Category Archives: Real Estate

All is Not Peaceful on Willow Lane on Shelter Island: Neighbors Litigate Scope of 1959 Right of Way

This was originally published on the SGR Blog.

Shelter Island (2010 pop. 2,392), a Town on the East End of Long Island, separated from the rest of Suffolk County by a body of water– and accessible only by ferry from Greenport (to the north) and North Haven (to the south)– is known for its bed and breakfast and boutique hotel charm and culture. But, as a recent case illustrates, the full-time residents can be as litigious as the mainlanders who visit the island.

Sharon and Brenda Grosbard and Abbey on Willow Lane, LLC own adjoining properties that were once part of a larger common parcel in Shelter Island. Abbey’s property borders the Grosbard’s property on the north and also borders a portion of it on the west. The Grosbard’s property is burdened by an express easement that benefits Abbey’s property. The easement was granted as part of a 1959 property subdivision dividing the contiguous properties. The undivided property had benefitted from an easement to the south (the so-called Willow Lane connector easement), which extended over two other properties to connect to another easement over a private road known as Willow Lane, which ultimately connected to a public roadway.

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Town Voided Certificate of Occupancy Before Closing: Was Non-Disclosure Excused by “Caveat Emptor”?

This was originally posted on the SGR Blog.

Caveat emptor”—or “buyer beware”—historically was rule number one of real property purchase and sales. But did the rule still control as to the duty to discover or disclose that a certificate of occupancy had been voided?

David Chapman sought damages for, fraud arising from his purchase of a home from Adam and Jennifer Jacobs. Chapman alleged that the Jacobs represented that there was a certificate of occupancy for a pole barn situated on the property when, in fact, the Town of Farmington voided the certificate of occupancy when it discovered that the barn encroached on the adjoining property.

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Coop Terminated Proprietary Lease for Objectionable Conduct

This was originally posted on the SGR Blog.

May Court “Second Guess” Board’s Decision? or Did Business Judgment Rule Apply ?

Proprietary leases for residential coop units often permit the Board to terminate a lease for “objectionable conduct”—an arguably subjective cause. In a recent case, the Judge in the Landlord & Tenant Part concluded that the “business judgment rule” did not apply to the facts before the Court. That determination was the subject of an appeal.

111-15 75th Ave. Owners Corp, a residential cooperative corporation, commenced a holdover proceeding against Min Fan and Thomas Pellegrino after the Board terminated their proprietary lease on the ground the tenants had engaged in objectionable conduct. Civil Court denied Owners’ motion for summary judgment, rejecting the argument that the business judgment rule applied to the coop board’s determination to terminate the lease, and finding that the determination was not entitled to deference because Owners had not acted in good faith. The Board appealed.

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Subdivision Declaration Prohibited Daily/ Weekly/ Monthly Sublets: Court Decides if One Year Rental was Covered or Permitted

This was originally posted on the SGR blog.

Reported decisions abound relating to the violation/enforcement of the prohibition of short-term rentals of coop and condo units. But are those restrictions enforceable where contained in the declaration of a residential subdivision in which each singular property was separately and privately owned?

LG Lakeside Limited Liability Company, owned by Glenn and Laura Kupsch, completed the construction of a home at 6 Mayfair Drive in Bolton Landing, Warren County in early 2018/late 2019. The home is located in the Mayfair Resort subdivision on the shores of Lake George, with all homes in the subdivision subject to a Declaration of Covenants, Restrictions, Easements, and Assessments dated May 15, 2012, and amended on November 13, 2013.

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Much Legal Ado About “Running Bamboo” on Shelter Island: Were Kings Liable to Sultans for Nuisance/Trespass/Negligence?

This was originally posted on the SGR Blog.

“Running bamboo” is an invasive species that is now barred by law in New York. But, as a recent case illustrates, the Court may still be called upon to determine legal liability for the aggressive plants’ encroachment on a neighboring property– where the bamboo was planted before the statutory ban came into effect.

Melinda and Sady Sultan sought damages relating to the spread of bamboo from the neighboring Shelter Island property of Loren and Lynn King. The Sultans sued to recover the cost to excavate and remove bamboo that had spread onto their property from next door and for the installation of a barrier along the property line separating the two properties and along a portion of the rear property line to prevent the future spread of bamboo onto their property. They also sought damages for loss of use of their property. The Sultans’ claims were based on a private nuisance claim, negligence, and trespass.

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Condo Unit Owner Inconvenienced by Defective Exhaust Fan: Was the Board Entitled to Foreclose the Common Charge Lien?

This was originally posted on the SGR Blog.

