And on the Third Day…

Originally published on the SGR Blog

Dry land has been around—well, according to the Bible,  since the third  day of  the Creation.  So it is not surprising that disputes relating to ownership of real property often have their “Genesis”  in facts, circumstances and documents with ancient pedigree.  A recent case, in which the Town of Southampton and the Freeholder Trustees sued for a judgment declaring them to be the sole owners of  real estate on the shore of Moriches Bay, Suffolk County, reached and searched back to a decree promulgated in 1686 and a statute enacted  in 1818.

The case arose out of  a dispute over whether the movement of sand caused by storms affected the ownership of certain property. Suit was filed against the Incorporated Village of West Hampton Dunes and owners of property located on the north side of Dune Road, just south of Moriches Bay.

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ISSUES IN ESTABLISHING AN EASEMENT OVER REAL PROPERTY

Law school real property textbooks abound with cases addressing adverse possession, right-of-way disputes and various types of easements (prescriptive, of necessity, and otherwise).  Contemporary decisions still address those usual generic, threshold issues, but also the more granule issues of the location, size and permitted uses of easements, rights of way.  Several recent examples follow.

DiDonato v. Dyckman, 2018 NY Slip Op 08113, App. Div. 2nd Dept. (November 28, 2018) Continue reading

The Best Defense Against a Charge of Defamation

Copyright by, and republished with permission of, Habitat Magazine

In these contentious times, politics at all levels – even at the level of co-op and condo board elections – tend to get ugly. Charges and counter-charges circulate with lightning speed. One recent condo board election led to a lawsuit over the truth of charges emailed by one of the candidates. The case turned on the definition of the D-word: defamation.

Sandra Peterson, a unit-owner at Edgemont at Tarrytown Condominium and a former president of the board of managers, was running for election against fellow unit-owner Mary Ellen Maun. During the election process, Maun sent emails to other unit-owners which, Peterson claimed, were false and defamatory and sent with the specific intent to damage Peterson’s good name and reputation in the community.

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Co-op Boards Are Not Quality-Control Watchdogs

Copyright  by,  and republished with permission of, Habitat Magazine

Wade and Vanessa Johnson thought they were getting a “triple mint” luxury unit when they bought a gut-renovated apartment from the sponsor of a cooperative conversion at 1150 Fifth Avenue. But after the closing, the Johnsons learned that there were numerous conditions in the apartment that were not up to code – or actually dangerous – most of which had been concealed.

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PET PEEVES & OTHER FOUR-LEGGED DISPUTES

New Yorkers own hundreds of thousands of cats, dogs, farm animals and other pets.  Thus, it is not surprising that accidents and injuries caused by animals are a fertile source of litigation.  Several recent examples follow.

Thompson v. Brown, 2018 NY Slip Op 08736, App. Div. 3rd Dept. (December 20, 2018)

In an action for negligence arising out of the escape of a bull owned by defendants, Supreme Court granted plaintiff’s motion to the extent of finding that plaintiff sustained a serious injury within the meaning of the insurance law.

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Nuisance on Central Park West

Originally published on the SGR Blog.

A Central Park West condominium sued the owner of a first floor unit and her son for breach of contract and nuisance. The Board wanted to enjoin them from smoking marijuana and making excessive noise in their unit. At the outset, the Supreme Court issued a preliminary injunction that prohibited defendants from smoking marijuana and permitting marijuana smoke and excessively loud noises from infiltrating into the common areas and other units of the condominium. And several months later the Court addressed the application for a permanent injunction.

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Court of Appeals #17

We recently published Court of Appeals #17.

Measure Twice. Buy Once. Never Sue.

Copyright by, and republished with permission of, Habitat Magazine.

It happens all the time in New York City. Someone buys an apartment relying, without further investigation, on statements made by a sales agent – and then learns, too late, that the statements were incorrect. According to a news report, it happened last year to a purchaser, who placed a $1 million down payment on a $10.5 million Chelsea condo after being told by the selling agent that the ceilings in the under-construction apartment would be “just shy of 10 feet tall” – high enough to accommodate her extensive art collection. However, when she later reviewed the offering plan and measured the finished apartment, she learned that the ceilings were not the anticipated height. She has had to sue to recover her down payment.

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IS THAT POSSESSION LEGALLY ADVERSE?

To establish a claim of title to real property by adverse possession, a party must demonstrate, by clear and convincing evidence, that the possession was (1) hostile and under claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period of 10 years.

Needless to say, each and every element of the formula has developed a unique and discrete body of law – pursuant to which a final disposition is, as often than not, fact-specific.  Several recent examples follow.

Mazzei v. Metropolitan Trans. Auth., 2018 NY Slip Op 06007, App. Div. 2nd Dept. (September 12, 2018) Continue reading

The Great “Washing Machine” Dispute

This was originally published on the SGR blog.

Nancy McCaskill  bought the shares for a cooperative apartment in Mount Vernon, New York in April 1998. At the time she entered into possession a washing machine was installed.

In 2014, the Board of Directors enacted the following House Rule 21:

The Board of Directors having determined that the plumbing systems of the Buildings are not sufficiently robust to allow use of washing machines without damage to the plumbing and to other apartments, washing machines, dryers or combination washer/dryer machines are not permitted to be used or kept in any apartment.

The cooperative did not contact McCaskill regarding her washing machine after enactment of House Rule 21.

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