporation. Moreover, plaintiff does not allege, and there is no evidence that either the Greek American Club Inc. or the Greek American-Hellenic Sport Club of New York, Inc. ever claimed to have adversely possessed the subject premises.
Plaintiff cannot establish that it has meet the ten-year statutory period for adverse possession, a Mr. Mellis admits in his affidavit that the April 14, 2011 resolution and September 2013 lease were the impetus for commencing this action.
The court further finds that the evidence presented establishes that 25-33 Astoria Blvd. Corp. acquired title to the premises pursuant to a deed on September 5, 1973, and that successive Greek-American soccer clubs, including plaintiff, were permitted to occupy of the first floor of the subject property, rent free. In view of the fact that plaintiff’s occupancy has always been permissive and consented to by the defendant corporation, plaintiff’s claim for adverse possession cannot be maintained. The court further finds that plaintiff’s submissions are insufficient to raise a triable issue of fact as to whether its occupancy of the subject premises was hostile and under a claim of right.
Finally, it is undisputed that the two upper floor apartments have been rented to residential tenants since the defendant corporation acquired the premises. Plaintiff does not claim to have leased these apartments to the tenants, or to have collected and retained the tenants’ rent. Nor does plaintiff claim that it made any payments in connection with the maintenance of the real property. The fact that 25-33 Astoria Blvd. Corp. has utilized some portion of the rental income to maintain the subject premises and provide space, rent free, to the plaintiff soccer club, is clearly insufficient to establish that plaintiff’s occupancy of the subject premises is exclusive. Plaintiff’s submissions, thus, are insufficient to raise a triable issue of fact as to whether its occupancy of the subject premises is exclusive.
Combs v. Ocwen Loan Servicing, LLC, 2014 NY Slip Op 33362(U) (Sup. Ct., K. Co., December 10, 2014, Knipel, J.) was based upon the following facts:
Plaintiffs are the owners of the property located at 1506 Pacific Street in Brooklyn. On July 25, 2005, plaintiffs executed a mortgage on the property to secure a note from Fremont Funding Corp. (Fremont) in the amount of $463,000.00. The mortgage was recorded on August 30, 2005 in the name of MERS as nominee for Fremont. According to an assignment instrument dated October 2, 2009 and recorded November 18, 2009, the mortgage was purportedly assigned from MERS to the Trust.
The Court summarized the relief sought:
Plaintiffs commenced the instant action pursuant to article 15 of the Real Property Actions and Proceedings Law (RPAPL) to quiet title to the subject property, to invalidate the mortgage and assignment and for an award of actual and punitive damages against Ocwen, the servicer of the mortgage, for allegedly improper application of escrow payments. In their verified complaint, plaintiffs set forth causes of action alleging that: 1) the mortgage and note were “intentionally separated” when the mortgage was recorded in the name of MERS, thereby rendering the note unsecured; 2) the MERS mortgage and October 2, 2009 assignment are unenforceable; 3) the purported October 2, 2009 assignment of the mortgage is invalid as it was made during Fremont’s bankruptcy; 4) the purported assignment of the mortgage to the Trust is void as it was made after the “closing date” set forth in the Pooling and Servicing Agreement (PSA) creating the Trust[;] (i) and 5) Ocwen improperly applied escrow payments to pay water charges and arbitrarily increased the monthly payment as a result.
The applicable law:
An action to quiet title may be brought “[w]here a person claims an estate or interest in real property…to compel the determination of any claim adverse to that of the plaintiff which the defendant makes…” (RPAPL § 1501 ). A claim for quiet title requires a plaintiff to allege “the existence of a removable ‘cloud’ on the property, which is an apparent title, such as in a deed or other instrument, that is actually invalid or inoperative”[.]
And adjudicated the causes of action claim-by-claim:
The court finds no merit in plaintiffs’ first cause of action for a judgment declaring the note unsecured on the ground that the mortgage, recorded in the name of MERS, was “intentionally separated” from the note. [A] mortgage is but an incident to the debt which it is intended to secure; the security cannot be separated from the debt, and exist independently of it…Moreover, the mortgage is not invalid merely because it was recorded in the name of MERS as nominee for Fremont…
Aside from the recording of the mortgage in the name of MERS, plaintiffs have not made any further allegations which call into question the validity of the underlying mortgage itself. Plaintiffs do not allege that the mortgage and/or note were forged or procured as the result of fraud. Plaintiffs state in their complaint that they “do not contend that they are not obligated under the note signed at closing.” Thus, plaintiffs have not stated a cause of action for a judgment declaring that the underlying mortgage is invalid.
