NYSBA WINTER 2015 | VOL. 43 | NO. 1 N.Y. Real Property Law Journal A publication of the Real Property Law Section of the New York State Bar Association

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Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB2842N Table of Contents

Message from the Section Chair...... 4 (David L. Berkey)

The 2008 Amendments to the New York Adverse Possession Law: Unresolved Ambiguity and Suggestions for Clarity ...... 5 (Vincent Di Lorenzo)

From Slums to Stadiums: A Historical Summary of New York’s Public Use Limitation ...... 13 (Karen M. Richards)

Does a New York Foreclosure Create an Opportunity for a Tenant to Walk Away from Its Lease Obligations? (Answer: No) ...... 20 (Louis J. Hait)

Apartment Building Residents Get Dogged About Acquiring Emotional Support Pets ...... 24 (Virginia Trunkes)

New State Law Requires Sprinkler System Clauses in Leases ...... 32 (Adam Leitman Bailey and Dov Treiman)

BERGMAN ON MORTGAGE FORECLOSURES: When the Borrower Attacks the Action Time After Time ...... 34 (Bruce J. Bergman)

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 3 Message from the Section Chair

The Real Property Law Section gram, making downstate practitioners to determine continues to expand its commitment it the seventh whether the differences require differ- and welcome to recently adm itted school to send ent disclosures or forms; and (5) con- attorneys and to law students. To its law students sider proposing legislation to protect encourage attendance at our 2015 to intern with attorneys acting as escrow agents and Summer Meeting, to be held at the members of our their clients, such as legislation that Basin Harbor Club & Resort on Lake Section. would require banks to send escrow Champlain, Vermont, from July 16-18, account monthly statements to both Our Sec- 2015, we are offering a 75% discount the attorney and person for whose tion remains of meeting registration fees and hotel benefi t the account was established. focused on the accommodations to fi rst time attend- We are fortunate to have Gilbert practical needs of its members. The ees and to attorneys admitted less Hoffman and Benjamin Weinstock as Task Force on Title Agent Licens- than 10 years. Mindy Stern will be co-chairs of the Task Force. our Program Chair for the 2015 Sum- ing continues to work with the NYS mer Meeting and assures us that we Department of Financial Services I hope to see many of you at the have a spectacular venue and won- to assure that its regulations do not RPLS CLE program to be held on derful program planned for all. You curtail an attorney’s right to act as Thursday, January 29, 2015 at the can register now on our website to title agent. New York Hilton Midtown during the NYSBA’s Annual Meeting. Leon assure your place at the meeting. We reconstituted our Attorney Sawyko, our Program Chair, prom- Escrow Agent Task Force to (1) re- We welcome Professor Shelby D. ises an interesting CLE session and view the disclosures that an attorney Green of Pace Law School as our new wonderful luncheon at the 21 Club. acting as escrow agent for a client co-chair of the Law School Intern- Please check our event calendar for should provide to the client and other ship Committee. She is working with other CLE programs sponsored by parties to the transaction; (2) pre- co-chair Ariel Weinstock to create our Section and its committees and pare model escrow agent disclosure more internship opportunities for law for social events scheduled by our forms for use in such transactions; students who wish to participate in District Representatives. the work of our Section’s many com- (3) review the escrow language in the mittees and publications. In addition, form contracts of sale to determine My best wishes to all for a very Professor Green is working with the whether any changes should be made happy and healthy New Year! administration and faculty of Pace to the forms, placed in a rider or set Law School to encourage participa- forth in a separate escrow agreement; David L. Berkey tion in our Student Internship Pro- (4) review the practices of upstate and

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4 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 The 2008 Amendments to the New York Adverse Possession Law: Unresolved Ambiguity and Suggestions for Clarity By Vincent Di Lorenzo

Introduction basis for the belief that the property under claim of right….”12 The decisions In July, 2008 the New York belongs to the adverse possessor or in the Court of Appeals, however, 6 Legislature made substantial revi- property owner, as the case may be.” made it clear that prior to the 2008 sions to the statutory provisions “Adverse possessor” is defi ned as amendments the New York courts 13 governing acquisition of title to real follows: “…when the person or entity recognized both hostile intention property by adverse possession.1 The occupies real property of another and adverse possession held under 14 proposed legislation was criticized person or entity with or without the mistaken belief of ownership as and opposed by the Real Property knowledge of the other’s superior a valid form of adversity. Thus, either Law Section of the New York State ownership rights, in a manner that satisfi ed the requirement in the N.Y. Bar Association due to, among other would give owner a cause of action Real Property Actions and Proceed- 7 reasons, the ambiguities it contained.2 for ejectment.” Yet if the adverse ings Law that possession must be 15 This article examines three signifi cant possessor enters with knowledge of under a “claim of title.” the owner’s superior rights, or with a ambiguities in the 2008 legislation: (a) The legislative history of the 2008 the claim of right requirement; (b) the reasonable basis for the belief that the property belongs to the owner, the amendments provides insight into revised actual possession standard; the changes the Legislature was at- and (c) the prospective or retroactive courts would characterize that entry as one made with hostile intention. tempting to implement and, in turn, nature of the legislative changes. It assistance in addressing the ambigui- explores how the courts have ad- Seemingly, therefore, hostility con- tinued to be recognized as a form of ty in the new legislation. With respect dressed these ambiguities and offers to the adverse intention requirement, suggestions for clarifi cation based on adversity, even though one purpose of the 2008 amendments was to limit the Legislature sought two changes the statute’s legislative history and in existing law—not one. The fi rst earlier but related Court of Appeals adverse possession to claims asserted in good faith. change was to limit claims of adverse decisions. possession to claimants asserting Complicating the issue is the fact title in good faith—i.e., a good faith Claim of Right that the case law in New York has but mistaken belief of ownership, not clearly distinguished between a in contrast to hostile intention. The Sections 2 and 4 of the 2008 “claim of title” and a “claim of right.” second change was to require that the legislation3 amended New York Real In one of the earliest cases explor- claimant have a reasonable basis for Property Actions and Proceedings ing the adverse possession doctrine, that belief.16 Law (NYRPAPL) sections 511 and Humbert v. Trinity Church,8 the court 521 by eliminating the requirement repeatedly described the adversity The Legislative Memorandum that the adverse possessor occupy the requirement as a “claim of title for accompanying the 2008 amendments property under “claim of title.” The twenty years.”9 However, in the early states: phrase “claim of title” referred to any part of the opinion the court’s lan- recognized adverse claim of owner- This legislation is all about guage suggests that claim of title and ship, whether based on (a) hostile good faith. A person who claim of right are equivalent terms.10 intention or (b) a good faith mistaken attempts to possess land belief of ownership. The Legislature The Court of Appeals’ later deci- that they know all too well substituted the requirement that the sion in Ramapo Manufacturing Com- does not belong to them adverse possessor must occupy the pany v. Mapes cites Humbert and seem- should not be encour- property under a “claim of right.”4 ingly adopts the same view that the aged.… Adverse posses- two terms are equivalent.11 Later case sion should be used to This was not the only relevant law did not provide clarity. Indeed, settle good faith disputes change in the statute, however. The later case law may have created more over who owns land. It Legislature drafted a new provi- confusion. This is because cases such should not be a doctrine sion that amended section 501 of the as Belotti v. Bickhardt describe the which can be used of- NYRPAPL and defi nes “adverse pos- adversity requirement as requiring fensively to deprive a sessor” and “claim of right.”5 “Claim that “possession must be hostile and landowner of their real of right” is defi ned as “…a reasonable property.17

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 5 However, the same legislative possessors—namely “[a] person… …land is deemed to have memo made it clear that a second with or without knowledge of the been possessed and occu- change was intended as well. It states: other’s superior ownership rights.…” pied in any of the follow- However, amended sections 511 and ing cases: Last year the Executive ve- 521 would only allow the latter to 1. Where there has been toed a different attempt to acquire title—an adverse possessor acts suffi ciently open resolve this issue. The Ex- without knowledge of another per- to put a reasonably ecutive took issue with the son’s superior ownership rights. introduction of a person’s diligent owner on belief into the elements of Two cases have applied the new notice. adverse possession. This adverse intention requirements. 2. Where it has been bill will focus the inquiry Neither explicitly addressed the ap- protected by sub- not upon the person’s parent inconsistency or uncertainty stantial enclosure, belief, but instead upon contained in amended section 501. except as provided in the evidence introduced However, in Ziegler v. Serrano, the subdivision [543].25 in court which justifi es a Third Department confi rmed that, reasonable basis for that as amended in 2008, the NYRPAPL The phrase “acts suffi ciently open belief. It will be an inquiry now requires a reasonable basis for to put a reasonably diligent owner into the basis and whether the adverse possessor’s belief that on notice” suggests the provision it was reasonable, not into the property is owned by the adverse relates to the open and notorious a person’s mind.18 possessor.19 In the case before it, the requirement of the adverse posses- court found that such a reasonable sion doctrine. However, the courts In light of this two-part legisla- basis existed for occupancy under a had explained that NYRPAPL sec- tive change, the amendments to claim of right because the adverse tions 512 and 522 in fact stipulate the sections 511 and 521 of the NYRPAPL, possessors had received a deed to the actual possession requirement of the demanding a “claim of right,” could parcel and an earlier action challeng- adverse possession doctrine.26 be read as the only relevant provi- ing their title had been dismissed.20 sions employed by the Legislature to The Court of Appeals, applying accomplish the fi rst goal—to elimi- Similarly, in Reyes v. Carroll,21 the former statutory requirement nate hostile intention as an accept- the court applied the 2008 amend- that possession must be in the form able form of adverse possession. The ments to the NYRPAPL. Without of enclosure, cultivation or improve- amended section 501 of the NYR- mention of the apparent ambiguity ment, explained the two related aims PAPL, by contrast, could be read as or uncertainty in section 501(3), the of this requirement: “[t]he purpose of being aimed solely at accomplishing court stated the new statute requires the statute was to make the posses- the second goal—to require a reason- a “reasonable basis for the belief that sion real, and not constructive, so that able basis for adverse possessors’ mis- the property belongs to the adverse it shall be visible, open and notori- taken belief that they are the owner. possessor.”22 In this case, the adverse ous.”27 The enumerated requirements possessors owned adjoining property limited the acceptable forms of actual If the focus of section 501 is solely but had encroached on defendants’ possession recognized in New York to impose a reasonable basis require- land. The court concluded that the while simultaneously implicitly af- ment, then the statutory language in adverse possessors had a deed and fi rming that the particular acts relied section 501(3), defi ning claim of right a survey that “clearly indicated” the upon by the claimant must be visible. as “a reasonable basis for the belief correct property line and therefore that the property belongs to the ad- they did not have a reasonable basis The 2008 amendments supply verse possessor or property owner, as for the belief that the disputed prop- ambiguity rather than clarity with the case may be,” could be interpret- erty belonged to them.23 respect to the actual possession ed as merely enumerating alternative requirement. The amended statu- beliefs that might be demonstrated tory provision speaks only of “acts to have a reasonable basis. However, Actual Possession suffi ciently open to put a reasonably sections 511 and 521 as revised in Prior to the 2008 amendments, diligent owner on notice.” This creates 2008 would only permit the former— sections 512 and 522 of the NYRPAPL ambiguity concerning (a) the nature a reasonable basis for the belief the required that the property was “usu- of the act that is now required, in- property belongs to the adverse pos- ally cultivated or improved” by the cluding whether an act of possession sessor—to lead to acquisition of title adverse possessor or “protected by (occupancy) is still required, and (b) by the adverse possessor. The same substantial inclosure [sic].”24 In 2008 the nature of the notice the diligent view can be taken of the defi nition the phrase “usually cultivated or owner must be provided, e.g., notice of “adverse possessor” in amended improved” was eliminated and the of a claim of title. section 501(1) of the NYRPAPL. It de- Legislature substituted the following scribes alternative potential adverse standard:

6 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 As discussed below, it is likely occupation has also been considered possessor “usually culti- the New York Legislature intended to by the Court of Appeals. In Barnes v. vated or improved” the require “acts of ownership” in order Light the Court of Appeals embraced property. This language to satisfy the amended actual posses- the earlier position of the court in La especially the words “usu- sion requirement. This would align Frombois v. Smith31 that “[t]he ac- ally cultivated” is at best New York law with the law in many tual possession…of the premises, as ambiguous and has caused other states. However, some states owners are accustomed to possess… a number of homeowners that defi ne actual possession as “acts their estates…will…be suffi cient to who lost property, includ- of ownership” do not require that raise a presumption of his entry and ing the defendants in the adverse possessor is in actual, holding as absolute owner, and will Walling v. Przybylo, 7 N.Y. physical possession of the property. establish a claim of title. Possession, 3d 228 (2006), to claim that Prior court decisions in New York accompanied by the usual acts of they did not know that the help us decide what the Legislature ownership, is presumed to be adverse adverse possessor was on likely intended to be the governing until shown to be subservient to the their property and so were standard in New York after its 2008 title of another.”32 In other words, the unable to eject them dur- amendments. Court of Appeals has required actual ing the statutory period. occupation of the premises by the a. Reasonably diligent owner The Court of Appeals has ex- adverse possessor in a manner that must be on notice of adverse plained that “…there must be pos- would evidence a claim of ownership possessor. session in fact of a type that would and provide notice to the owner of give the owner a cause in ejectment such a claim. S. 7915 addresses this against the occupier throughout the problem by limiting prescriptive period.”28 The Court of No case law has yet addressed “usually cultivated or Appeals has also noted that the true the new statutory standard for actual improved” to situations owner is deemed to be constructively possession in the 2008 amendments. where the adverse pos- in possession of land to which the However, other provisions in the stat- sessor’s actions were owner has title. “This possession is ute and its legislative history help us “suffi ciently open to put a deemed to continue until there is an address the ambiguity in the revised reasonably diligent owner actual disseizin and expulsion of the statute. The newly enacted defi ni- on notice.” Under this true owner….”29 This is the funda- tion of “adverse possessor” speaks language, for the fi rst time mental character of the actual posses- of occupancy of the real property there would be a specifi c sion requirement in New York under- of another “in a manner that would statutory direction to the lying the particulars of the statute’s give owner a cause of action in eject- courts rejecting stealth tak- enclosure, cultivation or improve- ment.”33 This defi nition serves to ings of property.34 ment standard. Thus, as to the nature confi rm that the “acts” now required of the act traditionally required under continue to be acts of actual occupa- The 2008 amendments additionally New York law, it is an act of actual tion, and not such acts of ownership eliminate the possibility that de mi- occupation, such that could trigger a as could be characterized as construc- nimis, non-structural encroachments, cause of action in ejectment. Recog- tive possession. such as fences, hedges, shrubbery and nizing the nature of the actual posses- sheds, and lawn mowing or similar There is only one reference in the sion required under New York law, maintenance can be characterized as legislative history of the 2008 amend- the courts have explained that proof suffi cient acts of adverse possession. ments that speaks of the purpose of payment of real estate taxes may Rather, as a matter of law these acts of eliminating the cultivation or help to prove the adverse possessor’s are “deemed to be permissive and improvement requirement. It is a claim of title. However, it would not non-adverse.”35 memorandum in support of an earlier be a suffi cient act of possession under version of the bill that contained the the adverse possession doctrine.30 A statutory modifi cation to a same change and was submitted by Did the New York Legislature intend common law doctrine is narrowly the New York State Bar Association. to eliminate this fundamental require- construed to preserve common law The memorandum explained: ment of actual possession when it requirements not expressly modi- fi ed. This principle has been stated in embraced an “acts of ownership” S. 7915 Would Pre- various forms. The Court of Appeals standard? There is nothing in the vent Stealth Takings of has stated that the common law terms of the 2008 amendments or its Property. legislative history that indicates this “will be held to be no further abro- was intended. Presently the statute gated than the clear import of the permits acquisition of language used in the statute abso- The nature of the notice provided property by an adverse lutely requires.…”36 Similarly, it has to the owner through such act of possessor if the adverse stated that the “Legislature may not

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 7 be presumed to make any innova- evidenced by public acts of owner- of limitations for recovery of real tion upon the common law further ship.”40 This aspect of the actual property had already expired. Curi- than is required by the mischief to be possession requirement recognized ously, only the Fourth Department remedied.”37 The mischief in question only in some other states is likely not has consistently refused to apply the targeted by the 2008 amendments embraced by the 2008 amendments. amended statute retroactively to such was avoiding possible stealth takings Rather, the Court of Appeals has, claimants. Decisions in the Second of property. Thus, in light of the long- in the past, required actual occupa- and Third Departments are divided. recognized common law standard tion—expulsion of the true owner.41 In the First Department, there is no governing actual possession, the 2008 Certainly the overall legislative decision in the appellate court but amendments should be read as re- purpose of the 2008 amendments, to the lower courts are also divided. quiring (a) acts of possession, (b) that avoid stealth takings, would be best The issue was raised before the evidence usual acts of ownership, and served by continuing to insist on an Court of Appeals in Estate of Becker v. (c) put a reasonably diligent owner on actual, and not constructive, posses- Murtagh.44 However, in that case the notice of the possessor’s claim of title. sion requirement. Court noted the amended statute was not applicable because (a) the adverse When read in this manner, the Retroactive or Prospective possessor’s title vested and (b) the 2008 amendments now align New action was fi led before the effective York law with the actual possession Requirements date of the new statute.45 Thus, the requirement imposed in most other Section 9 of the 2008 legislation court did not explore the propriety states, namely a requirement of an act provides: “[t]his act shall take ef- of applying the amended statute of ownership. This requirement was fect immediately, and shall apply to retroactively. recognized and explained in cases claims fi led on or after such effective 38 46 such as Lessee of Ewing v. Burnet. In date.”42 The terms of the statute, if lit- Franza v. Olin was one of the that case the Court summarized Ohio erally applied, would require a court fi rst appellate decisions addressing law in the following terms: to apply the new statutory provisions the constitutionality of retroactively applying the 2008 amendments to the It is well settled, that to to any action to quiet title, or any action in ejectment, fi led after July adverse possession law to all actions constitute an adverse fi led after the effective date of the possession, there need 7, 2008 even if the adverse possessor acquired title prior to the enactment legislation. In that case the adverse not be a fence, building or possessor claimed acquisition of title other improvement…; it of the statute. The New York courts have repeatedly confi rmed that the as early as 1985 but did not fi le an suffi ces…that visible and action to quiet title until August 18, notorious acts of owner- adverse possessor becomes the owner of the property immediately upon 2008—approximately six weeks after ship are exercised over the the effective date of the 2008 amend- premises in controversy…. expiration of the statute of limita- tions.43 A quiet title action only serves ments. The court refused to apply So much depends on the the amended version of the statute nature and situation of to confi rm that outcome. Yet, if the new statutory provisions govern all because this would impair vested the property…that it is property rights. The court reaffi rmed diffi cult to lay down any actions fi led after enactment of the statute, they could serve to strip the that at the expiration of the statu- precise rule…But it may tory limitations period, legal title is with safety be said, that adverse possessor of a vested proper- ty interest whenever that party could transferred from the owner to the where acts of ownership adverse possessor. The court noted have been done upon land, not satisfy the new statutory require- ments. For example, title could not that newly enacted section 543 of the which, from their nature, NYRPAPL defi nes as permissive and indicate a notorious claim be confi rmed if the adverse possessor entered with hostile intention and non-adverse actions that were suf- of property in it…such acts fi cient to obtain title under prior law. are evidence of an ouster the court was forced to reject hostile intention as a recognized form of ad- The court then ruled: “It therefore of a former owner, and an follows that, where title has vested actual adverse possession versity by applying the 2008 statutory 39 amendments retroactively. by adverse possession, it may not against him. be disturbed retroactively by newly However, the Ewing case went A number of decisions in the enacted or amended legislation.”47 on to explain that “[n]either actual appellate courts have considered Rather, application of the amend- occupation, cultivation nor residence, whether the 2008 amendments to ments to plaintiff, whose title to the are necessary to constitute actual the adverse possession law can be disputed property would have vested possession… when the property is so applied to all adverse possessors who prior to 2008, is unconstitutional.48 situated as not to admit of any per- were parties to actions to quiet title The Fourth Department faced the manent useful improvement, and the fi led after the effective date of the same issue in Perry v. Edwards49 and continued claim of the party has been new statute. In these cases the statute

