This week we wanted to highlight an interesting decision out of the Second Department which held that that a judgment creditor could not benefit from the from the protection of N.Y. Prop. Law § 290 et. seq.(New York’s Recording Statute). A summary of the relevant facts as well as a link to the case are set forth below.

This week we wanted to remind you about current legislation that will affect how the Peconic Bay Community Preservation Fund Tax (CPF) is calculated in several Peconic Bay towns in Eastern Long Island. Effective January 1, 2023, pursuant to revisions to New York Tax Law 1449-BB and the local town codes in East Hampton, Shelter Island, South Hampton and Southold (NOTE – The town of Riverhead did not change its CPF allowances), all conveyances made in those towns will be subject to the following adjusted allowances when calculating the CPF:

As we are fast approaching the end of 2022, we wanted to remind you of a significant piece of legislation that became effective earlier this year and amended how judgment interest is calculated on Money Judgments in certain circumstances. Back on December 31, 2021, Governor Hochul signed into law Chapter 831 of the Laws of 2021 amending Sections of the CPLR to reduce the interest rate on money judgments against natural persons involving “consumer debt” (as defined in CPLR Section 5004(b)) from 9% to 2% per annum.

With the proliferation of cases involving fraudulent Deed transfers in the news these days, we wanted to bring your attention to a 2nd Department case where a defrauded Plaintiff was successful in having such a Deed set aside by Court Order. The relevant facts and a link to the case are set forth below but, from a strategic standpoint, it is important to note that the Plaintiff’s Complaint included a Cause of Action to Quiet Title which is governed by a ten (10) year Statute of Limitations as opposed to just a fraud claim which would have been subject to a six (6) year Statute of Limitations.

This week we wanted to bring your attention to an interesting case which determined that additional professional and legal fees were properly chargeable to a licensor where a prior Access License Agreement, issued in accordance with Real Property Actions and Proceedings Law (“RPAPL”) Section 881 (“Access to adjoining property to make improvements or repairs”), had to be further extended and modified. The decision, in part, turned on the specific language set forth in the agreement as to the “reasonableness” of circumstances which necessitated the additional Professional Fees. The relevant facts and a link to the case are set forth below.

Today we wanted to bring your attention to very recent legislation signed by Governor Kathy Hochul (S.6522A/A.7363A) designed to protect patients facing steep medical bills that can lead to wage garnishment or liens against their property.

As we approach the end of the year, we wanted to remind you of the upcoming deadline for certain property owners to complete and file their gas piping inspections in accordance with NYC Local Law 152 of 2016 (“LL 152”).You can review LL 152 using the following link:ll152of2016.pdf (nyc.gov). No later than December 31, 2022, all buildings (except for one- and two-family homes, and other buildings classified in Occupancy Group R-3), in Community Districts 4,6,8,9, and 16 in all five (5) boroughs must complete a gas piping system inspection of their property to be conducted by a Licensed Master Plumber (LMP), or a qualified individual working for an LMP.

Today we wanted to direct your attention to a very interesting case out of the Appellate Division, 2nd Department which involved the analysis of the effects of a fraudulent executed Power of Attorney and Deed on the enforceability of a mortgage. The relevant facts of the case and a link to the Appellate Court decision are described below.

This week we wanted to bring your attention to an Appellate Division, 2^nd Department, case which ultimately rejected a petitioner’s claim for a variance to locate his inground swimming pool wholly on his property but in violation of the Town of Islip’s Zoning Code set back requirements. The lower Court had initially granted the Petitioner’s application for a variance, but the Appellate Court overturned the lower court decision based on its review of the Town’s Zoning Board of Appeals (“ZBA”) analysis of the facts included in the variance application. A summary of those relevant facts, along with a link to the case, are set forth below.

This week we wanted to bring your attention to a First Department case wherein the Appellate Division held that an Ex-Husband’s Judgment Creditor’s lien claim was subordinate to the Ex-Wife’s unrecorded equitable interest in a Condominium Unit that the couple had acquired during their marriage. The relevant facts of the case, as well as a link to the decision, are summarized below.