The gravamen of the second, third and fourth causes of action is that the purported assignment of the mortgage from MERS to the Trust is invalid…To the extent that plaintiffs are seeking in their fourth cause of action to invalidate the alleged assignment of the mortgage based on a violation of the [Pooling and Servicing Agreement (PSA)] forming the Trust, plaintiffs’ have no standing to bring this claim…
However, the court finds plaintiffs’ second and third causes of action, to the extent they seek to quiet title and invalidate the October 2, 1999 assignment of mortgage, state cognizable causes of action…The October 2, 1999 recorded assignment from MERS to the Trust purports to transfer only the mortgage. It is well established that an assignment of the mortgage without the underlying note is a nullity…Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident. “The note secured by the mortgage is a negotiable instrument…which requires indorsement on the instrument itself ‘or on a paper so firmly affixed thereto as to become a part thereof…in order to effectuate a valid ‘assignment’ of the entire instrument…UCC § 3-202(1) provides, in pertinent part, that “[i]f the instrument is payable to order it is negotiated by delivery with any necessary indorsement.” UCC § 3-204 (2) further provides that “[a]n indorsement in blank specifies no particular indorsee and may consist of a mere signature. A note payable to order and indorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially indorsed”…
The Trust argues that the recorded October 2, 1999 assignment is inconsequential as the note was properly delivered to the Trust pursuant to the PSA. However, while the Trust has submitted a copy of the note in its reply papers, this document alone does not conclusively dispose of plaintiffs’ claims. Along with a copy of the note, the Trust attaches a separate page which contains an endorsement from Fremont in blank. The Trust alleges that the separate page is attached because the endorsement is on the back of the last page of the note. However, this is not substantiated by an affidavit of someone who physically examined the original note. Further, assuming there is an endorsement in blank on the back of the note, in order to establish ownership of the note (and, consequently, the mortgage), the Trust must provide an affidavit of someone with personal knowledge who provides factual details as to the note’s physical delivery…The attorney for the Trust does not provide such factual details in his affirmations nor does he attest to having personal knowledge.
With respect to the fifth cause of action alleging that Ocwen improperly applied escrow payments for water charges, Ocwen submits a copy of the mortgage and cites the following provisions:
3. Monthly Payments for Taxes and Insurance
(a) Borrower’s Obligations.
I will pay to Lender all amounts necessary to pay for taxes assessments, water charges, sewer rents and other similar charges…Each Periodic Payment will include an amount to be applied toward payment of the following items which are called “Escrow Items.”
(1) The taxes, assessments, water charges, sewer rents and other similar charges, on the Property which under Applicable Law may be superior to this Security Instrument as a lien on the Property…
* * *
After signing the Note, or at any time during this term, Lender may include these amounts as Escrow Items. The monthly payment I will make for Escrow Items will be based on Lender’s estimate of the annual amount required.
I will pay to lender all of these amounts to Lender unless Lender tells me, in writing, that I do not have to do so…
…Lender will estimate from time to time the amount of Escrow Funds I will have to pay by using assessments and bills and reasonable estimates of the amount I will have to pay for Escrow Items in the future…
The foregoing provisions clearly entitle Ocwen to include charges for escrow items such as water charges in plaintiffs’ monthly mortgage payment and adjust the amount of monthly escrow payments based on the amount charged in water bills. Even affording the pleadings a liberal construction and accepting all facts alleged as true…plaintiffs have not clearly articulated a cause of action for damages resulting from Ocwen’s calculation and application of escrow payments. In his affirmation, plaintiffs’ attorney states that Ocwen used escrow funds to pay a water bill that was later found to be erroneous and that Ocwen has not endeavored to recover the erroneous payment from the Department of Environmental Protection (DEP). However, plaintiffs do not cite to any provisions in the mortgage documents which obligate Ocwen itself to recover any erroneously charged funds from the DEP and reapply them to plaintiffs’ account. Moreover, the mortgage terms provide that the amount of monthly escrow payments will be estimated “from time to time” using assessments and bills. It is not clear from the complaint or counsel’s affirmation whether Ocwen is presently overestimating the escrow amounts unreasonably in light of recent accurate water bills.
MKG Georgica LLC v. Popcorn, 2015 NY Slip Op 30255(U) (Sup. Ct. Suff. Co., February 18, 2015) was an action to determine whether plaintiff had fee simple ownership of the disputed property.