8 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 Hammond v. Baker50 and adhered to its Similarly, in Ziegler v. Serrano55 enacted section 543 of the NYRPAPL decision in the Franza case. the court applied the 2008 amend- if that provision governed. The court ments to the adverse possession law applied the new statutory provision Three decisions in the Third De- to an action commenced in Septem- without any discussion of the retroac- partment have addressed the retroac- ber 2008 involving a claim of adverse tive nature of that decision and with- tive application of the 2008 amend- possession since 1985. The court not- out mentioning earlier decisions that ments to the adverse possession ed that the 2008 amendments require had reached a contrary conclusion. law. Two of the three decisions have possession under a claim of right and The same conclusion was reached applied the 2008 amendments ret- a reasonable basis for that claim. In earlier in Hartman v. Goldman,63 which roactively. However, the court’s last the case before it, a deed plaintiffs also involved application of newly decision, in Barra v. Norfolk Southern had received in 1985, plus dismissal 51 enacted section 543 of the NYRPAPL. Railway Company, refused to do so. of defendants’ 1992 action challeng- In that case, however, the court noted Barra involved a claim of easement by ing their title, provided plaintiffs “[t]he parties do not dispute that this prescription, but the court explained with the necessary reasonable basis to action is governed by article 5 of the that it is well settled that statutory believe they owned the property.56 Of RPAPL, as amended in 2008, appli- changes affecting the law of adverse course, the same facts would estab- cable to all claims fi led on or after possession concomitantly alter the lish the requisite adversity under July 7, 2008.”64 It is not clear from the common law doctrine of prescrip- prior law, but the court went out of its 52 later decision in the Wright case if tive easement. The court noted that way to apply the 2008 amendments, either party raised the claim that the plaintiffs’ claim was fi led in March including the new “reasonable basis” amended statute was inapplicable. 2009 but the prescriptive periods all requirement in section 501 (3) of the Finally, in Calder v. 731 Bergan LLC,65 commenced and concluded prior to NYRPAPL. the effective date of the 2008 amend- the court applied, without discussion, ments. The court explained that if The Second Department has is- the newly enacted requirement that plaintiffs succeed in proving their sued many opinions addressing the a claim of right must be based on a claims, rights to the easement in ques- retroactive nature of the 2008 amend- reasonable basis for the belief by the tion would have vested prior to the ments to the adverse possession adverse possessors that they owned effective date of the amendments, and law—the largest number of decisions the disputed property.66 In that case concluded that such rights may not in any department. These decisions the reasonable basis for such a belief be disturbed retroactively by newly are also divided. Three have applied was deemed to exist because the enacted or amended legislation.53 The the 2008 amendments retroactively; adverse possessors were advised that court cited the Fourth Department’s eight have refused to do so.57 the disputed parcel was part of the decision in the Franza case and the property they purchased from HUD. In Hogan v. Kelly58 the court re- Court of Appeals’ decision in Baker v. These facts would satisfy the claim of fused to apply the 2008 amendments Oakwood. The court did not mention right requirement under prior law as retroactively. The court explained: the two decisions in the Third Depart- well, but the court applied the new, “Although this action was com- ment that had reached a contrary specifi c legal requirement of a reason- menced after the effective date of the conclusion. able basis for a claim of right. 2008 amendments, we agree with our In Sawyer v. Prisoky,54 decided by colleagues in the Third and Fourth These seemingly inconsistent the Third Department before Barra, Department that the amendments decisions in the Second Department the action was commenced in Sep- cannot be retroactively applied to have led to inconsistent decisions tember 2008 but involved a claim deprive a claimant of a property right among judges sitting in Supreme of adverse possession that com- which vested prior to their enact- Court in the Second Department. menced in 1997. The court applied ment.”59 This view was followed in Some lower court decisions have the 2008 amendments. It specifi cally later decisions in the Second Depart- refused to apply the 2008 amend- discussed and applied the newly ment issued in 2012 and 2013.60 It was ments retroactively, citing the Hogan enacted section 543 of the NYRPAPL. also followed in two decisions issued and Shilkoff decisions.67 Others have The court concluded that plaintiffs’ by the Second Department in 2014— applied the 2008 amendments ret- maintenance of a lawn, walkway and decisions that explained they were roactively, ignoring the Hogan deci- beach, as well as plantings and “rock required to apply the law in effect at sion and citing the Hartman decision wall,” are all acts that are permissive the time title allegedly vested.61 instead.68 and non-adverse, as a matter of law, However, three decisions in the The First Department has not is- under newly enacted section 543. As Second Department have taken a sued an opinion regarding retroactive a result, the court affi rmed the lower contrary view, including the court’s application of the 2008 amendments court’s grant of defendants’ limited 2013 decision in Wright v. Sokoloff.62 In to the adverse possession law. The motion to dismiss. that case the facts implicated newly lower courts in the First Department,

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 9 however, have addressed the issue transactions is not as broad sessor’s acts of actual possession be- and are similarly divided. At times as its power to regulate gun in 2002 might have been planting the Supreme Court has refused to future transactions…the hedges and shrubbery and/or lawn apply the statute retroactively, citing Legislature is not free to mowing. Based on prior law such ac- decisions in the Third and Fourth impair vested or property tions could be characterized as valid Departments such as Franza v. Olin.69 rights.… This doctrine acts of actual possession.74 However, However, other decisions in Supreme refl ects the deeply rooted the 2008 amendment provide that Court have applied the 2008 amend- principles that persons these actions “shall be deemed to be ments retroactively, citing decisions in should be able to rely on permissive and non-adverse.”75 The the Third Department such as Sawyer the law as it exists and issue becomes whether an adverse v. Prisoky.70 plan their conduct accord- possessor’s potential claims can be ingly and that the legal eliminated by the 2008 legislation. In summary, the decisions in rights and obligations Governing principles for this is- the Second and Third Departments that attach to completed sue have been provided by the New remain divided, while the issue of transactions should not be York Court of Appeals. The Court retroactive application of the 2008 disturbed… amendments has yet to be addressed has noted that: “Although a statute is in the First Department. The conse- Let there be no mistake, not invalid merely because it reaches quence is unpredictable outcomes at our decision rests on the back to establish the legal signifi cance the trial court level. Only the Fourth constitutionally based pro- of events occurring before its enact- Department has consistently refused tection against legislative ment, a traditional principle applied to apply the 2008 amendments to interference with vested in determining the constitutionality adverse possessors that allege their rights, a doctrine with a of such legislation is that the Legis- property rights vested prior to the ef- long tradition….72 lature is not free to impair vested or fective date of the 2008 amendments. property rights….”76 At fi rst glance As applied to the adverse posses- the argument surfaces that the 2008 An analysis of decisions of the sion doctrine, it is settled that when amendments merely establish the New York Court of Appeals indicates the statute of limitations has run, the legal signifi cance of the acts of plant- that the Fourth Department’s position adverse possessor has acquired a 73 ing shrubbery or lawn mowing, or regarding the retroactive application vested property interest. The 2008 even entry with knowledge that the of the 2008 amendments is the correct amendments cannot interfere with adverse possessor is not the owner. decision. In Alliance of American Insur- such vested rights. However, the more fundamental is- ers v. Chu71 the Court summarized The discussion above has focused sue is whether the adverse possessor settled principles of judicial review of on a scenario in which an adverse can claim a vested interest in continu- legislative enactments in these terms: possessor has acquired title prior to ing the same actions that were previ- We are mindful, of course, the effective date of the 2008 amend- ously recognized as valid forms of that the legislation carries ments but fi les an action to quiet title adverse possession and would have a presumption of consti- after the effective date. A different led to acquisition of title but for the tutionality.… This prin- scenario that the courts have yet to enactment of the 2008 amendments. ciple requires us to avoid address is one in which the adverse The Court of Appeals, in 1969, interpreting a statute in a possessor commenced occupancy made it clear that determining when way that would render it prior to the effective date of the 2008 a right becomes vested is not a me- unconstitutional if such amendments but has not yet acquired chanical decision. Rather, a construction can be title on the effective date. The 2008 avoided.… In this case, amendments contain substantial [w]hen embarking on a however, there is no ques- changes in the recognized elements journey into the realm tion of statutory interpre- for a successful claim of adverse of “vested rights,” it is tation. The effects of the possession. These changes will cause dangerous indeed not to legislation are obvious and some actions that earlier satisfi ed the proceed with great caution acknowledged. If those fi ve requirements for adverse pos- for the concept is a fi ction effects infringe on consti- session to no longer be given legal and hides many unmen- tutionally protected rights, recognition. For example, an adverse tioned considerations of we cannot avoid our obli- possessor may have begun his or her fairness to the parties, gation to say so… period of adverse possession in 2002 reliance on pre-existing with hostile intention. Yet after July 8, law, the extent of retroac- The State’s power to alter 2008 hostile intention would no lon- tivity and the nature of the the rights and obligations ger be recognized as a valid form of public interest to be served that attach to completed adversity. Similarly, the adverse pos- by the law…. The modern

10 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 cases refl ect more candid strong reliance interest is likely to possession, not accompanied considerations of these be recognized. Moreover, fairness to with any claim of right it will never constitute a bar…. relevant factors as well as the parties cuts in favor of the exist- a less infl exible view of the ing owner. Indeed, the demanding Id. at 597. (ruling that the claim of the adverse possessor need not be made in right of the Legislature to fi ve-part adverse possession doctrine good faith). pass retroactive legislation. itself seeks to protect the existing 11. The court notes that possession In any event, this is an owner’s interest whenever possible. unaccompanied by a claim of right never area where broad conclu- constitutes a bar to the true owner but sions are to be studiously also states the bona fi des of the claim of Conclusion the occupant is not essential. 216 N.Y. avoided for it is impossible 362, 370-371, 110. N.E. 772, 775 (1915). to predict in advance how The 2008 legislative amendments to the New York adverse possession 12. 228 N.Y. 296, 302, 127 N.E. 239, 241 (1920) in each concrete case the (emphasis added). various factors will line doctrine have created a fair amount 13. Walling v. Przybylo, 7 N.Y.3d 228, 232- 77 of uncertainty concerning the doc- up. 33, 851 N.E.2d 1167, 1170 (2006) (citing trine. The New York Court of Ap- Humbert v. Trinity Church, 24 Wend. 587 As discussed earlier, it is settled peals has not yet addressed any of (1840)). that an adverse possessor’s property the issues raised. It seems reasonable 14. See, e.g., Belotti v. Bickhardt, 228 N.Y. 296, rights are vested at the expiration of to conclude that the lower courts can 301-03, 127 N.E. 239, 241 (1920). the statute of limitations. However, resolve the uncertainty created in 15. See Barnes v. Light, 116 N.Y. 34, 22 N.E. whether an adverse possessor may the revised standards concerning the 441 (1889) (discussing the requirements claim a vested interest in the accepted claim of right and the actual posses- of N.Y. Code Civ. Pro. §§ 367-373, a methods of acquiring title by adverse predecessor to the NYRPAPL which also sion requirements. This article has required a “claim of title”). See also Van possession prior to the 2008 revisions explored the form and justifi cations Valkenburgh v. Lutz, 304 N.Y. 95, 106 is not settled. As the Court of Appeals for possible resolution of the issues N.E.2d 28 (1952) (discussing the “claim has noted, it will consider (a) consid- raised. However, given the divided of title” requirement contained in Civ. erations of fairness to the parties, (b) Prac. Act §§ 34-41-a, the immediate decisions in the appellate courts it is predecessor to the NYRPAPL). reliance on pre-existing law, (c) the incumbent on the Court of Appeals extent of retroactivity, and (d) the na- 16. See Introducer’s Memorandum in to clarify the retroactive nature of the Support, 2008 New York State Legislative ture of the public interest to be served amendments the Legislature enacted. Annual at 182 (this bill provides that by the law. The Legislature made it title pursuant to adverse possession clear that eliminating hostile taking of shall be defeated if the claimant has no property was an important goal. The Endnotes “claim of right” or reasonable basis for the belief that the property belongs to the 1. See Property—Adverse Possession, Legislative Memorandum in support claimant). S-7915-C, ch. 269, 2008 N.Y. Sess. Laws of the legislation explained that: (McKinney). 17. Legislative Memorandum relating to ch. 269, 2008 McKinney’s Session Laws at 2. Mem.of Opp’n of Real Property Law Adverse possession should 1941. be used to settle good Section, New York State Bar Association, Gov. Bill Jacket at 18 A-21 (July 2, 2008). 18. Id. faith disputes over who See also Robert E. Parella & Robert M. owns land. It should not 19. See 74 A.D.3d 1610, 1611-12, 905 N.Y.S.2d Zinman, Adverse Possession: What Hath 297, 299-300 (3d Dep’t 2010) (citing be a doctrine which can the New York Legislature Wrought?, 37-1 RPAPL § 501(3)). be used offensively to N.Y. REAL PROP. L.J. 27, 30-32 (2009) (discussing the interpretive problems the 20. Id. at 1612. deprive a landowner of legislature left for the courts to resolve). 21. 42 Misc.3d 1219(A), 986 N.Y.S.2d 868 their real property. That 3. Property—Adverse Possession, S-7915-C, (Sup. Ct. Suffolk Cnty. 2013). only encourages mischief ch. 269, 2008 N.Y. Sess. Laws § 2, § 4 22. Id. at 6. between neighbors and (McKinney). 23. Id. at 7. even between families. No 4. See id. § 1 (adding a new section 501 of good can come of it. This the NY RPAPL). 24. N.Y. REAL PROP. ACTS. §§ 512(1)-(2), 522 (1)-(2) (1962) (amended 2008). These is an incentive which must 5. Id. requirements were also part of the 78 be curtailed. 6. N.Y. REAL PROP. ACTS. Law § 501(3) predecessor to the NYRPAPL. (McKinney 2008). Given the importance of this goal 25. Property—Adverse Possession, S-7915-C, 7. Id. § 501(1). ch. 269, 2008 N.Y. Sess. Laws (McKinney) to the Legislature, and the fact that (amending NYRPAPL § 512 and § 522). 8. 24 Wend. 587 (N.Y. 1840). an adverse possessor is or should 26. See Monnot v. Murphy, 207 N.Y. 240, be aware that a potential claim of 9. Id. at 604. 100 N.E. 742 (1913) (relating the actual ownership can be lost, at any time, 10. The court explained: occupancy requirement in Code of Civil Procedure section 371 to the by interruption by the true owner, In testing a defense founded enclosure, cultivation and improvement on possession, courts of justice then it seems likely the courts will requirement in section 372); see also direct their attention to…the not recognize a vested interest in the Stickler v. Halevy, 794 F. Supp. 2d 385, intention with which it is taken 397 (E.D.N.Y. 2011). prior methods of acquiring title. No and continued. If it be a naked