This week we wanted to direct your attention to a very interesting case out of the Fourth Department which involved an Executor who, without Surrogate’s Court authority, sold a property that was left to a Specific Devisee under the probated Last Will and Testament of the decedent. As discussed in detail in the Court Order (see Link to case below), while it is undisputed under New York law that the interest of a specific devisee vests immediately on the death of a decedent, under the specific facts of this case, the Appellate Division nonetheless refused to void the Deed and quieted Title of the property in the name of the Bona Fide Purchasers. The facts of the case are summarized as follows:

Today we wanted to highlight a recent Third Department case where the Appellate Court overturned a Supreme Court Order granting Summary Judgment to the Plaintiff who claimed adverse possession of a portion of an easement which was enclosed by a fence and used for outdoor seating and dining. The facts of the case are summarized below, and the decision turned on a question of fact as to whether the use of the easement for enclosed outdoor seating and dining was permissive (as opposed to hostile) and under a claim of right.

We wanted to pass along an interesting case (Sterling Recoveries, Inc. v. Alejandro Erazo; 2022 NY Slip Op 50662(U); 75 Misc. 3d 1225(A)) which highlights the importance of timely renewing expiring Judgments on real property to avoid the possibility of a “lien gap.” In analyzing the Plaintiff’s motion for an Order seeking to renew an expired Judgment, the Court laid out the below summary of the legislative history of the relevant CPLR Sections identifying the distinction in the duration between a New York money judgment (20 years) vs. a Judgment resulting in a real property lien (10 years), as well as the methods to renew such expiring real property liens:

This week we wanted to direct your attention to a recent US District Court decision wherein the Court dismissed the Plaintiff/Owner’s claim for damages against an Underwriter seeking coverage under a Fee Owner’s Policy related to the post-closing discovery of an unrecorded Landmark Designation. This case highlights the importance of drafting your contracts to include Seller representations related to the existence, or lack thereof, of Landmark Designations, as the Owner’s Policy will not provide coverage for such claims.

We have been continuously monitoring the situation involving the cyber security intrusion that shut down access to the Suffolk County Clerk’s office on September 8, 2022. Unfortunately, while the Clerk’s office has acknowledged the serious impact that this closure has caused to the Real Estate Industry, there is no definitive timeline to restore access to complete searches or record documents.

As you may know, the Suffolk County Clerk’s Office experienced a cyber-security intrusion on September 8, 2022, that has resulted in multiple computer systems being shut down. As a result, examiners in Suffolk County are currently unable to conduct searches of the Suffolk County land records, Suffolk County Clerk’s docket and other databases. Additionally, at the present time, it is not possible to record documents with the Suffolk County Clerk.

This week we wanted to bring your attention to a very interesting 2022 Second Department Court decision which ultimately enforced a forged deed based on the controlling provisions of New York Partnership Law § 51. A summary of the case facts are set forth below:

We wanted to take this opportunity to revisit the requirements for an individual to unilaterally sever an existing Joint Tenancy interest in Real Property. In the recent case Harmon v. Misholy, 2022 NY Slip Op 22102, decided April 8, 2022, posted at https://www.nycourts.gov/reporter/3dseries/2022/2022_22102.htm, the Respondent was a tenant under a certain lease that had been executed, via a POA, by one of the Joint Tenant owners on a parcel of real property in Suffolk County.

This week we wanted to draw your attention to a recent trend that has come to our attention whereby a Real Estate Broker and Homeowner enter into a Homeowner Benefit Agreement (HBA) related to the future listing and sale of a particular Property. The basic concept of the HBA is that the Broker would provide an up-front cash payment to the homeowner in return for a future exclusive right to act as the listing agent when the owner decides to sell their property.

The below case discusses the priority of a " Lien for common charges" filed against a Non-Residential Condominium Unit where the applicable Condominium Declaration and By-Laws specifically granted priority of the Common Charge Lien over and above that of any Commercial Mortgage on the Unit. The team thought this would be a good case for you to review as it highlights the importance of closely reviewing your Condominium’s governing documents when evaluating Common Charge Lien priority for a Non-Residential Condominium Unit.