The Court summarized the facts:
In December 2013, Marjorie Chester and Michael Insel, as successor trustees of the Marjorie Chester Revocable Trust, transferred ownership of a two-acre parcel of undeveloped real property on Georgica Pond known as 11 Association Road, Wainscott, New York, to plaintiff MKG Georgica, LLC. Adjoining such property on its northwestern boundary is a parcel of real property known as 9 Association Road, which also overlooks Georgica Pond. Improved with a single-family residence and detached garage, the property known as 9 Association Road was acquired by defendant Faith Popcorn in October 2012 from Alan Tackman acting in his capacity as administrator of the estate of Franc Vitale. The improved real property known as 7 Association Road, which lies adjacent to the western boundary of 9 Association Road, also is owned by defendant, who allegedly obtained an ownership interest in such property nearly 30 years ago.
The prior proceedings:
[I]n February 2014, plaintiff commenced this action under Real Property Actions and Proceedings Law Article 15 to quiet title to an irregular strip of land located on the northwestern border of its property that had been cleared of brush and landscaped. The disputed strip of land, also referred to as the “cleared area,” contains part of the driveway for 9 Association Road, a slate pathway, a lawn area with bushes, a wood pile, a section of fencing, a propane gas tank, and a drainage pipe emptying into Georgica Pond. In addition to the cause of action to quiet title, the complaint asserts claims for trespass, ejectment, and injunctive relief. Defendant’s answer raises various affirmative defenses, including adverse possession and statute of limitations, and interposes counterclaims for adverse possession and a prescriptive easement over the cleared area.
Plaintiff [argues] that documentary evidence and affidavits submitted in support of the motion establish that it holds title to, and is entitled to immediate possession of, the disputed property. In addition to declaratory relief, plaintiff seeks an order ejecting defendant from the disputed property, directing defendant to remove the encroachments from the disputed property, and enjoining defendant from using the disputed property. As to the counterclaims asserted against it, plaintiff argues defendant cannot demonstrate continuous possession of the disputed property for the 10-year period required for both adverse possession and a prescriptive easement. More particularly, plaintiff asserts that, as defendant’s predecessor-in-interest, Vitale, passed away in 2010, defendant is unable to establish that Vitale intended to turn over possession of the disputed property along with the property known as 9 Association Road; hence, she is unable to tack any possible period of adverse possession to her two years of ownership. Plaintiff’s submissions in support of the motion include certified copies of the deeds transferring title of 9 Association Road and 11 Association Road to the parties; a survey of plaintiff’s property prepared in 2014 that delineates the cleared area; [and] photographs of the cleared area[.]
Defendant [argues] that the “improvements” at issue “are functional parts of [her] use and occupation of 9 Association Road,” and that ‘the disputed area and attendant improvements were in fact turned over to her at the time she purchased the 9 Association Road property from Vitale.” She does not, however, contest plaintiff’s evidence that the disputed property is included in the metes and bounds descriptions on the deeds issued by Chester and Insel for the property at 11 Association Road, and that the disputed property is not included in the deed description for the property at 9 Association Road. Defendant further asserts that plaintiff did not meet its burden on the motion of showing as a matter of law that she is not entitled to tack her adverse possession of the disputed property onto an adverse possession period belonging to Vitale. In opposition, defendant submits, among other things, a copy of the administrator’s deed transferring ownership of 9 Association Road to her [and] a survey of such property prepared in 2012[.]
[D]efendant alleges the disputed area is “the natural extension of the 9 Association Road property,” and that she has “first-hand knowledge of both the actions of Vitale in exclusively and continuously using, occupying, improving, cultivating and maintaining the disputed area since at least 1982…and first-hand knowledge that Vitale intended to and did in fact turn over possession of the disputed area and attendant improvements at the time of her purchase of 9 Association Road in 2012.” She alleges that based on her “continuous ownership of the adjacent 7 Association Road property for nearly 30 years” and her “knowledge of both Vitale and the area in question,” she is “qualified to attest to Vitale’s outward acts of exclusive ownership of the disputed area,” and is “intimately familiar with the 9 Association Road property, including the long-standing existence of the drainage pipe, landscaping, driveway, lawn, propane tank, wood pile, and brick and slate decorative structures” on the cleared area.
The applicable law:
To establish a claim to property based on adverse possession, a party must prove the common law requirements that possession of the subject property was hostile, under a claim of right, actual, open and notorious, exclusive, and continuous for a 10-year period…For title to vest under the doctrine of adverse possession “there must be possession in fact of a type that would give the owner a cause of action in ejectment against the occupier throughout the prescriptive period”…As the acquisition of title to land by adverse possession is not favored under the law, the elements of such a claim must be proven by clear and convincing evidence[.]