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 11 27. Ramapo Mfg. Co. v. Mapes, 216 N.Y. 362, 13, 2008. Nonetheless the court rejected N.Y.S. 2d 229 (Sup. Ct. Queens Co. 2011) 110 N.E. 772 (1915). defendants’ contention that the court (citing Hogan v. Kelly). should apply the amended version of the 28. Brand v. Prince, 35 N.Y.2d 634, 636, 68. See, e.g., Reyes v. Carroll, 42 Misc. 3d(A) RPAPL because, citing Franza, if title has 324 N.E.2d 314 (1974). This is a view 1219 (Sup. Ct. Suffolk Co. 2013) (applying vested by adverse possession it may not reaffi rmed in Ray v. Beacon Hudson the reasonable basis requirement and de be disturbed retroactively. Id. at 1290. Mountain Corp., 88 N.Y.2d 154, 159, 666 minimis non-structural encroachment N.E.2d 532 (1996). 51. 75 A.D. 3d 821, 826, 907 N.Y.S. 2d 70 (3d provisions in newly enacted sections Dep’t 2010). 501 and 543 of the NYRPAPL, without 29. Archibald v. The New York Cent. and citation or discussion of retroactivity). Hudson River R.R. Co., 157 N.Y. 574, 583, 52. Id. at 825 n.5. Giannasca v. Lind, 34 Misc. 3d 227, 52 N.E. 567 (1899). 53. Id. at 826. 934 N.Y.S. 2d 656 (Sup. Ct. Queens Co. 30. See, e.g., Archibald v. The New York Cent. 54. 71 A.D. 3d 1325 (3d Dep’t 2010). 2011) (citing Hartman v. Goldman, as and Hudson River R.R.Co., 157 N.Y. 574, well as Sawyer v. Prisoky in the Third 583, 52 N.E. 567 (1899); Ray v. Beacon 55. 74 A.D. 3d 1610, 905 N.Y.S. 2d 297 (3d Department). Hudson Mountain Corp., 88 N.Y.2d 154, Dep’t 2010). 69. E.g., LBMH Group, L.P. v. Safer, 29 Misc. 163 note 5 (1996). 56. Id. at 1612. 3d(A) 1236, 920 N.Y.S. 2d 242 (Sup. Ct. 31. 8 Cow. 589, 603 (1826). 57. In addition, one decision did not reach New York Co. 2010). 32. Barnes v. Light, 116 N.Y. 34, 39, 22 N.E. the issue of retroactivity since the facts in 70. Neighborhood Eighth Avenue LLC. v. 441 (1889). question stated a cause of action under 454-458 W. 128th Street Co., LLC 2010 both the amended law and prior law. 33. N.Y. REAL PROP. ACTS. § 501(1). N.Y. Slip. Op. 31160 (Sup. Ct. New York Maya’s Black Creek, LLC v. Angelo Balbo Co. 2010). 34. New York State Bar Association’s Realty Corp., 82 A.D. 3d 1175, 920 N.Y.S. Memorandum in Support, Bill Jacket, 2d 172 (2d Dep’t 2011). 71. 77 N.Y.2d 573, 571 N.E.2d 672, 569 N.Y.S. 2d 364 (1991). ch. 269, 2008 S.B. 7915, available at 58. 86 A.D. 3d 590, 927 N.Y.S. 2d 157 (2d http://old.nysba.org/Content/ Dep’t 2011). 72. Id. at 585-6 (citations omitted). ContentFolders/Legislation/ 73. See Baker v. Oakwood, 123 N.Y. 16, 25-30, LegislativeMemoranda20072008/ 59. Id. at 592 (citations omitted). 25 N.E. 312 (1890) (title to an estate in NYSBAMemorandum23.pdf. 60. Sprotte v. Fahey, 95 A.D.3d 1103, 944 land may be acquired by one and lost by 35. N.Y. REAL PROP. ACTS. § 543(1). N.Y.S.2d 612 (2d Dep’t 2012); Shilkoff v. another by means of adverse possession. Longhitano, 94 A.D.3d 974, 943 N.Y.S.2d This principle has become a rule of 36. Dean v. Metro. Elevated Ry. Co., 119 N.Y. 144 (2d Dep’t 2012); Matter of Dorothy 540, 547, 23 N.E. 1054 (1890). property that cannot now be disturbed Lee, 96 A.D.3d 941, 946 N.Y.S.2d 621 (2d without grave injury to titles). 37. Psota v. Long Island RR. Co., 246 N.Y. Dep’t 2012); Pakula v. Podell, 103 A.D.3d 388, 393, 159 N.E. 180, 181 (1927) (citing 864, 962 N.Y.S.2d 254 (2d Dep’t 2013); 74. See, e.g., Ramapo Mfg. Co. v. Mapes, Dean at 547, 23 N.E. at 1054). Galchi v. Garabedian, 105 A.D.3d 700, 961 216 N.Y. 362, 372-3, 110 N.E. 772 N.Y.S.2d 588 (2d Dep’t 2013). (1915) (discussing mowing a lawn as 38. 36 U.S. 41 (1837). a form of cultivation or improvement 61. Scalamander Cove, LLC v. Bachmann, 39. Id. at 52-53 (citing Ellicott v. Pearl, 35 U.S. suffi cient to satisfy the actual possession 119 A.D.3d 547, 987 N.Y.S.2d 902 (2d 412 (1836)). requirement). Dep’t 2014); Galli v. Galli, 117 A.D.3d 679, 40. Id. at 53 (emphasis added). 985 N.Y.S.2d 273 (2d Dep’t 2014). See also 75. N.Y. REAL PROP. ACTS. Law § 543(1), (2). 41. See supra notes 28-29 and accompanying Klein v. Aronshtein, 116 A.D.3d 670, 983 76. Hodes v. Axelrod, 70 N.Y. 2d 364, 369-370, text. N.Y.S.2d 298 (2d Dep’t 2014) (applying 520 N.Y.S. 2d 933, 515 N.E.2d 612 (1987). prior law without discussion). See also Alliance of American Insurers v. 42. Property—Adverse Possession, S-7915-C, Chu, 77 N.Y. 2d 573, 585-6, 569 N.Y.S. 2d ch. 269, § 9, 2008 N.Y. Laws (McKinney). 62. 110 A.D. 3d 989, 973 N.Y.S. 2d 743 (2d Dep’t 2013). 364, 571 N.E.2d 672 (1991). 43. See Baker v. Oakwood, 123 N.Y. 16, 77. In re Chrysler Properties, Inc., 23 N.Y. 2d 25-29, 25 N.E. 312, 314-316 (1890) (citing 63. 84 A.D. 3d 734, 924 N.Y.S. 2d 97 (2d Dep’t 515, 518-9, 297 N.Y.S. 2d 723, 245 N.E.2d e.g., Cahill v. Palmer, 45 N.Y. 478 (1871); 2011). 395 (1969). See also Hodes at 370-371; Reformed Church v. Schoolcraft, 65 N.Y. 64. Id. at 735. In Hartman the action was fi led Alliance of American Insurers at 586. 134 (1875)); Franza v. Olin, 73 A.D. 3d in April 2009, but the adverse possession 44, 46-7, 897 N.Y.S.2d 804, 807 (4th Dep’t allegedly commenced in 1987 and 78. Legislative Memorandum relating to ch. 2010) (citing e.g. Gorman v. Hess, 301 continued for more than 20 years. 269, 2008 McKinney’s Session Laws 1941. A.D.2d 683, 685, Woodruff v. Paddock, 65. 83 A.D. 3d 758, 920 N.Y.S. 2d 413 (2d 130 N.Y. 618, 624 (2003)). Dep’t 2011). Vincent Di Lorenzo is profes- 44. 19 N.Y.3d 75, 968 N.E.2d 433, 945 N.Y.S.2d 66. Id. at 759 (as required under newly 196 (2012). sor of law at St. John’s University. enacted section 501 (3) of the NYRPAPL). He is the author of many books and 45. Id. at 84 n.4. 67. See, e.g., Reilly v. Achitoff, 2013 N.Y. Slip. articles concerning real estate law 46. 73 A.D. 3d 44, 897 N.Y.S. 2d 804 (2010). Op. 32711 (Sup. Ct. Suffolk Co. 2013) including New York Condominium 47. Id. at 47 (citing Baker v. Oakwood). (citing Shilkoff v. Longhitano and Hogan v. Kelly, as well as decisions in the Fourth and Cooperative Law (West). 48. Id. at 47-48. and Third Departments); Klein v. Kessler, 49. 79 A.D. 3d 1629, 913 N.Y.S. 2d 460 (2010). 2013 N.Y. Slip Op. 31276 (Sup. Ct. Suffolk Copyright © by Vincent Di Lorenzo Co. 2013) (citing Shilkoff v. Longhitano); 50. 81 A.D. 3d 1288, 916 N.Y.S. 2d 702 (2011). 2014 Powell v. Cox, 32 Misc. 3d 1237(A), 938 In Hammond the action was fi led on June

12 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 From Slums to Stadiums: A Historical Summary of New York’s Public Use Limitation By Karen M. Richards

Introduction benefi t both private enterprises and The enterprise is, in sub- 6 Judge Plager of the United States the public. A case in point is Matter of stance, a private one, and Court of Appeals for the Federal Cir- Mayor of City of N.Y., decided in 1892, the pretense that it is for a cuit observed that “[a] man’s home where the taking of privately owned public purpose is merely may be his castle, but that does not piers and wharves was upheld by colorable and illusory. The 7 keep the Government from taking it. the Court of Appeals. The Court’s taking of private property As an incident to its sovereignty, the holding was based upon a fi nding for private purposes can- Government has the authority to take that the transportation of persons and not be authorized even by private property for a public pur- property from and to foreign ports legislative act, and the fact pose.”1 Both the United States Con- by steamships had grown to such that the use to which the stitution and the New York State Con- dimensions in New York City that property is intended to be stitution limit the power of eminent “it became practically impossible to put, or the structure in- domain by providing that private transact the commercial business of tended to be built thereon, property must be taken for public use the port unless [private steamship will tend incidentally to and with just compensation.2 lines] had permanent piers at which benefi t the public by af- they could load and unload their car- fording additional accom- The concept of public use has goes.”8 Without an exclusive right to modations for business, changed considerably over the years. use permanent piers, the steamships commerce, or manufac- Part I of this article provides a history would use ports in New Jersey.9 The turing, is not suffi cient to of its evolution in New York by sum- Court opined, “[t]o minister to the ne- bring the case within the marizing key cases decided by the cessities of commerce by providing fi t operation of the right of Court of Appeals over a span of three and proper places in a seaport where eminent domain, so long centuries. The Judiciary’s limited role ships can be loaded and unloaded as the structures are to in reviewing a condemnation deter- with all proper facilities, is a public remain under private own- mination is the topic of Part II. duty owing by the state and through ership and control, and it by the municipality which gov- no right to their use or to 10 Part I erns and controls the port.” It thus direct their management is concluded that even though the City conferred on the public.14 Evolution of Public Use may lease some of the land taken to Similarly, in Matter of Niagara In the nineteenth century and private steamship lines, the land was Falls and Whirlpool Railway Company, a early twentieth century, the Court of nonetheless taken for a public use.11 railroad company sought to take pri- Appeals literally construed public However, if a property’s post-tak- vate land to construct a road, which use—property acquired by eminent ing use would be no more public than would take sightseers to Niagara domain had to, in some way, be used its pre-taking use, the Court rejected Falls.15 The Court acknowledged that by the public.3 New York State’s the argument that taking private the legislature “wisely delegate[d] highest court defi ned public use in property and transferring it to a pri- to corporate bodies the right to 1892 “as the use which each indi- vate corporation promoted the gen- construct and maintain railroads as vidual might of right demand upon eral prosperity of the community.12 In public ways for the transportation the same general terms and for the Matter of Eureka Basin Warehouse and of freight and passengers,” but it same general purposes, as any other Manufacturing Company of Long Island, recognized that “[t]he ground upon individual,”4 and in 1918, the Court the taking was impermissible because which private property may be taken defi ned it as only those uses which the proposed wharves and structures for railroad uses, without the con- were “for the benefi t and advantage “would be the private property of the sent of the owner, is primarily that of all the public and in which all corporation, and subject to its abso- railroads are highways furnishing have a right to share—a use which lute control and use as such.”13 The means of communication between the public have a right to freely enter Court did not different points, promoting traffi c upon under terms common to all.”5 and commerce, facilitating exchange; regard such a project as Even though the Court’s early in a word, they are improved ways. a public purpose or use view of public use during this time In every form of government the duty which justifi es the delega- period was narrow, it nonetheless of providing public ways is acknowl- tion to this company of the recognized that some takings could edged to be a public duty.”16 right of eminent domain.

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 13 The road proposed by the rail- The law of this age created the condemned if they were below mod- road company, however, did not con- “blight exception” to public use, but ern standards because of age, obsoles- nect at either end with a highway, and Muller limited the blight exception to cence, and decay; they did not need notably, the sole commerce promoted taking areas marked with slums and to be “as noisome or dilapidated as “was to enable the corporation, for replacing substandard and insani- those described in Dickens’ novels or a compensation to be received, to tary housing with public housing or Thomas Burke’s ‘Limestone’ stories provide for the portion of the public limited dividend housing corpora- of the London slums of other days” who may visit Niagara Falls, better tions.23 The taxing power and the to be condemned.32 Further, not every opportunities for seeing the natural police power had been used to deal single building in an area had to be attractions of the locality.”17 This was with the problems caused by slums, below civilized standards for an area “not a public purpose which justifi es such as disease, crime, heavy capital to be cleared and redeveloped, since the exercise of the high prerogative loss and a diminishing return in taxes statutes that “contemplate clearing of sovereignty invoked in aid of this and an “[e]normous economic loss and redeveloping will be of an entire enterprise.”18 Although the proposed resulting directly from the neces- area…[and] would not be very useful road would “be public in the sense sary expenditure of public funds to if limited only to areas where every that all who desire will be entitled to maintain health and hospital services single building was substandard.”33 be carried upon it,” this was not suf- for affl icted slum dwellers and to In Kaskel there was concern that fi cient “in view of the other necessary war against crime and immoral- the main purpose of the condemna- limitations, to make the enterprise a ity.”24 These powers, however, were tion was “merely to lend color to the public one so as to justify condemna- inadequate to solve the “public evils, acquisition of land for a coliseum tion proceedings.”19 Accordingly, the social and economic” of the slums.25 under the guise of a slum clearance Court found the enterprise was “es- The Legislature thus “resorted to the project.”34 The minority, dissenting sentially private and not public, and last of the trinity of sovereign pow- on the facts, cautioned that condemn- the private property cannot be taken ers by giving to a city agency the ing land that is not substandard or against the will of the owners for the power of eminent domain.”26 Us- insanitary could open the door to construction of the road.”20 ing the power of eminent domain to selected private developers: eliminate slums and provide low-cost The early Court’s restricted view housing furthered the “fundamental If the existence of a few of public use confi ned taking private purpose of government”—“to protect slum buildings within land to traditional governmental uses, the health, safety and general welfare a particular site area is such as public buildings, highways, of the public,” according to the Muller enough to divest the schools, utilities, parks, and in some Court.27 courts of jurisdiction to instances, railroads, canals, turnpikes, require that the dominant and ferries, but its view of public use The limited use of the blight ex- purpose of the project broadened in 1936.21 That year, in the ception expanded in 1943. In Murray shall be the one which seminal case of New York City Hous- v. LaGuardia, the Court signifi cantly the statute requires, the ing Authority v. Muller, the Court of departed from Muller and ruled door is opened to possible Appeals observed that public use is that condemnation of substandard evasion of this law upon a ever-changing: areas was not limited to the purpose large scale. The statutory of providing low rent housing for power fails if real prop- Over many years and in persons of low income.28 The power erty which is not slum is a multitude of cases the of eminent domain could be used to included in the site area courts have vainly at- clear and rehabilitate substandard for the sake of its own tempted to defi ne compre- areas as “a means to protect public redevelopment, instead of hensively the concept of a health and morals and to restore being included as an ad- public use and to formu- and preserve the fi nancial stabil- junct to slum property that late a universal test. They ity of municipalities which suffer cannot be redeveloped have found here as else- indirectly from conditions existing in satisfactorily without it.35 where that to formulate those blighted districts”29 and could anything ultimate, even be accomplished by “co-operation The minority’s cautionary words though it were possible, between municipal government and went unheeded, and by 1962, blight would, in an inevitably private capital.”30 was not restricted to tangible physical changing world, be unwise blight. In that year, a notable expan- if not futile… The law of The Court of Appeals again de- sion of public use occurred in Cannata each age is ultimately what parted from Muller in Kaskel v. Impel- v. City of New York, where the Court that age thinks should be litteri.31 In a 4-2 decision, the majority upheld a statute which authorized the law.22 concluded that buildings could be

14 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 “cities to condemn for the purpose the health and welfare of of Appeals concluded in a number of reclamation or redevelopment the public, in other words of hotly contested cases that creat- predominantly vacant areas which “slums,” whose eradica- ing jobs, providing infrastructure, are economically dead so that their tion was in itself found stimulating the local economy and existence and condition impairs the to constitute a public new private sector economic develop- sound growth of the community and purpose for which the ment, and increasing the property tax tends to develop slums and blighted condemnation powers of base as well as sales tax revenues are areas.”36 The Cannata majority con- government might consti- legitimate public purposes which jus- cluded that condemning an area beset tutionally be employed. tify the use of the power of eminent with intangible blight “so that it may Gradually, as the complex- domain.45 For example, taking private be turned into sites for needed indus- ities of urban conditions property was a public use in the 2009 tries is a public use.”37 became better understood, case of Goldstein v. New York State it has become clear that Urban Development Corp.46 In Gold- Judge Van Voorhis dissented and the areas eligible for such stein, an area, which was designated opined that the power of eminent renewal are not limited as blighted, would be revitalized by domain should not be used to take to “slums” as that term turning it over to a private developer property merely because city plan- was formerly applied, and to construct a 22-acre redevelopment ners think the property could be used that, among other things, project, which included a stadium for more advantageously than its current 38 economic underdevelop- a professional basketball team, eight lawful use. While he conceded that ment and stagnation are acres of open, publicly accessible the power of eminent domain had also threats to the public landscaped space, millions of square been extended to actual slums, Judge suffi cient to make their feet of offi ce space and thousands Van Voorhis wrote: removal cognizable as a of new residential units, with more the question here is public purpose.40 than one-third for low and/or middle income families.47 whether this power can Taking substandard land is, as be further extended to the the Yonkers Court recognized, “made In 2010, in Kaur v. New York State condemnation of factories, easier by the liberal rather than literal Urban Dev. Corp., the Court found stores, private dwellings defi nition of a ‘blighted’ area now taking land by eminent domain for a or vacant land which are universally indorsed by case law.”41 proposed new campus for Columbia properly maintained and As a result, blight “is something more University would bestow numerous are neither substandard than deteriorated structures. It in- “signifi cant benefi ts to the public.”48 nor insanitary, so that their volves improper land use. Therefore, Although the university is private, owners may be deprived its causes, originating many years the concern that a private enter- of them against their will ago, include not only outmoded and prise would profi t through eminent to be resold to a selected deteriorated structures, but unwise domain was not present because group of private develop- planning and zoning, poor regula- the project was “unquestionably to ers whose projects are tory code provisions, and inadequate promote education and academic believed by the municipal provisions for the fl ow of traffi c.”42 research while providing public administration to be more Further, “[i]t can encompass areas in benefi ts to the local community.”49 in harmony with the times. the process of deterioration or threat- Indeed, wrote the Court: It begs the question, in my ened with it as well as ones already the advancement of higher judgment, merely to assert rendered useless, prevention being an education is the quintes- that such properties are to important purpose.”43 be taken to prevent them sential example of a “civic from becoming actually Yonkers reaffi rmed that taking purpose.” It is fundamen- blighted at some future substandard land is a public purpose tal that education and the date.39 “just as it would be if it were taken expansion of knowledge for a public park, public school or are pivotal government In 1975, in Yonkers Community De- public street. The fact that the vehicle interests. The indisput- velopment Agency v. Morris, the Court for renewed use of the land, once it is ably public purpose of summarized the history of urban taken, may be a private agency does education is particularly renewal: not in and of itself change the per- vital for New York City Historically, urban re- missible nature of the taking of the and the State to maintain newal began as an effort substandard property.”44 their respective statuses to remove “substandard as global centers of higher As a result of the evolution of education and academic and insanitary” condi- public use, the 21st century Court tions which threatened research.50