Condo unit owners often feel aggrieved by every day “housekeeping” type problems—and withhold payment of their common charges until the matter is resolved. But the Board may file a common charge lien as a result of the non-payment. Was the “inconvenience” of a broken exhaust fan sufficient to stop foreclosure of the lien?

Bristol Plaza is a 50-story “white glove” condominium at 200/210 East 65th Street. Angus McCallum is the fee owner of apartment 21K in the 308-unit building.

The Board sued McCallum to foreclose on a $10,202.72 lien for unpaid make common charges, assessments and other charges assessed against the apartment. The Board moved for summary judgment alleging that no material issues of fact existed as to whether the Board was entitled to foreclose on the lien.

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Legal Loggerheads at Horseheads in Chemung County: Constructive Trust and Unjust Enrichment Claimed

This was originally posted on the SGR Blog.

Failed romantic relationships, in the course of which the parties purchased and sold real property and other assets, are a constant source of post-breakup litigation asserting claims for “constructive trust” and/or “unjust enrichment”. But, as a recent case illustrates, even where based on the same “facts”, the two distinguishable causes of action may lead to different outcomes.

Jim Clark and Michele Locey were involved in a long-term intimate relationship. Clark was in the business of building residential homes and Locey was a real estate broker. Together, they engaged in a business venture in which they would buy parcels of land, build residential homes, and sell for a profit. In 2005, they bought a lot in Florida as tenants in common for their personal use and as an investment and built a house on the property. Clark ultimately contributed approximately $103,000 to that property and Locey invested approximately $400,000. In 2009, Clark deeded his interest in the Florida property to Locey’s living trust and Clark was discharged from the mortgage. In early 2012, they decided to sell the Florida property. Clark then again deeded his interest in the Florida property to Locey’s living trust upon the request of the title company.

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Raging Roadway Rumble at Big Moose Lake in Hamilton County

This was originally published on the SGR Blog.

Did Scholets Improperly Block Sardinos Sole Means of Access?

Lake-adjacent upstate properties bring to mind the pastoral, peaceful, and sublime. But, as a recent case illustrates, rural neighbors can be as contentious and litigious about their rights to access their properties as their downstate counterparts can be with respect to mid-town high-rise roof access rights.

The families of Kathleen Sardino and Arthur Scholet own adjacent parcels of property along the south shore of Big Moose Lake in the Town of Long Lake, Hamilton County. The Sardinos owned or occupied their respective properties (the Sardino Property and the Williamson Property) since the 1950s. They access their properties over a roadway referred to as the East Bay Extension, which extends in sequence from Judson Road across the property of Arthur Scholet and Diane Scholet, the property of Cosanne Schneberger and Scott Schneberger, the Williamson Property, and ending at the Sardino Property.

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Assignment of Mortgage Condition Precedent to Closing of Condo Unit Sale: Did Buyer Have Right to Cancel When Lender Failed to Agree to Assignment?

This was originally posted on the SGR Blog.

Contracts for the sale of real property usually contain so-called “conditions precedent” to closing. Contracts sometimes contain, as such a condition, a lender’s consent to the assignment of an existing mortgage on the premises. And, as a recent case illustrates, the failure of that condition raises a broad panoply of legal issues, in general, and contract-specific disputes, in particular.

Prosperous View LLC agreed to purchase a condo unit at 170 Mercer Street in Manhattan from 170 Mercer LLC for $6.7 million and paid the down payment of $350,000 (to be held in escrow). Prosperous contended that the sale was contingent on Prosperous being assigned an existing mortgage on the property. It argued that it complied with its obligation to apply for the mortgagee’s consent to assume the mortgage. And alleged that the mortgagee began demanding onerous provisions in order for the assumption of the mortgage to be finalized, including an additional security payment of $1 million to be placed on deposit for the life of the loan. Prosperous contended that Mercer refused to pay the additional cost of complying with that condition.

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Family Cash Pooled to Build $23M Mixed-Use Condominium in Flushing: Court Determines Interests of Parties in Absence of Definitive Paperwork

This was originally posted on the SGR Blog.

New York real property development disputes often require the Court to navigate hundreds of pages of lengthy and dense contracts, agreements, or understandings that are the source of contention despite having been drafted by experienced attorneys and signed by sophisticated investors. But, as a recent case illustrates, matters become even more contentious where family members informally invest large sums of money with little concomitant paperwork.

Chun You Cheng (“Cheng”) and Chiu Ming Yan Cheng (“Chiu-Ming”) brought a derivative action against family members and other entities (“defendants”) seeking a judgment declaring the ownership interests of the investors (or their successors or assigns) in Garden View LTD (“GVL”). The Court held a 10-day “bench” (non-jury) trial over several months.

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