Prior to July 2008, a party seeking to establish title by adverse possession on a claim not based upon a written instrument had to show that the land was “usually cultivated or improved” or “protected by a substantial enclosure” (RPAPL 522). The type of cultivation or improvement sufficient under the statute varied with the character, condition, location and potential uses for the property…and only needed to be consistent with the nature of the property to indicate exclusive ownership…Amended by the Legislature in 2008, RPAPL 522 now states that, after July 7, 2008, a party without a claim of title based upon a written instrument making a claim of title to land based on adverse possession must establish either that the land at issue had been “protected by a substantial enclosure” or that “there have been acts sufficiently open to put a reasonably diligent owner on notice.” RPAPL 501, also amended by the Legislature in 2008, defines the common law element of “claim of right” as meaning “a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case might be.” Under RPAPL 543, the presence of “de minimis non-structural encroachments,” like fences, shrubs and sheds, is now deemed permissive, as are certain acts of routine maintenance and cultivation, like mowing the lawn. However, the Real Property Actions and Proceedings Law as amended cannot be applied retroactively to deprive a claimant of a property right that vested prior to the commencement date of the new legislation[.]
Moreover, “[s]uccessive adverse possessions of property omitted from a deed description, especially contiguous property, may be tacked if it appears that the adverse possessor intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed”…Stated differently, “[a]n adverse possession may be effectual for the statutory period by successive persons provided that such possession be continued by an unbroken chain of privity between the adverse possessors”…Thus, where a party claiming adverse possession has not possessed the property for the statutory period, such party may “’tack his [or her] adverse possession to that of his [or her] predecessor to satisfy the applicable statutory period’”…Conversely, absent evidence the predecessor in title intended to transfer possession of land not included in the deed description, there is no chain of privity between adverse possessors, and the party asserting title based on adverse possession is precluded from tacking on to the predecessor’s occupation time…Furthermore, a party will not be permitted to tack a predecessor’s alleged adverse use to his or her claim of adverse possession if there is no evidence the predecessor asserted…an adverse possession claim against the disputed property[.]
Similar to adverse possession, an easement by prescription is established by clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of property for a 10-year period…A party seeking a right of use by prescription, however, need not establish that such use was exclusive…and may tack on his or her predecessors’ prior use to establish the requisite prescriptive period[.]
“Trespass is an intentional entry onto the land of another without justification or permission”…”The essence of trespass is the invasion of a person’s interest in the exclusive possession of land”…An unlawful encroachment on another’s real property is considered a continuous trespass and gives rise to successive causes of action[.]
Applied the facts to the law:
Here, plaintiffs submissions, particularly the deeds to the parties’ respective properties, the survey of 11 Association Road, and the affidavit of the land surveyor, Saskas, establish a prima facie case that it is entitled to a declaration that it holds fee simple title to the disputed property, and that it is entitled both to immediate possession of such property and to injunctive relief…Plaintiffs submissions further make out a prima facie case of trespass and entitlement to injunctive relief preventing defendant’s continuing trespass…Plaintiff also demonstrated that defendant could not establish possession or use of the disputed property for ten years as required to establish her counterclaims for adverse possession and for a prescriptive easement[.]
The burden, therefore, shifted to defendant to raise a triable issue of fact…Here, the vague, conclusory statements in defendant’s affidavit are insufficient to raise factual issues as to whether Vitale adversely possessed the disputed property for the requisite period. Moreover, there is no evidence that Vitale, who passed away two years before defendant took ownership of 9 Association Road, ever asserted an adverse possession claim to the disputed property and intended to pass such a claim to defendant…Likewise, there is no evidence Vitale claimed a right to use the disputed property for his driveway or for any of the other encroachments on plaintiffs property, and that he intended to transfer that right to a successive owner of 9 Association Road[.]
And concluded that:
[S]ummary judgment is granted in favor of plaintiff on its cause of action to quiet title to the disputed property, on its causes of action for trespass and injunctive relief, and on the counterclaims for adverse possession and a prescriptive easement. The Court declares that plaintiff is the fee simple owner of the disputed property, and that it is entitled to possession of such property and to removal of the encroachments thereon.
Lesson learned: RPAPL Article 15 is a readily-available, efficient and generic statutory vehicle for presenting and resolving a virtual legal “cornucopia” of issues that arise relating to claims, disputes and interests in real property.