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 15 The public would also benefi t by use in the 19th century and early [State Environmental Quality stimulating job growth in the area 20th centuries. It has evolved from Review Act], and by creating 14,000 jobs during the being narrowly defi ned to being (4) a public use, benefi t or purpose construction of the new campus, as “broadly defi ned to encompass any will be served by the proposed well as 6,000 permanent jobs follow- use which contributes to the health, acquisition.61 ing completion, and it would create safety, general welfare, convenience two acres of gateless, publicly ac- or prosperity of the community” and The party challenging the con- cessible park-like space, an open-air has evolved from condemning land demnation has the burden of estab- market zone, and upgrade transit for traditional governmental uses lishing the determination was with- infrastructure.51 “[T]here can be no to condemning land for economic out foundation and baseless. “If an doubt,” wrote the Court, that the proj- revitalization.55 adequate basis for a determination is ect “which provides for the expansion shown and the objector cannot show of Columbia’s educational facilities Part II that the determination was without and countless public benefi ts to the foundation, the [condemnor’s] de- surrounding neighborhood, including Judicial Review termination should be confi rmed.”62 cultural, recreational and job develop- In New York, judicial review is In other words, the determination ment benefi ts—qualifi es as a ‘civic set forth in Eminent Domain Proce- “must be confi rmed if ‘the exercise of project’ under the [New York State dure Law (“EDPL”). The statute “was the eminent domain power is ratio- Urban Development Corporation] enacted in 1977 to supplant a mosaic nally related to a conceivable public 52 Act.” of more than 150 scattered provi- purpose.’”63 sions with a uniform procedure”56 The expansion of public use According to the majority in and was “the culmination of nearly resulted in underutilization being a Kaur: valid justifi cation for invoking the seven years of effort by the members power of eminent domain. Underuti- of the State Commission on Eminent Whether a matter should 57 lization has not been unanimously Domain.” EDPL is “the exclu- be the subject of a public embraced, however. Half a century sive procedure by which property undertaking—whether its ago, it was criticized by the dissent- shall be acquired by exercise of the pursuit will serve a public ing judges in Kaskel, as previously power of eminent domain in New purpose or use—is ordi- 58 discussed. More recently, “the folly York state.” It provides a uniform narily the province of the of underutilization” was criticized by procedure for the public acquisi- Legislature, not the Judi- the First Department in Kaur: tion of property, giving “due regard ciary, and the actual speci- to the need to acquire property for fi cation of the uses identi- The time has come to cate- public use as well as the legitimate fi ed by the Legislature as gorically reject eminent do- interests of private property owners, public has been largely main takings solely based local communities and the quality left to quasi-legislative on underutilization. This of the environment, and to that end administrative agencies. concept…transforms the to promote and facilitate recognition It is only where there is no purpose of blight removal and careful consideration of those room for reasonable difference from the elimination of interests.”59 of opinion as to whether harmful and social and an area is blighted, that Section 207(C) of the EDPL limits economic conditions in a judges may substitute judicial review of a condemnation specifi c area to a policy their views as to the determination to whether:60 affi rmatively requiring the adequacy with which the ultimate commercial de- (1) the proceeding was in confor- public purpose of blight velopment of all property mity with the federal and state removal has been made regardless of the character constitutions, out for those of the legisla- of the community subject tively designated agencies. to such urban renewal.53 (2) the proposed acquisition is Indeed, we observed that within the condemnor’s statu- the Constitution gives the Despite such criticism, courts have tory jurisdiction or authority, “government broad power held that a fi nding by a condemnor to take and clear substan- that the property is underutilized (3) the condemnor’s determina- dard and insanitary areas constitutes an adequate basis for a tion and fi ndings were made in for redevelopment…it determination that condemnation accordance with procedures set commensurately deprives would serve a public use.54 forth in this article [EDPL article 2] and with article eight of the the Judiciary of grounds to Public use in the 21st century environmental conservation law interfere with the exer- bears little resemblance to public cise.” These principles are

16 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 based on a consistent body Despite such criticism, the Court Endnotes of law that goes back over of Appeals has held fi rm that “any 1. Hendler v. United States, 952 F.2d 1364, 50 years. Thus, a court may such limitation upon the sovereign 1371 (Fed.Cir.1991), aff’d, 175 F.3d 1374 only substitute its own power of eminent domain as it has (Fed.Cir. 1999); see also Tinnerholm v. State of New York, 179 N.Y.S.2d 582 judgment for that of the come to be defi ned in the urban (N.Y.Ct.Cl. 1958) (stating that the power legislative body authoriz- renewal context is a matter for the of eminent domain “as a prerogative ing the project when such Legislature, not the courts.”70 This of its very existence” and “[t]hrough judgment is irrational or stance, according to one court, has the exercise of this right the State may 64 appropriate private property for public baseless. made it “plain that there is no longer use.”); People v. Adirondack Ry. Co., 160 any judicial oversight of eminent N.Y. 225, 237 (1899), aff’d, 176 U.S. 335 In Goldstein, the Court stated that domain proceedings.”71 (1900) (stating that the power of eminent it was a “long-standing doctrine that domain, the power of taxation and the the role of the Judiciary is limited in Over the years, various bills have police power are “as enduring and reviewing fi ndings of blight in emi- been unsuccessfully introduced by indestructible as the state itself”). nent domain.”65 Thus, where “’those members of the State Legislature to 2. N.Y. CONST., Art. I, §7(a) (“Private bodies have made their fi nding, not address the concern that the Judiciary property shall not be taken for public use without just compensation”); see corruptly or irrationally or baselessly, abdicated its role of determining also U.S. CONST. amend. V (providing in there is nothing for the courts to do whether the taking was for a public part that “No person shall…be deprived about it, unless every act and decision use. For example, bills were proposed of life, liberty or property without due of other departments of government to amend Article I §7 of the State process of law; nor shall private property 66 be taken for public use, without just is subject to revision by the courts.’” Constitution by providing that compensation”); People v. Adirondack “[w]henever an attempt is made Ry. Co., 160 N.Y. at 236 (stating that Judge Smith, dissenting in Gold- to take private property for a use although the power of eminent domain stein, did not agree that the Judiciary alleged to be public, the question exists independently of the Constitution, it “may be limited and regulated by was limited in its review by a “long- whether the contemplated use be standing doctrine.” He wrote that the Constitution.”). See Brian Walsh, really public shall be a judicial ques- The Expansion of the Municipal Power to “[t]he determination of whether a tion, and determined as such without Take Property for “Public Use,” NYSBA proposed taking is truly for public regard to any legislative assertion Municipal Lawyer, Summer 2014 at 36 (discussing the Takings Clause use has always been a judicial ex- that the use is public.”72 If there is “a ercise…[as cases] from Bloodgood of the Fifth Amendment of the U.S. question about a taking being for a Constitution). in 1837 through Yonkers Community truly public use, the question shall Development in 1975, demonstrate.… 3. Kelo v. City of New London, 268 Conn. be a judicial question, and the court, 1, 126 (2004) (Zarella, J., dissenting) While no doubt some degree of defer- when determining the answer, shall (discussing the evolution of the public ence is due to public agencies and to not consider any legislative assertions use requirement). legislatures, to allow them to decide that the use is for a public purpose.”73 4. In re Mayor of N.Y., 135 N.Y. 253, 260 the facts on which constitutional (1892). rights depend is to render the consti- In the future, if similar bills 5. Bradley v. Degnon Contracting Co., 224 tutional protections impotent.”67 should pass, the Judiciary would not N.Y. 60, 71 (1918) (stating “Public use have a limited role in reviewing an necessarily implies the right of use by the public.”). He thought the Goldstein major- agency’s fi nding of blight in an emi- ity was “much too deferential to the nent domain proceeding. Until then, 6. Bloodgood v. The Mohawk & Hudson R.R.Co., 18 Wend. 9 (1837). self-serving determination” of blight the role of the Judiciary is limited. made by a condemning agency.68 7. Mayor, 135 N.Y. 253. 8. Id. at 263. [T]he whole point of the Conclusion public use limitation is to 9. Id. prevent takings even when The evolution of public use, 10. Id. a state agency deems them and in particular, the creation of the 11. Id. at 263-264. blight exception, expanded beyond desirable. To let the agency 12. In re Eureka Basin Warehouse & Mfg. Co. itself determine when the traditional governmental uses. It now of Long Is., 96 N.Y. 42, 48 (1884). encompasses “any use which con- public use requirement 13. Id. at 46. tributes to the health, safety, general is satisfi ed is to make the 14. Id. at 48-49. agency a judge in its own welfare, convenience or prosperity of the community.”74 While the defi ni- 15. In re Niagara Falls & W. Ry. Co., 108 N.Y. cause. I think it is we who 375, 382 (1888). should perform the role of tion has broadened over the years, a court’s role in reviewing a condem- 16. Id. at 385. judges, and that we should 17. Id. at 382-84. do so by deciding that the nor’s determination and fi ndings has 18. Id. at 384. proposed taking in this remained limited. 19. Id. at 386. case is not a public use.69

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 17 20. Id. at 387. 33. Id. at 79 (stating “[i]t is not to be domain to acquire tenants’ leasehold assumed that responsible public offi cers interests without also acquiring the 21. Cannata v. City of New York, 11 N.Y.2d will, in some future instance, label as underlying real property interests. The 210, 216-17 (1962); Pocantico Water-Works ‘substandard and insanitary’ an area in leases contained provisions that might Co. v. Bird, 130 N.Y. 249, 259 (1891). which there are not buildings at all, or restrict or impede the development of 22. New York City Hous. Auth. v. Muller, fi ne, modern buildings only, or that they what was touted to be one of the largest 270 N.Y. 333, 340 (1936) (examining the will attempt to condemn a number of economic development projects in the Municipal Housing Law). such buildings by stretching the concept history of the State of New York, Destiny 23. Id. at 337, 342. of ‘area.’ Such attempts can be dealt with USA. The court confi rmed SIDA’s if and when they are made.”). determination that “numerous public 24. Id. at 339. purposes would be served, including 34. Id. at 83. 25. Id. advancing the general prosperity and 35. Id. at 86-87. economic welfare of both residents of the 26. Id. 36. Cannata v. City of New York, 221 N.Y.2d City and the general population of the 27. Id. at 340 (although only a small number 457 (1961) (providing that intangible State, promoting tourism and attracting of citizens would benefi t by living in blight could consist of a number of visitors from outside the economic the low rent housing project—persons conditions or combinations thereof, development region, ameliorating of low income—“[u]se of a proposed such as: “subdivision of the land into economic deterioration and promoting structure, facility or service by everybody lots of such form, shape or size as to employment in the City, and increasing and anybody is one of the abandoned be incapable of effective development; the property tax base as well as sales universal tests of a public use” and by obsolete and poorly designed street tax revenues.”); In re Fisher v. New eliminating slums and providing low- patterns with inadequate access; York State Urban Dev. Corp., 730 cost housing, the entire public, not just unsuitable topographic or other physical N.Y.S.2d 516 (2001) (fi nding that where a particular class in the community, is conditions impeding the development a public purpose was served by taking protected and safeguarded). of appropriate uses; obsolete utilities; land to clear space for construction of 28. In re Murray v. La Guardia, 291 N.Y. 320, buildings unfi t for use or occupancy new facilities for the New York Stock 331 (1943) (discussing Redevelopment as a result of age, obsolescence, etc.; Exchange because its departure from the Companies Law). dangerous, unsanitary or improper New York City’s fi nancial district “would uses and conditions adversely affecting be detrimental to the City and State 29. Id. public health, safety or welfare; scattered economy” and the project would increase 30. Id. at 332. (It did not matter that private improvements.” ). tax revenues, economic development and interests would benefi t, according to the job opportunities “as well as preservation 37. Cannata, 11 N.Y.2d at 215 (fi nding Court, if, upon the project’s completion, and enhancement of New York’s “nothing unconstitutional on the face of “the public good is enhanced.”) (In prestigious position as a worldwide this statute or in its proposed application Murray, although Chief Justice Lehman fi nancial center.”). to these undisputed facts. Taking of wrote a very brief dissenting opinion, substandard real estate by a municipality 45. In re Goldstein, 13 N.Y.3d at 524. he clearly stated his opposition to for redevelopment by private conveying condemned lands to a private 46. Id. at 527. corporations has long been recognized as company. He opined that the power of 47. In re Kaur, 15 N.Y.3d at 259. a species of public use.”). eminent domain may not “be granted 48. Id. at 258-59. to a city or public corporation for the 38. Id. at 215-223. 49. Id. at 259 (citing Cornell University purpose of taking private property to be 39. Id. at 217. transferred to and held thereafter by a v. Bagnardi, 68 N.Y.2d 583, 593 (1986) private corporation to which the power 40. Yonkers Cmty. Dev. Agency v. Morris, (recognizing that schools, both public of eminent domain could not be granted 37 N.Y.2d 481 (1975) (fi nding that where and private, “serve the public’s welfare directly”). private land was taken for Otis Elevator and morals”)). Company, a leading industrial employer 50. Id. 31. Kaskel v. Impellitteri, 306 N.Y. 73 in the city, to expand its operations, the (1953) (alleging that a taking of land in issue was whether the taking served a 51. Id. (stating “Since the constitutionality of Manhattan was really for the purpose of dominantly public purpose). the UDC Act pertaining to ‘civic projects’ obtaining federal funds to support the is not challenged by petitioners, we 41. Id. at 483. erection of a new coliseum, taxpayers respectfully disagree with our concurring suing under General Municipal Law § 51 42. Id. at 483-484 (noting that “[n]or is it colleague that it should be addressed were required to make out either actual necessary that the degree of deterioration here. Moreover, we do not believe fraud or illegality in the sense of a public or precise percentage of obsolescence that anything in our opinion could expenditure totally beyond the power or mathematical measurement of other reasonably be construed to mean that of a condemning agency because those factors be arrived at with precision, ‘private tennis camps or karate schools’ are the only grounds on which taxpayers since the combination and effects of such or ‘private casinos or adult video stores’ had standing under section 51); see also things are highly variable. These matters would qualify as a ‘civic project’ within Yonkers Cmty. Dev. Agency v. Morris, call for the exercise of a considerable the meaning of the UDC Act”); see N.Y. 37 N.Y.2d 478, 486 (1975) (Van Voorhis, degree of practical judgment, common UNCONSOL. LAWS § 6253[6][c]. J., dissenting) (stating “[i]nterestingly, sense and sound discretion.”). the entire [Kaskel] court concurred in 52. In re Kaur v. New York State Urban Dev. 43. Id. at 483. the initial premise of Judge Van Voorhis Corp., 15 N.Y.3d 235 (2010) (citing (who dissented on the facts) that, in order 44. In re Goldstein v. New York State Urban Gallenthin Realty Dev. Inc. v. Borough of to utilize the public purpose attached Dev. Corp., 13 N.Y.3d 511 (2009); In re Paulsboro, 191 N.J. 344, 365 (2007) to clearance of substandard land, such Kaur v. New York State Urban Dev. (noting that “Under that approach, any clearance must be the primary purpose Corp., 15 N.Y.3d 235, 257 (2010); see also property that is in a less than optimal of the taking, not some other public In re Kaufmann’s Carousel, Inc. v. City manner is arguably ‘blighted.’ If such an purpose, however laudable it might of Syracuse Indus. Agency (“SIDA”), 301 all-encompassing definition of ‘blight’ be…”). A.D.2d 292, 296 (2002) (fi nding where were adopted, most property in the State SIDA exercised its power of eminent would be eligible for redevelopment”)); 32. Kaskel, 306 N.Y. at 78.

18 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 In re Condemnation by Redevelopment authorized by section 207 [of the EDPL] 65. In re Goldstein, 13 N.Y.3d at 526 (citation Auth. of Lawrence Cnty., 962 A.2d 1257, would expedite development once the omitted). As far back as Kaskel, and 1265 (2008) (holding use to less than full hearing was concluded. The “partnership re-iterated in In re Goldstein, the Court potential does not constitute of planning” envisaged by the statute, stated that it “might intervene to prevent “economically undesirable” land use); the Commission stated, would lessen the an urban development condemnation on Sweetwater Valley Civic Assoc. v. City of public’s “natural” resistance to projects. public use grounds—where ‘the physical National City, 18 Cal.3d 270, 133 (1976); Id. at 294-95. conditions of an area might be such that Southwestern Illinois Dev. Auth. v. it would be irrational and baseless to 57. N.Y. EM. DOM. PROC. § 101 (McKinney call it substandard or insanitary.’” In National City Envtl., 304 Ill.App.3d 542 1977). (1999) (stating “If a government agency re Goldstein, 13 N.Y.3d at 527 (quoting can decide property ownership solely 58. Id. Kaskel, 306 N.Y. at 80). upon its view of who would put that 59. In re 265 Penn Realty Corp. v. City of 66. In re Goldstein, 13 N.Y.3d at 552. property to more productive or attractive New York, 953 N.Y.S.2d 141, 142 (2012) 67. Id. at 547. use, the inalienable right to own and (noting that “[t]he principal purpose of enjoy property to the exclusion of others EDPL article 2 is to insure that an agency 68. Id. at 552. will pass to a privileged few who does not acquire property without having 69. Id. at 527. constitute society’s elite”). The In re Kaur made a reasoned determination that the appellate court noted that “[i]n New condemnation will serve a valid public 70. In re Uptown Holdings, LLC v. City of York, wherever underutilization has been purpose.”); accord In re Peekskill Heights, New York, 908 N.Y.S.2d 657, 661 (2010) a significant factor in a blight finding, Inc. v. City of Peekskill Common Council, (Catterson, J., concurring) Catterson courts have upheld the finding only in 974 N.Y.S.2d 501, 502 (2013). stated: “the record amply demonstrates connection with other factors such as that the neighborhood in question is not zoning defects rendering the property 60. N.Y. EM. DOM. PROC. § 207(C) (McKinney blighted, that whatever blight exists is unusable or insufficiently sized or 1977). due to the actions of the City and/or configured lots”). In re Kaur, 15 N.Y.3d 61. In re Butler v. Onondaga Cnty. is located far outside the project area, 235 (citations omitted). Legislature, 833 N.Y.S.2d 829, 830 (2007) and that the justifi cation of under- 53. See, e.g., Sunrise Properties, Inc. v. (citing In re Waldo’s Inc. v. Vill. of utilization is nothing but a canard to aid Jamestown Urban Renewal Agency, 614 Johnson City, 74 N.Y.2d 718, 720(1989)); in the transfer of private property to a N.Y.S.2d 841 (1994); In re Dudley v. Town In re Stankevich v. Town of Southold, 815 developer.” Board of Prattsburgh, 872 N.Y.S.2d 614 N.Y.S.2d 225, 226 (2006); In re Kaufmann’s 71. Id. at 660-61. After In re Goldstein and (2009); West 41st Street Realty LLC v. Carousel v. City of Syracuse Indus. In re Kaur, however, he was “compelled New York State Urban Dev. Corp., 744 Agency, 750 N.Y.S.2d 212, 215-16 (2002). to concur with the majority.” On appeal, N.Y.S.2d 121 (2002); J.C. Penney Corp. v. 62. In re Bergen Swamp Pres. Soc’y v. Vill. Judge Smith agreed that no substantial Carousel Center Co., 306 F. Supp. 2d 274, of Bergen, 741 N.Y.S.2d 363, 364 (2002) constitutional issue was presented in the 280 (N.D.N.Y.2004). (quoting In re Jackson v. New York State case because it was controlled by In re 54. In re Byrne v. New York State Offi ce of Urban Dev. Corp., 67 N.Y.2d 400, 425); Goldstein and In re Kaur. Parks, Recreation & Historic Pres., 476 accord In re Kaufmann’s Carousel, 750 72. S. 2898, 2011-2012 Reg. Sess., 234th Sess. N.Y.S.2d 42, 42 (1984). N.Y.S.2d 212, 220 (2002). (N.Y. 2011); S. 1045, 2013-2014 Reg. Sess., 55. In re Jackson v. New York State Urban 63. In re Kaur, 15 N.Y.3d at 253 (citation 236th Sess. (N.Y. 2013). Dev. Corp., 67 N.Y.2d 400, 417 (1986). omitted). 73. Memo on Bill S. 1045 (236th Sess.), 56. First Broad. v. City of Syracuse, 453 64. In re Goldstein, 13 N.Y.3d at 526; see also available at http://open.nysenate.gov/ N.Y.S. 2d 194 (1981). The public hearings In re City of New York, 217 N.Y. 45, 57 legislation/bill/S1045-2013. provision was the most controversial (1916) (stating “[i]t is the established 74. In re Byrne v. New York State Offi ce of feature of the legislation. In re East law by numerous decisions of this Parks, Recreation & Historic Pres., 476 Thirteenth St. Comm. Ass’n. v. New York court that in the exercise of the power N.Y.S.2d 42, 42 (1984) (citing N.Y.C Hous. State Urban Dev. Corp., 84 N.Y.2d 287, of eminent domain the opinion of the Auth. v. Muller, 270 N.Y. 333, 340-43); In 294 (1994). There had been increasing legislature or the tribunal upon which re Long Sault Dev. Co. v. Kennedy, 212 public resistance to some projects, is conferred power to determine the N.Y. 1, 8 (1914); accord In re 225 Front St., accompanied by time-consuming questions of necessity or expediency in Ltd. v. City of Binghamton, 877 N.Y.S.2d litigation, and many viewed the hearing the acquirement of private property for 486, 488 (2009) (quoting In re Aspen Cr. requirement as an additional step to the public use is political, not judicial, in its Estates, Ltd. v. Town of Brookhaven, 12 condemnation process which would nature.”); see also In re GM Components N.Y.3d 735 (2009)). inject further uncertainty and delay in Holdings, LLC v. Town of Lockport the completion of public projects. The Indus. Dev. Agency, 977 N.Y.S.2d 836, 838 Commission recognized the charge (A.D. 4th Dep’t 2013) (stating “[i]t is well Ms. Richards is an Associate that increased public participation settled that the scope of our review of LIDA’s determination is ‘very limited.’”) Counsel for the Offi ce of General could delay or even halt projects, but it Counsel, State University of New believed that the proposed procedures (citing In re City of New York [Grand of notice and hearing could forestall LaFayette Props. LLC], 6 N.Y.3d 540, 546 York. the increasing amount of litigation and (2006), appeal dismissed, 22 N.Y.3d 1165 that the narrow scope of judicial review (2014), leave to appeal denied, 23 N.Y.3d 905 (2014)).

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 19 Does a New York Foreclosure Create an Opportunity for a Tenant to Walk Away from Its Lease Obligations? (Answer: No) By Louis J. Hait

Does a tenant of space in a New surrendered its leased premises was doctrine, having its origin in York City building that is the subject not liable for rent to the purchaser at the incidents of the feudal of a mortgage foreclosure action con- foreclosure in the absence of an attorn- law, still persist. Indeed tinue to be bound by its lease follow- ment by such tenant to the purchaser.4 that they do is recognized ing the foreclosure sale of the property in section 224 of the Real As discussed below, however, where (i) the lease was subordinate to Property Law. But section later decisions and statutes in New the foreclosed mortgage, (ii) the tenant 223, following early English York treat a mortgage foreclosure sale was not named as a defendant in the statutes, sweeps away all as an assignment by operation of law foreclosure, (iii) the lease contained learning on the subject [of of the lease to the purchaser at foreclo- no attornment provision and (iv) attornment] where the rever- sure (unless the lease is subordinate to the tenant had not entered into any sion of leased real property the mortgage and the tenant is named agreement obligating it to attorn to a is granted. It is entirely clear in the foreclosure action). purchaser at foreclosure? that if a lease is prior to a mortgage a sale under the su- What if the lease is by its terms Later Cases and Statutes Do Not latter is but a sale of the re- perior to the lien of the mortgage being Require Attornment version…we think that such foreclosed but an express attornment The consent of a tenant to its a sale as was here made was provision is similarly absent? landlord’s transfer of the reversion a grant of the reversion with- New York1 statutes and case law is no longer necessary in New York in the meaning of section support the conclusion that, even due to New York Real Property Law 223. It was a grant of what absent any agreement by the tenant to (“RPL”) § 248 and its predecessor interest the mortgagor had attorn, a tenant continues to be bound statutes.5 Also, under RPL § 223 the in the property at the time by its lease following a mortgage transfer of the reversion, whether with the mortgage was given, less foreclosure sale of the real estate in or without the consent of the tenant, the leased estate—the grant which the tenant’s demised premises is a transfer of the lease and the rights of what was left after the are located, so long as either (i) the and obligations thereunder.6 leased estate was subtracted. lease was subordinate to the lien of the It is precisely the same so The Court of Appeals in Metro- mortgage and the mortgagee did not far as the estate granted was politan Life Ins. Co. v. Childs Co.,7 citing name the tenant as a defendant in the concerned as if the lease had RPL § 223, found that if the tenant 9 foreclosure action, or (ii) the lease was been prior to the mortgage. under a subordinate lease is not a superior to the lien of the mortgage. party to the mortgage foreclosure The Court of Appeals in Metropoli- action, then following the foreclosure tan cited with approval Commonwealth Historical Background of sale the tenant is obligated to pay rent Mortg. Co. v. De Waltoff,10 in which the Attornment to the purchaser at foreclosure, even Appellate Division, First Department, Under feudal and common law, in the absence of an attornment.8 In citing RPL § 223, held that: when the reversion upon an estate the words of the Court of Appeals in The purchaser at a foreclo- for years was transferred, an “attorn- Metropolitan: sure sale of real property ment” by a tenant for years to the If, on the contrary, [the acquires all the right, title transferee was necessary in order to tenant] is not a party to and interest of the mort- create a landlord-tenant relationship the [foreclosure] action gagor, subject to such valid between the transferee and the tenant his rights are not affected. liens and incumbrances as for years.2 Absent such attornment, have not been cut off by the the tenant was not bound to the trans- There is never an eviction. foreclosure.… If the [tenant] feree of the reversion.3 Until the [foreclosure] sale he must pay his landlord. had been made a party to Indeed, some century-old cases in Afterwards, the purchaser the foreclosure action, his New York applied this common law [at foreclosure]. As to the lease being subsequent and rule to hold that following the fore- latter there is no necessity of subordinate to the mortgage, closure of a prior mortgage, a tenant attornment. It may well be would have been annulled of the foreclosed property who had that some remnants of that and his continuance in pos-

20 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 session would have been real property where (i) the lease was The full text of RPL § 223 is set forth in unlawful. In that case the superior to the lien of the foreclosed Appendix B hereto. relation of landlord and mortgage or (ii) the lease was subor- 7. 230 N.Y. 285. tenant would not have been dinate to the foreclosed mortgage and 8. Id. at 289-290. In its holding, the Court of Appeals cited with approval, created between him and the tenant was not named as a defen- Commonwealth Mortg. Co. v. De Waltoff, the purchaser (unless a new dant in the foreclosure. 119 N.Y.S. 781 (1st Dep’t 1909), discussed agreement were made)[.]… below, and without much explanation, Here, however, the [tenant] Endnotes distinguished the older case of Wacht, supra note 4. Id. However, there does not was not made a party to the 1. This article is limited to New York law and appear to be any basis to distinguish the foreclosure action, and his does not address the laws of any other facts of Metro. from those in Wacht, and lease is unaffected thereby. state. Metro. would appear to be a complete But the purchaser, succeed- 2. Continental Ins. Co. v. New York & H.R. rejection of Wacht. See infra note 11 and Co., 187 N.Y. 225, 237-38 (1907). accompanying text (discussing legislative ing to all the title and rights history of RPL § 224). of the original landlord, 3. O’Donnell v. McIntyre, 37 Hun 623, 625 (N.Y. Sup. Ct. Gen. Term 5th Dep’t 9. Id. at 296-97. This cited portion of Metro. becomes the landlord by 1885) (explaining that the concept of takes for granted that, in the case of a lease operation of law, with all attornment had its origin in the feudal that is superior to the foreclosed mortgage, the rights and remedies of system and bound both the landlord and the relationship of landlord and tenant the original landlord.11 the tenant such that neither could, without will exist between the tenant and the the consent of the other, substitute purchaser at the foreclosure without any The legislative history12 for an another in its place, the reason being need for attornment. that the relation of lord and vassal was 10. Supra note 8. amendment to RPL § 224, enacted that of protection and fealty and so the 11. Id. (emphasis added). See Ballesteros v. in 1941, understands Metropolitan as relation was in some degree personal), Rosello, 703 N.Y.S.2d 686, 688 (N.Y. Civ. aff’d, 116 N.Y. 663, 22 N.E. 1134 (1889); rejecting both Wacht v. Erskine and Ct. 1999) (citing Commonwealth Mortg. 13 see also NEW YORK STATE LAW REVISION Sprague Nat’l Bank v. Erie R.R. Co., Co. v. De Waltoff, 119 N.Y.S. 781 (1st Dep’t COMMISSION, REPORT OF THE LAW REVISION and states that: 1909)); see also United Welfare Fund-Sec. COMMISSION, RECOMMENDATION OF Div. v. LAP Realty Corp., 2002 N.Y. Slip THE LAW REVISION COMMISSION TO THE Both Wacht v. Erskine and Op. 40271(U) (Sup. Ct. 2002). LEGISLATURE RELATING TO ATTORNMENT BY Sprague National Bank v. A TENANT OF MORTGAGED PROPERTY UPON 12. See RECOMMENDATION OF THE LAW Erie R.R. Co., were rejected, FORECLOSURE OF THE MORTGAGE, 191-94 REVISION COMMISSION TO THE LEGISLATURE however, by the Court of (1941) (introducing an Act to amend New RELATING TO ATTORNMENT BY A TENANT OF York Real Property Law § 224). The full MORTGAGED PROPERTY UPON FORECLOSURE Appeals in Metropolitan text of Real Property Law § 224 is set forth OF THE MORTGAGE, supra note 3. Life Insurance Co. v. Childs in Appendix C hereto. 13. Sprague Nat. Bank v. Erie R.R. Co., 48 Co., and it would seem to be 4. See, e.g., Wacht v. Erskine, 113 N.Y.S. 130, N.Y.S. 65 (N.Y. App. Div. 1897), cited with settled that the relationship 130-31 (Sup. Ct. App. T. 1908) (absent approval in Wacht v. Erskine, 61 Misc. 96, of landlord and tenant exists an attornment, no privity of estate or of 98, 113 N.Y.S. 130 (App. Term 1908). without attornment between contract exists between a tenant and a 14. RECOMMENDATION OF THE LAW REVISION purchaser at the foreclosure of a superior COMMISSION TO THE LEGISLATURE a purchaser on mortgage mortgage, and as a result there is no basis RELATING TO ATTORNMENT BY A TENANT OF foreclosure and a tenant of upon which the purchaser can maintain MORTGAGED PROPERTY UPON FORECLOSURE the mortgagor under a lease an action against the tenant for unpaid OF THE MORTGAGE, supra note 3, at 207. subsequent to the mortgage, rent); Simers v. Saltus, 3 Denio 214, 219 (N.Y. Sup. Ct. 1846) (per curiam). where the tenant was not a Louis J. Hait is a partner in the 5. In re O’Donnell, 240 N.Y. 99, 105 (1925) New York offi ce of Kaye Scholer LLP. party to the foreclosure at (stating that under RPL § 248, consent of the time of sale.14 the tenant to the transfer of the reversion His practice covers a broad range is no longer necessary). The full text of of commercial real estate, with an Conclusion RPL § 248 is set forth in Appendix A hereto. emphasis on the representation of 6. Id. (stating that under RPL § 223, “[t]he capital providers at all levels of the By dint of RPL §§ 223 and 248 as transfer of the reversion, whether with capital stack, including represent- interpreted both by the legislative his- the consent of the tenant or without it, is ing banks and other institutional tory to the 1941 amendment to RPL § a transfer of the lease and of its rights and obligations”). Compare id. with O’Donnell lenders in originating structured 224 and by the New York Court of Ap- v. McIntyre, 118 N.Y. 156, 162-163 (N.Y. mortgage and mezzanine debt, peals in Metropolitan, a tenant of New 1890) (citing Becker v. Howard, 66 N.Y. negotiating intercreditor and co- York real property that is the subject 5 (1876)) (distinguishing the situation lender agreements, and acquiring of a foreclosure action will, notwith- where the real property is sold in a tax portfolios of performing and non- sale and fi nding that, in such a case, the standing the lack of any agreement purchaser at the tax sale is not the grantee performing loans; representing on the part of the tenant to attorn to of the prior owner, but of the State, and hedge funds, opportunity funds and the purchaser at foreclosure (whether accordingly, the purchaser is a stranger pension plans providing mezzanine, in the lease instrument or otherwise), to the tenant (rather than the grantee or preferred equity and common equity assignee of the prior owner) and the lease investments; and construction lend- continue to be bound by its lease is terminated (i.e., none of the provisions following the foreclosure sale of the of RPL §§ 223 or 248 is applicable)). ing. He can be reached at louis.hait@ kayescholer.com.

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 21 Appendix A RPL § 248. Effect of conveyance where property is leased An attornment to a grantee is not requisite to the validity of a conveyance of real property occupied by a tenant, or of the rents or profi ts thereof, or any other interest therein. But the payment of rent to a grantor, by his tenant, before notice of the conveyance, binds the grantee; and the tenant is not liable to such grantee, before such notice, for the breach of any condition of the lease.

Appendix B RPL § 223. Rights where property or lease is transferred The grantee of leased real property , or of a reversion thereof, or of any rent, the devisee or assignee of the lessor of such a lease, or the heir or personal representative of either of them, has the same remedies, by entry, action or otherwise, for the nonperformance of any agreement contained in the assigned lease for the recovery of rent, for the doing of any waste, or for other cause of forfeiture as his grantor or lessor had, or would have had, if the reversion had remained in him. A lessee of real property, his assignee or personal representative, has the same remedy against the lessor, his grantee or assignee, or the representative of either, for the breach of an agreement contained in the lease, that the lessee might have had against his immediate lessor, except a covenant against encumbrances or relating to the title or possession of the premises leased. This section applies as well to a grant or lease in fee, reserving rent, as to a lease for life or for years; but not to a deed of conveyance in fee, made before the ninth day of April, eighteen hundred and fi ve, or after the fourteenth day of April, eighteen hundred and sixty. § 223-a. Remedies of lessee when possession is not delivered In the absence of an express provision to the contrary, there shall be implied in every lease of real property a condi- tion that the lessor will deliver possession at the beginning of the term. In the event of breach of such implied condition the lessee shall have the right to rescind the lease and to recover the consideration paid. Such right shall not be deemed inconsistent with any right of action he may have to recover damages. § 223-b. Retaliation by landlord against tenant 1. No landlord of premises or units to which this section is applicable shall serve a notice to quit upon any tenant or commence any action to recover real property or summary proceeding to recover possession of real property in re- taliation for: a. A good faith complaint, by or in behalf of the tenant, to a governmental authority of the landlord’s alleged violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or fi rst degree; or b. Actions taken in good faith, by or in behalf of the tenant, to secure or enforce any rights under the lease or rental agreement, under section two hundred thirty-fi ve-b of this chapter, or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or fi rst degree; or c. The tenant’s participation in the activities of a tenant’s organization. 2. No landlord or premises or units to which this section is applicable shall substantially alter the terms of the tenancy in retaliation for any actions set forth in paragraphs a, b, and c of subdivision one of this section. Substantial altera- tion shall include, but is not limited to, the refusal to continue a tenancy of the tenant or, upon expiration of the ten- ant’s lease, to renew the lease or offer a new lease; provided, however, that a landlord shall not be required under this section to offer a new lease or a lease renewal for a term greater than one year and after such extension of a tenancy for one year shall not be required to further extend or continue such tenancy. 3. A landlord shall be subject to a civil action for damages and other appropriate relief, including injunctive and other equitable remedies, as may be determined by a court of competent jurisdiction in any case in which the landlord has violated the provisions of this section. 4. In any action to recover real property or summary proceeding to recover possession of real property, judgment shall be entered for the tenant if the court fi nds that the landlord is acting in retaliation for any action set forth in para-

22 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 graphs a, b, and c of subdivision one of this section and further fi nds that the landlord would not otherwise have commenced such action or proceeding. Retaliation shall be asserted as an affi rmative defense in such action or pro- ceeding. The tenant shall not be relieved of the obligation to pay any rent for which he is otherwise liable. 5. In an action or proceeding instituted against a tenant of premises or a unit to which this section is applicable, a rebut- table presumption that the landlord is acting in retaliation shall be created if the tenant establishes that the landlord served a notice to quit, or instituted an action or proceeding to recover possession, or attempted to substantially alter the terms of the tenancy, within six months after: a. A good faith complaint was made, by or in behalf of the tenant, to a governmental authority of the landlord’s violation of any health or safety law, regulation, code, or ordinance, or any law or regulation which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or fi rst degree; or b. The tenant in good faith commenced an action or proceeding in a court or administrative body of competent ju- risdiction to secure or enforce against the landlord or his agents any rights under the lease or rental agreement, under section two hundred thirty-fi ve-b of this chapter, or under any other law of the state of New York, or of its governmental subdivisions, or of the United States which has as its objective the regulation of premises used for dwelling purposes or which pertains to the offense of rent gouging in the third, second or fi rst degree. c. Judgment under subdivision three or four of this section was entered for the tenant in a previous action be- tween the parties; or an inspection was made, an order was entered, or other action was taken as a result of a complaint or act described in paragraph a or b of this subdivision. But the presumption shall not apply in an action or proceeding based on the violation by the tenant of the terms and conditions of the lease or rental agreement, including nonpayment of the agreed-upon rent. The effect of the presumption shall be to require the landlord to provide a credible explanation of a non-retal- iatory motive for his acts. Such an explanation shall overcome and remove the presumption unless the tenant disproves it by a preponderance of the evidence. 5-a. Any lease provision which seeks to assess a fee, penalty or dollar charge, in addition to the stated rent, against a tenant because such tenant fi les a bona fi de complaint with a building code offi cer regarding the condition of such tenant’s leased premises shall be null and void as being against public policy. A landlord who seeks to enforce such a fee, penalty or charge shall be liable to the tenant for triple the amount of such fee, penalty or charge. 6. This section shall apply to all rental residential premises except owner-occupied dwellings with less than four units. However, its provisions shall not be given effect in any case in which it is established that the condition from which the complaint or action arose was caused by the tenant, a member of the tenant’s household, or a guest of the tenant. Nor shall it apply in a case where a tenancy was terminated pursuant to the terms of a lease as a result of a bona fi de transfer of ownership.

Appendix C RPL § 224. Attornment by Tenant The attornment of a tenant to a stranger is absolutely void and does not in any way affect the possession of the land- lord unless made either: 1. With the consent of the landlord; or, 2. Pursuant to or in consequence of a judgment, order, or decree of a court of competent jurisdiction; or 3. To a purchaser at foreclosure sale.

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 23 Apartment Building Residents Get Dogged About Acquiring Emotional Support Pets By Virginia Trunkes

I. Introduction The legal bases supporting some The FHA makes it unlawful “[t]o residents’ right to an emotional sup- discriminate against any person in the Residents of multi-family hous- port dog are varied and complex, terms, conditions, or privileges of sale ing developments seem to be litigat- and landlords and boards need to or rental of a dwelling, or in the pro- ing at an ever-increasing rate over appreciate and be familiar with vision of services or facilities in con- “emotional assistance” or “support” them. Residents with recognized dis- nection with such dwelling, because animals. Indeed, a common pet peeve abilities should likewise understand of a handicap2 of…(A) that person; or of residents in multiple dwellings is their legal rights, as well as the limits (B) a person residing in or intending their close proximity to neighbors thereto. to reside in that dwelling after it is who live incompatible lifestyles, so sold, rented, or made available; or such as cohabitation with an animal. Recently there has been a rising (C) any person associated with that Perhaps still desiring to be “part of a trend of requests for waivers of no- person.”3 Discrimination prohibited pack,” often people choose apartment pet rules for the purpose of “emo- by the FHA includes the refusal to buildings, whether rental, coopera- tional support,” “companionship” make “reasonable accommodations tive or condominium, having certain or “comfort,” resulting in increased in rules, policies, practices or services “house rules” that refl ect their prefer- lawsuits and administrative agency when such accommodations may be ences. A leading differentiator among claims involving housing discrimina- necessary to afford [a person with a multi-residence buildings is the pet tion. Stepping in with a recent action “handicap”] an equal opportunity to policy, whether it be “pet friendly,” on behalf of tenant-shareholders who use and enjoy a dwelling.”4 To pre- “pets upon approval,” “pets weigh- were denied permission to reside vail on a reasonable-accommodation ing 40 pounds or less,” “no dogs” or with a dog, which provided emotion- claim under the FHA, a plaintiff is “no pets.” Many residents rent or buy al assistance, the federal government required to show that “(1) [he or she into a building relying on pet policies, has become aggressive in advocating (or a person associated with him or and their preferences can fall on both for the rights of disabled residents. her)] suffers from a handicap as de- ends of the spectrum. At the same time, suspicions of exag- fi ned by the FHA; (2) defendant knew gerated or disingenuous applications A fast-growing trend, both or reasonably should have known of for both service dogs and emotional in New York and throughout the the plaintiff’s handicap; (3) accom- support animals have increased as country, is the practice of residents modation of the handicap ‘may be well. Consequently, for landlords and claiming an exception to limited or necessary’ to afford plaintiff an equal boards, both granting and rejecting no-pet policies by asserting the need opportunity to use and enjoy the applications for emotional support for their pet, usually a dog, because dwelling; and (4) defendants refused animals have practical effects requir- of its accompanying emotional sup- to make such accommodation.”5 ing thorough consideration. For ap- port. Some even sneak in the dog, plicants, submitting the appropriate Traditionally, the FHA has been and then, upon being caught, assert paperwork at the outset should re- invoked in cases where people with their new realization that they need duce delays and/or rejections associ- physical disabilities require service the dog because they enjoyed a more ated with dubious requests. animals. A “service animal” is not de- positive residential experience once fi ned by the FHA or the accompany- they cohabited with the dog. II. The Fair Housing Act ing regulations. Rather, it is defi ned But upon discovery of the unau- Throughout the country, resi- in the Americans with Disabilities thorized dog, landlords and govern- dents claiming an exception to no-pet Act of 1990 (ADA), which addresses ing boards in limited or no-pet build- policies have relied on the federal disability discrimination in multiple ings cannot just let sleeping dogs lie. Fair Housing Act (FHA), enacted as contexts including public housing, to They have a responsibility to the oth- part of the Civil Rights Act of 1968, as include “any guide dog, or other ani- er residents not to let their building amended in 1988.1 The FHA and its mal individually trained to do work go to the dogs. Those who forgo this promulgated regulations constitute or perform tasks for the benefi t of an obligation may be considered to have the prime source of protection against individual with a disability.…”6 There “dogged it,” likely to face complaints discrimination, which enables resi- are many ways in which service ani- by pet-free owners reiterating the dents to enjoy and use their multiple mals, usually dogs, can assist people, building’s limited or no-pet policy. occupancy dwellings. e.g., Guide Dog or Seeing-Eye Dog,

24 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 Mobility Support Dog, Hearing Dog, is “regarded as having such an im- record of such impairment Seizure Alert Dog and Diabetic Alert pairment.”13 “Substantially limited” or (c) a condition regarded Dog. The Department of Housing and is defi ned as either: “(i) [u]nable to by others as such an Urban Development (HUD), which is perform a major life activity that the impairment.19 charged with administering the FHA, average person in the general popula- “Fairly read, the [NYSHRL] cov- uses as an example in its regulation tion can perform; or (ii) [s]ignifi cantly ers a range of conditions varying in entitled “Reasonable accommoda- restricted as to the condition, manner degree from those involving a loss of tions”7 a blind applicant for rental or duration under which an individu- a bodily function to those which are housing who needs a seeing-eye dog al can perform a particular major life merely diagnosable medical anoma- to have an equal opportunity to use activity as compared to the condition, lies which impair bodily integrity and enjoy a dwelling. manner or duration under which the and thus may lead to more serious average person in the general popula- conditions in the future.”20 “An indi- A qualifying “service animal” tion can perform that same major life vidual can thus be disabled under the must be trained to work for a dis- activity.”14 In determining whether 8 [NYSHRL]…if his or her impairment abled individual, but there is no an individual is substantially limited is demonstrable by medically accept- specifi ed amount or type of training in a major life activity, it is impor- 9 ed techniques; it is not required that that an animal must receive, or type tant to consider: “(i) The nature and the impairment substantially limit or amount of work a service animal severity of the impairment; (ii) The 10 that individual’s normal activities.”21 must provide. Rather, the relevant duration or expected duration of the In other words, under the NYSHRL, question is whether the animal helps impairment; and (iii) The permanent if the claimed disability does not the disabled person perform tasks to or long term impact, or the expected 11 “substantially limit” major life activi- ameliorate the ADA disability. permanent or long term impact of ties and/or cause the loss of a bodily or resulting from the impairment.”15 Requests for service animals gen- function, then it should have a name, Major life activities include “[c]aring erally are not controversial: the issue accepted by the relevant professional for oneself, performing manual tasks, of whether the person is physically community.22 “disabled” is usually straightforward. seeing, hearing, eating, sleeping, And given the lack of specifi c param- walking, standing, sitting, reaching, Note, then, that FHA regula- eters for the requisite training, it is lifting, bending, speaking, breath- tions interpret “physical or mental fairly simple to produce evidence that ing, learning, reading, concentrating, impairment” to include any “mental the subject animal has received train- thinking, communicating, interacting or psychological disorder,” such as ing and is certifi ed to accomplish the with others, and working.”16 Follow- “emotional illness,”23 and that some tasks needed for the person to reside ing the ADA Amendment Act of 2008 courts construe “mental impairment” independently in a home. (“ADAAA”), “major life activities no under the FHA as a generic term that longer need to be of “central impor- incorporates multiple diagnoses….”24 The less common, but increasing- tance’” to most people’s daily lives.17 Thus, under the FHA, “there is no ly growing, occurrence is a resident’s specifi c diagnosis needed to establish Although the section of the New request for an “emotional support” or a disability under the [FHA].”25 In York State law requiring the provi- “emotional assistance” animal, also such a case, however, under both the sion of reasonable accommodations usually a dog. This type of request FHA and the NYSHRL, the resident to disabled renters is largely similar prompts the inquiry into whether will need to demonstrate that the im- to the analogous provision of the the resident (or a person associated pairment substantially limits a major FHA,18 under the New York State Hu- with the resident) has a handicap or life activity, or results in the loss of a man Rights Law (N.Y. Executive Law disability within the meaning of the normal bodily function. FHA—without the benefi t of visible §§ 291 et seq.) (NYSHRL), the term evidence as would be found with a “disability” is more broadly defi ned. IV. Accommodating Individuals 12 physical disability. Disability means: with Disabilities So They III. Defi nition of “Disability” a physical, mental, or Have an Equal Opportunity under the FHA and New medical impairment to Use and Enjoy a resulting from anatomi- Dwelling York State’s Counterpart cal, physiological, genetic, Under the FHA, in order to dem- An individual has a handicap or neurological condi- onstrate the need for a reasonable ac- or disability, for the purposes of the tions which prevents the commodation in housing, applicants FHA, if he or she has (a) “a physical exercise of a normal bodily “must show that, but for the accom- or mental impairment which sub- function or is demonstra- modation, they likely will be denied stantially limits one or more of such ble by medically accepted an equal opportunity to enjoy the person’s major life activities,” (b) “a clinical or laboratory diag- housing of their choice.”26 NYSHRL § record of such impairment,” or (c) nostic techniques or (b) a

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 25 296(18)(2) imposes a similar require- V. Requisite Documentation age receives Supplemental ment that a person with a disability Upon a landlord’s or board’s Security Income or Social requesting an accommodation must receipt of a request from a disabled Security Disability Insur- show that “such accommodation may person for permission to keep a ser- ance benefi ts or a credible be necessary to afford said person vice animal or an emotional support statement by the indi- with a disability equal opportunity to vidual), a doctor or other 27 animal, pursuant to the FHA, “it is use and enjoy a dwelling....” So both reasonable to require the opinion of medical professional, a statutes focus on whether residing a physician who is knowledgeable peer support group, a non- with an animal may likely improve a about the subject disability and the medical service agency, or person’s quality of life at home. That manner in which a service dog can a reliable third party who said, interestingly, although the state ameliorate the effects of the disabil- is in a position to know statute modifi es the term “necessary” ity.”33 Additionally, on occasion, lay- about the individual’s dis- with the phrase “may be,” the courts persons, while not competent to offer ability may also provide interpreting the NYSHRL typically specifi c diagnoses, are considered verifi cation of a disability. require an applicant to demonstrate qualifi ed to testify generally as to In most cases, an individ- necessity when evaluating whether whether a person is suffering from a ual’s medical records or a non-pet building should make an mental impairment under the FHA.34 detailed information about exception for one of its residents—not the nature of a person’s whether there “may be” a necessity.28 HUD and the Department of Jus- disability is not necessary tice (DOJ) have provided guidance in for this inquiry. Whether a requested accom- their “Joint Statement on Reasonable modation is required is “highly fact- Accommodations under the FHA” Once a housing provider specifi c, requiring case-by-case deter- has established that a 29 dated May 17, 2004 (“Joint State- mination.” Additionally, the nature ment”), as to what kinds of informa- person meets the Act’s of the accommodation is framed by tion a housing provider may request defi nition of disability, the the nature of the particular handicap provider’s request for doc- 30 from a person with a disability who or disability alleged. has sought an accommodation if the umentation should seek alleged disability is not obvious: only the information that Effectively, then, to demonstrate is necessary to evaluate if one’s entitlement to an emotional [I]n response to a request the reasonable accommo- support animal, an individual may for a reasonable accommo- dation is needed because demonstrate that the prohibition on dation, a housing provider of a disability.35 housing an emotional support animal may request reliable dis- in the apartment “causes the denial” ability-related information Notwithstanding what the Joint of the individual’s right to equal “use Statement suggests, courts inter- 31 that (1) is necessary to ver- and enjoyment” of that apartment, ify that the person meets preting the FHA and reasonable ac- or even merely that the animal en- the Act’s defi nition of commodation requests based on an ables one to better use and enjoy the disability (i.e., has a physi- alleged mental disability have gener- apartment. The focus is not on the cal or mental impairment ally placed great value on, and seem- animal, since unlike with a service that substantially limits ingly required, documentation from animal, an emotional support animal one or more major life ac- a medical or therapeutic professional need not undergo any training what- tivities), (2) describes the substantiating the claim of disability soever. As one court has reasoned: “In needed accommodation, and/or that the accommodation is some instances, a plaintiff may have and (3) shows the relation- necessary to alleviate the disability. a disability that requires an assistance ship between the person’s Typically, the treating therapist de- animal with some type of training; disability and the need scribes the nature of the condition, in other instances, it may be possible how it has been treated and with 32 for the requested accom- that no training is necessary.” Thus, modation. Depending on the what medications, if any, and how the relevant inquiry for a request for the condition has impeded the resi- individual’s circumstances, 36 an emotional support animal centers information verifying that dent’s functioning. not on the attributes of the animal the person meets the Act’ s The same seems to be true for but rather on the characteristics of the defi nition of disability can New York State courts interpreting individual, and how the individual usually be provided by the the NYSHRL.37 The outcome in these benefi ts from the presence of the individual himself or her- cases, in which the courts seemingly animal. self (e.g., proof that an in- ignore the modifi er “may be” to the dividual under 65 years of word “necessary” in the statute’s

26 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 wording, and require documentation fi nancial and administrative burden “HEPA” air purifi er or other items from a professional substantiating on the housing provider or (2) it necessary to reduce the resultant al- that the resident needs the accom- would fundamentally alter the nature lergic reactions. modation to alleviate the disability, of the provider’s operations.”42 A may make sense in instances where fundamental alteration is a modifi ca- VII. The Future of Emotional the resident did not demonstrate that tion that alters the essential nature of Support Dog Applications the impairment substantially limited a provider’s operations.43 HUD has and Landlords’/Boards’ a major life activity, or resulted in the already pre-determined that permit- Conundrum loss of a normal bodily function. Pre- ting an animal for a qualifi ed dis- As landlords and boards grapple sumably, in contrast, a resident with abled person does not fundamentally with an increasing infl ux of emo- a severe, undisputed disability from alter the essential nature of a housing tional support dog applications, the which it can be inferred that an ani- development/apartment building’s DOJ, on behalf of HUD, has taken a mal would ameliorate the symptoms operations by promulgating a specifi c particularly proactive approach in would have a lesser burden in dem- regulation stating that it is unlawful support of applicants for emotional onstrating the “need” for the animal. for a housing provider with a no-pets support animals. Its recent lawsuit policy to refuse to permit a blind per- against a cooperative is especially VI. Landlord’s and Board’s son to live in a dwelling unit with a notable because it succeeded two Obligations to Other seeing-eye dog.44 state courts’ decisions upholding Residents and Applicants’ That, of course, does not mean the cooperative’s rejection of those Obligations the emotional support animal may same applications. In 2012, East River Courts agree that a landlord/ have full rein of the premises. A land- Housing Corp., a private cooperative board may request, and indeed may lord or board is within its rights to in Manhattan (“Cooperative”), com- have a duty to request, additional and, for the benefi t of its other resi- menced two separate legal proceed- information from the applicant if dents, should consider placing limits ings against tenant-shareholders for the initial paperwork is incomplete. on and set parameters for emotional harboring dogs without permission. Landlords need to enforce the same support animals. Common examples During the pendency of the proceed- lease provisions that govern all of its include mandating the use of a leash ings, each tenant-shareholder fi led tenants. A tenant’s harboring a dog in in common areas, the use of a freight a discrimination complaint with an apartment contrary to a prohibi- elevator, the use of a separate en- HUD. In late 2013, the state courts tion in the lease is considered a sub- trance to and exit from the building, separately found against the tenant- stantial violation of the lease.38 Simi- and the use of a separate outdoor shareholders and, respectively, or- larly, cooperative and condominium path. dered the removal of the dog or face boards have fi duciary duties to their eviction, and, where the second ten- tenant-shareholders and unit owners, A resident claiming a disability ant-shareholder voluntarily removed respectively.39 who protests these types of limita- the dog, enforced a proprietary lease tions has the burden of demonstrat- provision entitling the Cooperative to 45 Thus, landlords and boards are ing why they are not reasonable. recover its attorneys’ fees caused by authorized to and should request That said, extra security deposits and the breach of the proprietary lease.49 additional documents reasonably fees for the retention of an emotional In both matters, the courts rejected 46 necessary to make a meaningful re- assistance animal are unlawful. Nor the tenant-shareholders’ claims of view and an informed decision about may an application to retain an emo- disability of depression, which they whether the animal is necessary to tional assistance animal be rejected 40 belatedly realized was alleviated by ameliorate the disability. Once they because of the animal’s breed, size, or the dog’s presence and concomitant 47 receive qualifying-disability informa- weight. However, if the landlord/ emotional support. tion, nexus information, or informa- board’s practice is to assess its resi- tion describing the needed accom- dents for any damage they cause to In the meantime, while the state modation, any further requests are the premises, it may likewise charge court proceedings were pending, unnecessary—and at some point are the tenant/shareholder/unit owner HUD issued charges of discrimina- inappropriately intrusive.41 for the cost of repairing any damage tion, charging the Cooperative with caused by the emotional assistance engaging in discriminatory housing If an applicant can sustain that animal.48 Presumably, then, if an practices in violation of the FHA. burden, there is no real argument emotional support animal resides Notwithstanding the determina- supporting a denial of a pet request next door to a resident allergic to the tions in the state court proceedings, on the ground that the request can- animal, the resident with the animal in December 2013, as a result of the not be reasonably accommodated. would be obligated to pay for allergy- HUD charges, the DOJ commenced An accommodation is not reasonable reduction mechanisms such as a a federal action against the Coopera- only “if (1) it would impose an undue

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 27 tive on behalf of those and a third dogs in view of a perceived grow- 5. Ayyad-Ramallo v. Marine Terrace Assocs. tenant-shareholder, seeking declara- ing trend of fraudulent applications. LLC, 18, 2014 WL 2993448, *5 (E.D.N.Y. 50 May 30, 2014) (citation omitted); see tory, injunctive, and monetary relief. The easiest and fi rst step in avoiding Echeverria v. Krystie Manor, LP, 2009 WL The DOJ asserts that the Cooperative, or defending against litigation is for 857629, *7 (E.D.N.Y. Mar. 30, 2009); see which permits dogs only upon board landlords and boards to implement also Hevner v. Vill. E. Towers, Inc., 2011 approval, but without setting forth an exception within a pet policy for WL 666340 (S.D.N.Y. Feb. 7, 2011). any parameters, lacks a written or animals assisting persons with dis- 6. See 28 C.F.R. § 36.104. established policy or procedures for abilities, set forth a procedure for 7. 24 C.F.R. § 100.204(b), Example 1. providing reasonable accommoda- requesting such an exception and 8. See Access Now, Inc. v. Town of Jasper, tions for individuals who require apply the policy and procedure con- Tenn., 268 F. Supp. 2d 973, 980 (E.D. Tenn. service or support animals because sistently. Being mindful of the hous- 2003). of a disability. Currently, according to ing discrimination laws and knowing 9. Id. (“the issue of whether the horse is a the Southern District Court of New which documentation is appropriate service animal does not turn on the type and amount of training”); see also Green v. York’s docket’s website, the parties and adequate to support an exception Hous. Auth. of Clackamas Cty., 994 F.Supp. are exchanging discovery and the to the policy is the next best step—for 1253, 1256 (D. Oregon 1998) (“[t]here is Cooperative has moved for partial applicants as well to expedite approv- no requirement in any statute that an summary judgment, for severance of als of their submissions. Finally, for assistance animal be trained by a certifi ed trainer”); see also Bronk v. Ineichen, 54 F.3d the causes of action as they relate to all interested parties, keeping an eye 425, 430-431 (7th Cir. 1995). the individual underlying complain- on the DOJ’s litigation against East 10. Access Now, Inc., 268 F.Supp.2d at 980. ants and to dismiss one of the causes River Housing Corp. and any other 11. See id.; Bronk, 54 F.3d at 431 (focusing of action, and the motion has not been similar lawsuits will be instrumental on the degree to which the purported fully briefed.51 in better understanding the relevant service animal “aids the [person] in criteria of emotional support dog ap- coping with their disability”); Vaughn v. This action suggests that in the plications which will be considered Rent-A-Center, Inc., 2009 U.S. Dist. LEXIS 20747, 29-30, 2009 WL 723166 (S.D. Ohio federal government’s view, tenants dispositive. (including tenant-shareholders) 2009). whose mental health symptoms im- 12. An emotional support animal is prove after they have harbored dogs Endnotes distinguishable from a psychiatric service animal (PSA), as the latter is regarded without seeking advance permission 1. Title VIII of the Civil Rights Act of as a service animal for purposes of the may qualify as having a “disability” 1968 (Fair Housing Act) prohibited ADA. A PSA’s primary function is not discrimination in the sale, rental and to provide emotional support, but to mandating a “reasonable accommo- fi nancing of dwellings based on race, dation,” if they can document that perform tasks which enable its handler to color, religion, sex or national origin, fully function, and works in distracting they have a mental health condition and was amended in 1988 by the Fair public environments to mitigate the with symptoms that improved fol- Housing Amendments Act, which, inter handler’s psychiatric disability, not just alia, expanded the coverage of the Fair in the handler’s home. See U.S. Dep’t of lowing the acquisition of the dog. It Housing Act to prohibit discrimination also indicates that, while state courts Justice, Nondiscrimination on the Basis of based on disability. Disability in State and Local Government may look skeptically on the claims of 2. Though antiquated, “handicap” was the Services, 75 Fed. Reg. 56164, at 56193 tenants who belatedly assert a disabil- commonly accepted term in 1968. It has (Sept. 15, 2010) (to be codifi ed at 28 ity upon being caught residing with since been generally substituted with the C.F.R. pt. 35, app. A); Nondiscrimination a dog, a pet policy which fails to set more modern term “disability.” on the Basis of Disability by Public Accommodations and in Commercial 3. 42 U.S.C. § 3604(f)(2). forth an exception and/or procedures Facilities, 75 Fed. Reg. 56236, 56267 (Sept. for providing reasonable accommo- 4. 42 U.S.C. § 3604(f)(3)(B). The FHA’s 15, 2010) (to be codifi ed at 28 C.F.R. pt. dations for disabled residents may defi nition of “dwelling” appears to cover 36, app. A). “second” and “weekend” homes as 13. 42 U.S.C.A. § 3602(h) (emphasis added). trigger claims fi led with HUD—and well. See, e.g., United States v. Columbus even lawsuits by the United States Country Club, 915 F.2d 877, 881 (3d 14. 29 C.F.R. § 1630.2(j)(1). See Amador v. government. Cir. 1990) (holding that country club Macy’s East-Herald Square, No. 12 CV. summer bungalows which could be 4884 MHD, 2014 WL 5059799, at *16 VIII. Conclusion leased by “annual members” constituted (S.D.N.Y. Oct. 3, 2014). a “dwelling” for purposes of the FHA); 15. 29 C.F.R. § 1630.2(j)(2). Confusion among landlords, Conn. Hosp. v. City of New London, boards and residents alike is inevi- 129 F. Supp. 2d 123, 135 (D. Conn. 2001) 16. 29 C.F.R. § 1630.2(i)(1)(ii). table and understandable. Charged (viewing the inquiry as turning on 17. Graham v. Three Vill. Cent. Sch. Dist., whether “plaintiffs’ occupancy resembles 2013 WL 5445736, at *11 (E.D.N.Y. Sept. with abiding by discrimination that of a resident…more than that of a 30, 2013) (quoting D’Entremont v. Atlas laws, landlords and boards must hotel guest”) (quotation marks omitted); Health Care Linen Servs. Co., No. 12– perform thorough and acute—yet Hernandez v. Ever Fresh Co., 923 F. Supp. CV–0060 (LEK/RFT), 2013 WL 998040, non-“intrusive”—investigations of 1305, 1308-09 (D. Or. 1996) (temporary, at *6 (N.D.N.Y. Mar. 13, 2013 (citation seasonal housing for migrant farm omitted)); see Franchi v. New Hampton applications for emotional support workers constituted a dwelling under the Sch., 656 F. Supp. 2d 252, 259-60 (D.C. FHA).

28 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 N.H. 2009) (plaintiff mother suing private 28. See e.g. The N.Y. State Div. of Human 31. See United States v. Cal. Mobile Home boarding school suffi ciently alleged Rights v. 111 East 88th Partners, Park Mgmt. Co., 107 F.3d 1374, 1380 (9th that the daughter’s eating disorder N.Y.L.J., Sept. 18, 2014, 1202670317446, Cir. 1997). substantially limited the major life at *1 (Sup. Ct. N.Y. Co.) (fi nding that 32. Ass’n of Appartment Owners of activity of eating, thus constituting a although tenant may have had a record Liliuokalani Gardens v. Taylor, 892 F. disability within the meaning of the FHA, of a disability in the past, where his Supp. 2d 1268, 1287 (D. Haw. 2012). because the alleged condition required impairment had not limited his day- a careful watch over her food intake to to-day activities, and he could not 33. In re Kenna Homes Coop. Corp., 210 protect against potentially dangerous demonstrate a current impairment, W.Va. 380, 392, 557 S.E.2d 787, 799 (W.Va. weight loss). or provide any evidence as to when 2001); see Overlook Mut. Homes, Inc. he might again experience the same v. Spencer, 666 F. Supp. 2d 850, 856-57 18. See Williams v. N.Y. City Housing Auth., symptoms and their severity, he was (S.D. Ohio 2009) (housing corporation 879 F. Supp. 2d 328, 336 (E.D.N.Y. 2012); unable to demonstrate that the dog was entitled to question the treating see infra. “is necessary for the enjoyment of the psychologist about the alleged disability 19. N.Y. Exec. Law § 292(21) (McKinney 2014) apartment”); see also Kennedy St. Quad, and the need for the dog). (emphasis added); State Div. of Human Ltd., supra (although the complainants 34. See Douglas v. Kriegsfeld Corp., 884 A.2d Rights v. Xerox Corp. 65 N.Y.2d 213, 219, submitted evidence that the dog helped 1109, 1131 (Dist. Col. App. 2005). 480 N.E.2d 695, 698, 491 N.Y.S.2d 106, 109 them with their symptoms of depression, (1985). they failed to demonstrate that the 35. Joint Statement of the Department of Urban Housing and Development 20. Matter of Doe v. Bell, 194 Misc.2d 774, dog was actually necessary in order for them to enjoy the apartment); In re and Department of Justice, available at 779, 754 N.Y.S.2d 846, 851 (Sup. Ct. N.Y. http://www.hud.gov/offi ces/fheo/ Co. 2003) (quoting Xerox Corp. 65 N.Y.2d 105 Northgate Co-op. v. Donaldson, 54 A.D.3d 414, 416, 863 N.Y.S.2d 469, 470 library/huddojstatement.pdf, pp. 13-14 at 219, 480 N.E.2d at 699, 491 N.Y.S.2d at (emphasis added). 109; see Reeves v. Johnson Controls World (2d Dep’t 2008); In re One Overlook Ave. Services, Inc., 140 F.3d 144, 155-156 (2d Corp. v. N.Y. State Div. of Human Rights, 36. See Rutland Court Owners, Inc. v. Cir. 1998) (plaintiff’s panic disorder was 8 A.D.3d 286, 287, 777 N.Y.S.2d 696 (2d Taylor, 997, A.2d 706, 711-712 (D.C. 2010) a disability under the New York City Dep’t 2004); Landmark Props. v. Olivo, (determination of disability was based Human Rights Law because a “literal 5 Misc. 3d 18, 21, 783 N.Y.S.2d 745, 748 on suffi cient evidence where, inter alia, reading of the statute treats a medically (App. Term 2d Dep’t 2004); Contello psychiatrist testifi ed that cooperative diagnosable impairment as necessarily a Towers Corp. v. N.Y. City Dep’t of Hous. shareholder suffered from bipolar disability”). Pres. & Dev., N.Y.L.J., Nov. 17, 2004, p. disorder, post-traumatic stress disorder 19, col. 1 (Sup. Ct. Kings Co.) (granting and basic mood instability, which were 21. Wilson v Phoenix House, 978 N.Y.S.2d Article 78 petition because there was “no treated with a number of medications, 748, 763 (Sup. Ct. Kings Co. 2013). evidence in the record to establish that and that these conditions impeded 22. The New York City Human Rights Law allowing an exception to the no-pet rule shareholder’s ability to organize, (NYCHRL) may defi ne disability even in this instance was necessary to afford concentrate, focus his attention and stay more broadly, as “any physical, medical, [the tenant] equal opportunity to use motivated to complete tasks); Prindable mental or psychological impairment, or and enjoy the apartment”). Notably, in v. Ass’n of Apartment Owners of 2987 a history or record of such impairment.” contrast, the NYCHRL does not make Kalakaua, 304 F. Supp. 2d 1245, 1255 New York City Administrative Code any reference to “necessity.” It simply (D. Haw. 2003), aff’d sub nom. Dubois (N.Y.C. Admin. Code) § 8-102(16)(a). requires a reasonable accommodation v. Ass’n of Apartment Owners of 2987 From a review of the case law, it does whenever doing so “enables” a person Kalakaua, 453 F.3d 1175 (9th Cir. 2006) not seem that the NYCHRL is regularly with a disability to enjoy certain rights. (issue of fact as to whether condominium invoked in emotional support pet cases. See Comm’n of Human Rights v. Riverbay unit owner’s roommate had a disability Other municipalities throughout the state Corp., 2011 N.Y. OATH LEXIS 156, 25-26 where physician concurred with also have their own particular defi nitions (2011). While it may be informative to behaviorist’s evaluation that roommate and requirements. review analogous statutes and caselaw, had symptoms of depression, that a pet the Local Civil Rights Restoration would “have a positive impact on [his] 23. 24 C.F.R. § 100.201. Act of 2005 mandates a more liberal condition and a separation from his 24. Douglas v. Kriegsfeld Corp., 884 A.2d construction and broader application of pet would exacerbate his condition,” 1109, 1131 (D.C. 2005). remedies under the NYCHRL. Riverbay another physician identifi ed roommate 25. Rutland Court Owners, Inc. v. Taylor, 997 Corp., supra at 30-32. In that connection, as suffering from a mental dysfunction A.2d 706, 711 (D.C. 2010), citing Douglas, the NYCHRL has a broader defi nition that impaired his ability to work, and supra. of “reasonable accommodation” (N.Y.C roommate averred that he had HIV, Admin. Code) § 8-102(18)), in that depression and anxiety, and had been 26. See Tsombanidis v. W. Haven Fire Dep’t, it does not permit any category of unable to work); see also HUD v. Dutra, 2 352 F.3d 565, 578 (2d Cir. 2003) (citing accommodation to be “excluded from the Fair Housing-Fair Lending (P-H) P25,124, Smith & Lee Assocs., Inc. v. City of universe of reasonable accommodation.” at p. 26,059, 1996 HUD ALJ LEXIS 55, Taylor, 102 F.3d 781, 795 (6th Cir.1996); see Phillips v. City of New York, 66 A.D.3d 21-22, 1996 WL 657690 (HUDALJ 1996) also In re Durkee v. Staszak, 223 A.D.2d 170, 182, 884 N.Y.S.2d 369 (1st Dep’t 2009) (landlord violated the FHA by refusing 984, 985, 636 N.Y.S.2d 880, 881-82 (3d (rejected by Jacobsen v. New York City to grant a mentally disabled man a Dep’t 1996) (affi rming determination that Health & Hospitals Corp., 22 N.Y.3d 824, reasonable accommodation to allow him petitioner in ADA and Rehabilitation 988 N.Y.S.2d 86 (2014). to keep his emotional support cat in a Act case involving the provision of no-pets apartment where he established emergency housing had failed to establish 29. Hubbard v. Samson Mgmt. Co., 994 F.Supp. 187, 190 (S.D.N.Y. 1998). that having his cat live with him greatly that he was emotionally dependent on his increased his enjoyment of his apartment dog). 30. See New York State Div. of Human and the quality of his life, and “[b]oth Dr. 27. See In re Kennedy St. Quad, Ltd. v. Rights v. 111 E. 88th Partners, 2012 N.Y. Gallo and Dr. Merritt were of the opinion Nathanson, 62 A.D.3d 879, 880, 879 Misc. LEXIS 2647, 25, 2012 N.Y. Slip Op. that Complainant derived a therapeutic N.Y.S.2d 197 (2d Dep’t 2009). 31475(U), 19 (Sup. Ct., N.Y. Co. 2012), benefi t from keeping his cat”). citing Hubbard, supra.

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 29 37. See N.Y. State Div. of Human Rights v. 111 and enjoy the apartment, she failed to records, confi dential—information East 88th Partners, 2012 N.Y. Misc. LEXIS demonstrate through either medical addressing these three points. Asking for 2647, 23, 2012 N.Y. Slip Op. 31475(U) or psychological expert testimony or even more medical records providing (Sup. Ct., N.Y. Co. 2012) (issue of fact evidence that her son required a dog nexus information was clearly ‘highly as to whether tenant had a “disability” in order for him to use and enjoy the intrusive,’ and the intrusion was not and whether his pet was “necessary” for apartment); Landmark Props. v. Olivo, necessary.”). him to enjoy and use the premises where 5 Misc. 3d 18, 21, 783 N.Y.S.2d 745, 748 42. Schwarz v. City of Treasure Island, 544 he provided medical and psychological (App. Term 2d Dep’t 2004) (affi rming F.3d 1201, 1220 (11th Cir. 2008). evidence in support of his claim of a denial of a reasonable accommodation disability where he submitted his medical claim because the tenant “submitted only 43. Schwarz, 544 F.3d at 1220. record and laboratory reports, his the ambiguous statement of his physician 44. 24 C.F.R. § 100.204(b)(1), supra at 6; see, psychotherapist’s treatment notes from that depressed people may benefi t from e.g., Sabal Palm Condos. of Pine Island 2002 to 2010 and documentation from his having pets and notes from his medical Ridge Ass’n v. Fischer, 2014 U.S. Dist. psychotherapist, discussing his history records that he was anxious about LEXIS 36040, 24 (S.D. Fla. 2014) (The of treatment for Dysthymic Disorder, possibly losing his dog”). raison d’être of plaintiff condominium characterized by depressed mood for 38. See, e.g. Bovin v. Galitzka, 250 N.Y. 228, association was to provide housing, most of the day, for more days than not, 165 N.E. 273 (1929) (landlord had right which would not be fundamentally for at least two years, manifested by to terminate lease by reason of tenant’s altered by allowing a disabled resident to overeating, low self-esteem, low energy violation of provision of occupancy keep a service dog). and feelings of hopelessness, being agreement which prohibited harboring distrustful and isolating himself; he was 45. See, e.g., Stevens v. Hollywood Towers & and maintaining animals in the demised Condo. Ass’n, 836 F. Supp. 2d 800, 810 also a diabetic, and the dog provided premises); Hillman Hous. Corp. v. tenant with unconditional affection (N.D. Ill. 2011) (where condominium unit Krupnik, 40 A.D.2d 788, 337 N.Y.S.2d owner claimed that it was unreasonable and comfort, also lifting his spirits; 547 (1st Dep’t 1972) (injunctive relief even landlord’s expert did not opine to require her to carry her dog in a pet to remove a dog is available where carrier because of her disability and that tenant was a well-adjusted adult); lease forbids harboring dogs); Triangle Crossroads Apartments Assoc. v. LeBoo, physical limitations, which made it Mgmt. Corp. v. Innis, 62 Misc. 2d 1095, impossible for her to manage a carrier 152 Misc. 2d 830, 578 N.Y.S.2d 1004, 312 N.Y.S.2d 745 (Civ. Ct. N.Y. Co. 1007 (City Ct., Rochester 1991) (tenant and her other belongings, and that the 1970) (harboring a dog in an apartment use of the building’s side entrances was created an issue of fact as to whether contrary to a prohibition in the lease was he had an emotional and psychological problematic because it required her to considered a substantial violation of the walk a greater distance and put her at dependence on the cat which required lease). him to keep the cat in the apartment by risk of being hit by oncoming traffi c, submitting the affi davits of his treating 39. See In re Levandusky v. One Fifth Ave. increasing her anxiety stemming from psychiatrist, his clinical social worker, Appartment Corp., 75 N.Y.2d 530, 553 her disability, the court determined that and a certifi ed pet-assisted therapist N.E.2d 1317, 554 N.Y.S.2d 807 (1990); Bd. she needed to provide evidence that who all described his mental illness, his of Mgrs. of Fairways at N. Hills Condo. v. she was disabled, that she needed the course of treatment, and concluded that Fairway at N. Hills, 193 A.D.2d 322, 603 dog to treat her disability, and that her he received therapeutic benefi ts from N.Y.S.2d 867 (2d Dep’t 1993). disability made it necessary for her to keeping and caring for his cat, and that travel through the complex by the path 40. See, e.g., Hawn v. Shoreline Towers Phase of her choosing); Prindable v. Ass’n of the keeping of the cat assisted him in I Condo. Ass’n, 2009 U.S. Dist. LEXIS his use and enjoyment of his apartment Apartment Owners of 2987 Kalakaua, 24846, 2009 WL 691378 at ** 3-4 (N.D. 304 F.Supp.2d 1245, 1259 n.29 (D. Haw. by helping him cope with the daily Fla. 2009) (board properly sought more manifestations of his mental illness); cf. In 2003) (to succeed in his challenge to the information after it received a short, one- limitations the association had placed re Kennedy St. Quad, Ltd. v. Nathanson, page letter from one physician, whose 62 A.D.3d 879, 880, 879 N.Y.S.2d 197 (2d on his use of the dog, the plaintiff would letter provided very little information have to come forward with evidence that Dep’t 2009) (although the complainants about the plaintiff’s alleged disability, submitted evidence that the dog helped he had a disability that not only required and another from a chiropractor, whose the use of a dog, but which also required them with their symptoms of depression, letter did not provide any whatsoever, they failed to present any medical or him to take the path of his choice through and neither letter indicated whether the building). psychological evidence to demonstrate plaintiff’s limitations and diffi culties that the dog was actually necessary in were temporary or permanent, nor did 46. Fair Hous. of the Dakotas, Inc. v. order for them to enjoy the apartment); In they indicate that the dog was actually Goldmark Prop. Mgmt., 778 F. Supp. re 105 Northgate Co-op. v. Donaldson, 54 “necessary…to afford [the plaintiff] 2d 1028, 1040 (D.N.D. 2011), citing A.D.3d 414, 416, 863 N.Y.S.2d 469, 470 (2d equal opportunity to use and enjoy a Joint Statement of the Department of Dep’t 2008) (annulling New York State dwelling,” as opposed to just desirable Urban Housing and Development and Division of Human Rights discrimination and helpful, and, notably, the letters also Department of Justice, available at, http:// fi nding because “the complainant failed did not describe the providers’ individual www.hud.gov/offi ces/fheo/library/ to demonstrate, through either medical qualifi cations, background, or treatment huddojstatement.pdf, supra, at p. 9, ¶11, or psychological expert testimony or history with the plaintiff); Jankowski Example 2. evidence, that she required a dog in order Lee & Assoc. v. Cisneros, 91 F.3d 891, 47. HUD Notice: FHEO-2013-01, “Service to use and enjoy her apartment unit”); In 895 (7th Cir. 1996) (board faulted for not Animals and Assistance Animals for re One Overlook Ave. Corp. v. N.Y. State requesting additional information from People with Disabilities in Housing and Div. of Human Rights, 8 A.D.3d 286, 287, tenant alleging handicap under the FHA). HUD-Funded Programs,” p. 3; available 777 N.Y.S.2d 696 (2d Dep’t 2004) (where at http://portal.hud.gov/hudportal/ mother claimed that her son suffered 41. See, e.g., Sabal Palm Condos. of Pine documents/huddoc?id=servanimals_ from dysthymia, a form of depression, Island Ridge Ass’n v. Fischer, 2014 U.S. ntcfheo2013-01.pdfhttp://portal. and that he should be able to keep a Dist. LEXIS 36040, 52 (S.D. Fla. 2014) hud.gov/hudportal/documents/ companion dog in the apartment in order (“Sabal Palm had already received huddoc?id=servanimals_ntcfheo2013-01. to alleviate his depression and thus use detailed—and in the case of the medical pdf.

30 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 48. See Joint Statement of the Department of order in favor of the Cooperative (In re Virginia Trunkes is a Senior As- Urban Housing and Development and E. River Hous. Corp. v. N. Y. State Div. sociate with Ganfer & Shore, LLP. Department of Justice, available at http:// of Human Rights, 116 A.D.3d 562, 984 www.hud.gov/offi ces/fheo/library/ N.Y.S. 2d 331 (1st Dep’t 2014)), is whether She has written various articles on huddojstatement.pdf, p. 9, Example 2. permitting one of tenant-shareholders litigation for the New York Law Jour- to pursue her claim with HUD and 49. E. River Hous. Corp. v. Aaron, N.Y.L.J., nal and the NYLitigator (NYSBA). in federal court, after the New York Oct. 25, 2013, 1202624958690, at *1 She credits Ira B. Matetsky, Esq. and State Division of Human Rights (to (Civ. Ct., N.Y. Co.) and E. River Hous. which HUD originally transferred the Sandra L. Jacobus, Esq., for their Corp. v. Gilbert, N.Y.L.J., Jan. 9, 2014, tenant-shareholder’s complaint) earlier guidance and support in preparation 1202638977520, at *1 (Civ. Ct. N.Y. Co.). dismissed her complaint for lack of of this article. 50. Compaint by Plaintiff, United States v. probable cause, contravenes the election East River Hous. Corp., S.D.N.Y. No. 13 of remedies provision contained in Civ. 8650. Executive Law § 297(9) (9 N.Y.C.R.R. § 51. One of the issues raised in the motion 465.5[e][2][vi]). practice, following an Appellate Division

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NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 31 New State Law Requires Sprinkler System Clauses in Leases By Adam Leitman Bailey and Dov Treiman

Effective December 3, 2014, all tions require that the development’s mandatory sprinkler language, the residential leases in New York State proprietary leases be identical to each party arguing that it is a license may require a notice to the tenant about other. Since this new law requires that be fi nding itself to have accidentally the presence or absence of sprinkler all residential leases issued on or after conceded that it was a lease. systems in the “leased premises.”1 The December 3, 2014 contain the required new law, while defi ning what a sprin- language,3 this means that in order to While leases given in some form kler system is, does not defi ne what a issue one proprietary lease to the new of regulatory housing typically have “lease” is or what “premises” are. The owner of an apartment in a coopera- lease clauses that the lease must law is effective through the entire State tive complex, all of the proprietary contain, required languages in un- of New York and makes no exceptions leases for that complex will have had regulated residential leases are exceed- for premises that are governmentally to have been amended on or prior to ingly rare. Generally speaking, in the regulated or even governmentally run. December 2, 2014. Since the statute State of New York, a landlord and a However, while stating what must ex- specifi es that the new language has to tenant could write on the back of a ist, the law has no enforcement mecha- be in bold print4 (without specifying cocktail napkin, “The apartment at 123 nism on its face and no penalty stated just what the language is), this means Mockingbird Lane will be rented to for noncompliance. Where there is no that it will not be good enough for the the tenant to live in for X months at $Y question whether the document in Board of Directors to pass a resolution rent per month” and, once they sign it, question really is some kind of lease, it that all of the leases in the complex are they have a “residential lease” within appears clear that the law covers both “deemed” or considered amended by the meaning of this new law. Now the main leases and subleases, and both adding this language. It will actually law requires that cocktail napkin to new leases and renewal leases. have to be done in real time on real state facts about whether or not there paper. We have no way of predicting is a sprinkler system and what its The law is short and simple. It the results if a shareholder simply recent maintenance history is and to 5 So, while says, “1. Every residential lease shall refuses to sign the new lease. We note do so “in bold face type.” the rest of the cocktail napkin can be provide conspicuous notice in bold that in some cooperative develop- handwritten, the sprinkler language face type as to the existence or non- ments, this could mean the forced has to be machine generated. And the existence of a maintained and opera- reissuance of hundreds of leases. tive sprinkler system in the leased law does not specify what happens if premises. 2. For purposes of this sec- Other leases for residential space the cocktail napkin fails to obey the tion, ‘sprinkler system’ shall have the go by the name “occupancy agree- law. Is this no longer a valid lease same meaning as defi ned in section ment,” but are nonetheless actually under New York law? Nobody knows. one hundred fi fty-fi ve-a of the execu- leases. In fact, there is no legal re- However, if it is not a valid lease, the tive law. 3. If there is a maintained quirement for what the parties call courts will probably fi nd that there and operative sprinkler system in the the agreement. Even more confusing, is a valid month-to-month tenancy leased premises, the residential lease some leases deny that they are leases. and will give both sides the minimal agreement shall provide further notice This is typical of leases that call them- protections that kind of tenancy ac- as to the last date of maintenance and selves licenses. While some licenses cords somewhat differently inside inspection.”2 really are licenses, licenses are dif- the boundaries of New York City and fi cult to draft correctly and therefore outside those boundaries. While most leases call themselves the courts hold many documents that “leases,” there are other names as Particularly inside the City of want or claim to be licenses to actually well. Even where the name is modi- New York, folks who are subletting be leases. As a result, the parties hold- fi ed in some manner, common percep- may fi nd themselves in for quite a ing this kind of lease could be very tion fails to recognize a lease as being surprise from this statute. First of all, surprised to fi nd out that this statute such. Thus, many cooperators under as sublessors, they have essentially no also applies to them. The consequenc- “proprietary leases” are so focused on control over any sprinkler system and es for such a document failing in good their being shareholders in the corpo- neither any access whatsoever to the faith to include the required sprinkler ration that they lose track of the fact maintenance records, nor the ability to language are, at this point, too diffi cult that they are also conventional tenants demand such access. If they are rent- to imagine. But, on the fl ip side of the in a conventional landlord-tenant regulated tenants, their last renewal issue, if there is a license where one relationship. lease could have been two years ear- of the parties claims that it is really a lier. And, even if it is more than two The bylaws of the overwhelm- lease and the document includes the years after this law’s enactment, and ing majority of cooperative corpora-

32 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 therefore they have knowledge from ing or other housing where there required language aren’t valid leases their own renewal lease, by the time are governmental qualifi cations for at all. Perhaps, the New York State they sublet that information could be tenancy, there is no statutory right to Attorney General’s Offi ce will take the nearly two years out of date. sublet. However, in buildings of four attitude that folks who rent to several or more units that are not in those or more different tenants with leases With regard to rent regulated special situations, New York law that lack this mandatory language are leases, we note that the statute re- presents a statutory right to sublet, guilty of fraudulent business activities quires that the lease set forth “the last 6 provided the tenant follows to the and are subject to fi nes and penal- date of maintenance and inspection.” letter a clearly described procedure set ties. Perhaps fi re insurers will deny However, on the probably valid as- forth in the statute.7 There are several coverage of fi res in tenancies where sumption that the lease is offered as steps to that procedure and the fi rst the insured failed to insist upon this early as 150 days before the expiration step in the procedure includes sending language being present in the lease of the last lease, the landlord will be to the landlord a copy of the proposed and are therefore, under the insurer’s fi lling out “the last date of mainte- sublease.8 Under this new statute, the theory, partially responsible for their nance and inspection” on a date that landlord can drag the sublet-wanting own fi re damage. Or perhaps they will is nearly half a year prior to the lease tenant through the rest of the sublet deny coverage on the theory that the going into effect. So, the effective date procedure and then, even though the renter fraudulently claimed to have a of the lease may be after a mainte- landlord was in possession from the lease. nance and inspection that took place very beginning of the ace in the hole We doubt that the Legislature between the time of the lease offer and that was going to allow denial of the really thought through any of the the time of the lease acceptance (even sublet request, at the very end of the issues that are presented in this assuming that the tenant is absolutely procedure deny the request because article. Private communications with prompt in accepting the lease renewal, the sublease did not comply with this legislators have informed us that the a not particularly valid assumption). new statute. And two things are going Legislature realizes that the statute is Should the landlord have to notify to make it very likely that the sublease heavily fl awed and it can be expected the tenant of a different date of main- won’t comply with the new statute: to be repairing it in the coming years. tenance and inspection after the offer? The fi rst is that the subletting tenant Until then, this law will serve as a Perhaps the landlord should notify the will have no warning in the sublet law stellar example of the law of unin- tenant of a different date of mainte- that leases need to have any particu- tended consequences. Whatever those nance and inspection, but we note that lar language; the second is that the consequences may be, these authors, under rent stabilization, the landlord sublet-wanting tenant probably has as the drafters of all the Blumberg- cannot change the lease offer. So, the no access to the maintenance history Excelsior New York residential leases lease signed by the tenant may have of the sprinkler system and no way to of the last decade, have updated all of information that is no longer true, demand it. information that perhaps this new our lease forms to include the required law requires and the rent stabilization This law will affect at least tens of language. We are advised that the new law simultaneously prohibits. This thousands of dwelling arrangements forms will be available in plenty of problem could possibly be solved by where people will have absolutely time for the December 3, 2014 effective the landlord mailing an update on the no idea they are in violation of the date of the statute. date the renewal lease is to take effect. law. In the City of New York, this will include sublets and apartments of all Endnotes On the subject of rent stabilization, kinds in buildings with fewer than six we note that this lease renewal would 1. Act of August 5, 2014, ch. 202, 2014 N.Y. residential units. The larger buildings Laws, S. 5212-A (McKinney). be different from the lease it renews, will also be affected, but they are more 2. N.Y. REAL PROP. LAW §231-a (2014). but while rent stabilization requires likely to expect obscure laws to be rul- that the renewal of the lease be on ing them. In the vast rural parts of the 3. Id. at §231-a (1). the same terms and conditions as the state, tens of thousands of rentals will 4. Id. expiring lease, this notifi cation of the be affected in places where people are 5. Id. at §231-a (1). status of the sprinkler system is not a living in a fool’s paradise that housing 6. Id. at §231-a (3). “term and condition”; it is merely a regulation is a New York City phe- 7. N.Y. REAL PROP. LAW §226-b (2)(a) (2014). notifi cation. So, at least as to that mat- nomenon alone. ter, rent stabilization should present 8. Id. at §226-b (2)(b). no problem under the new statute. And all of these places, in large buildings and small, inside New York Adam Leitman Bailey is the Where this law can have a sub- City and outside it, will all have the founding partner and Dov Treiman is stantial anti-consumer effect is on the same question we can’t answer: How the Landlord-Tenant Managing Part- question of subletting. In residential is this thing going to be enforced? Pos- ner of the New York City real estate rentals in buildings of three units or sible enforcement mechanisms include fi rm, Adam Leitman Bailey, P.C. fewer, in coops, and in public hous- courts fi nding leases that lack the

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 33 BERGMAN ON MORTGAGE FORECLOSURES: When the Borrower Attacks the Action Time After Time By Bruce J. Bergman

Some borrowers never get dis- assume that it a default, loses, then makes another couraged. They default, but then try will again do so motion springing one of the defenses repeatedly to vacate that default no when later the held in reserve, it won’t work. matter how many times they lose. borrower asserts Or, having interposed an answer it yet again, and This will helpfully serve to defeat which is stricken, they assault various then again. Need some wily borrowers. Unfortunately subsequent stages of the foreclosure a foreclosing it does not mean that such borrow- asserting the very same defenses pre- plaintiff worry ers cannot make such dilatory mo- viously banished by the court. that a court tions, just that the chances of defeat- will buy the ing those motions are considerably While not meaning to cast ploy next time stronger. aspersions upon counsel diligently around? Probably not, but it cannot protecting a borrower’s rights, the be said with total assurance that such Endnotes obvious detriment of such tactics to a scenario is impossible. lenders and servicers is twofold: the 1. Citing Viva Dev. Corp. v. United Humanitarian Relief Fund, 108 A.D.3d 619, time consumed by way of case delay But then, a recent case [Eastern 620 (2013); Discover Bank v. Qader, 105 in fending off these attacks and the Sav. Bank, FSB v. Brown, 112 A.D.3d A.D.3d 892 (2013); JMP Pizza, LLC v. 34th legal expense incurred in the process. 668, 977 N.Y.S. 2d 55 (2d Dept. 2013)] St. Pizza, LLC, 104 A.D.3d 648, 648 (2013); While the legal fees should later be confi rms a dual helpful principle. 47 Thames Realty, LLC v. Robinson, 85 A.D.3d 851, 852 (2011); Robert Marini Bldr. recouped, the irony is that when ap- v. Rao, 263 A.D.2d 846, 848 (1999). plication is made for reimbursement In a matter where a defendant borrower repeatedly moved to vacate 2. Citing Lambert v. Schreiber, 95 A.D.3d, upon the judgment of foreclosure and 1282, 1283 (2012). sale, courts simply do not always re- a default and then each stage of the imburse all the legal cost visited upon foreclosure thereafter, an appeals Mr. Bergman, author of the four- the foreclosing plaintiff. And if the court ruled that it is correct to deny volume treatise, Bergman on New attorneys’ fees are expended after the yet another motion a) where it is pre- York Mortgage Foreclosures, Lexis- judgment has issued (such as a post- mised upon grounds asserted in the Nexis Matthew Bender, is a mem- judgment borrower’s motion or upon prior motions previously denied by ber of Berkman, Henoch, Peterson, a defi ciency judgment motion) it is the court from which no appeal was 1 Peddy & Fenchel, P.C. in Garden usually too cumbersome and time taken or b) premised on grounds City. He is a fellow of the American consuming to go back and amend that were apparent at the time the College of Mortgage Attorneys and the judgment to apply anew for legal borrower made the prior motions but 2 a member of the American Col- fees—especially when the paramount did not assert the points. lege of Real Estate Lawyers and the goal is to fi nally arrive at the end of In other words, if a borrower USFN. His biography appears in the action. could assert fi ve existing defenses Who’s Who in American Law and he When a court rejects a borrower (even if fanciful or without founda- is listed in Best Lawyers in America defense once, it is reasonable to tion), uses one on a motion to vacate and New York Super Lawyers.

CHHECKECK US OUUTT OONN TTHEHE WEEBB hhttp://www.nysba.org/RealPropttp://www.nysba.org/RealProp

34 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 Section Committees and Chairs The Real Property Law Section encour ag es members to participate in its programs and to volunteer to serve on the Committees listed below. Please contact the Section Offi cers or Committee Chairs for further information about the Committees.

Attorney Opinion Letters Laureen Harris Land Use and Environmental Law Gregory P. Pressman Cronin Cronin Harris & O’Brien PC Matthew F. Fuller Schulte Roth & Zabel LLP 333 Earle Ovington Blvd., Suite 820 Meyer & Fuller, PLLC 919 Third Avenue Uniondale, NY 11553 161 Ottawa Street New York, NY 10022-4728 [email protected] Lake George, NY 12845 [email protected] [email protected] Condominiums & Cooperatives Charles W. Russell Dennis H. Greenstein Linda U. Margolin Harris Beach PLLC Seyfarth Shaw LLP Bracken Margolin Besunder LLP 99 Garnsey Road 620 Eighth Avenue 1050 Old Nichols Road, Suite 200 Pittsford, NY 14534 New York, NY 10018 Islandia, NY 11749 [email protected] [email protected] [email protected]

Awards Steven D. Sladkus Landlord and Tenant Proceedings Peter V. Coffey Wolf Haldenstein Adler Freeman Peter A. Kolodny Englert, Coffey, McHugh & Herz LLP Kolodny PC & Fantauzzi, LLP 270 Madison Avenue 338-A Greenwich Street 224 State Street New York, NY 10016-0601 New York, NY 10013 P.O. Box 1092 [email protected] [email protected] Schenectady, NY 12305 [email protected] Continuing Legal Education Edward J. Filemyr IV Lawrence J. Wolk 11 Park Place, Suite 1212 Commercial Leasing Rosenberg & Estis PC New York, NY 10007 Robert J. Shansky 733 Third Avenue fi [email protected] Scarola, Malone & Zubatov, LLP New York, NY 10017 1700 Broadway [email protected] Law School Internship New York, NY 10019 Shelby D. Green [email protected] Joseph M. Walsh Pace University School of Law Walsh & Walsh, LLP 78 North Broadway David J. Zinberg 42 Long Alley White Plains, NY 10603-3796 Ingram Yuzek Gainen Carroll & Saratoga Springs, NY 12866-2116 [email protected] Bertolotti, LLP [email protected] 250 Park Avenue Ariel Weinstock New York, NY 10177 Diversity Katsky Korins LLP [email protected] Harry G. Meyer 605 3rd Avenue, 16th Floor Hodgson Russ LLP New York, NY 10158-0180 Commercial Real Estate Financing The Guaranty Building [email protected] Frank C. Sarratori 140 Pearl Street Pioneer Bank Buffalo, NY 14202 Legislation 21 Second Street [email protected] Richard A. Nardi Troy, NY 12180 Loeb & Loeb LLP [email protected] Green Real Estate 345 Park Avenue, 21st Fl. Joel I. Binstok New York, NY 10154 Richard S. Fries York Consulting [email protected] Sidley Austin LLP 570 Lexington Avenue, Suite 2900 787 Seventh Avenue New York, NY 10022 Samuel O. Tilton New York, NY 10019 [email protected] Woods Oviatt Gilman LLP [email protected] Nicholas M. Ward-Willis 700 Crossroads Building Keane & Beane, PC 2 State Street Condemnation, Certiorari and Real 445 Hamilton Avenue, Suite 1500 Rochester, NY 14614-1308 Estate Taxation White Plains, NY 10601 [email protected] Karla M. Corpus [email protected] Hiscock & Barclay LLP One Park Place 300 South State Street Syracuse, NY 13202-2078 [email protected]

NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 35 Low Income and Affordable Elizabeth S. Woods Gino Tonetti Housing 56 South Main Street 100 Exchange Street, Unit 1704 Laura Ann Monte Rutland, VT 05701-4163 Providence, RI 02903-2619 HSBC Bank USA [email protected] [email protected] One HSBC Center, 27th Floor Buffalo, NY 14203 Publications Residential Real Estate Financing [email protected] William A. Colavito Heather C.M. Rogers One Robin Hood Road Davidson Fink LLP Richard C. Singer Bedford Hills, NY 10507 28 East Main Street, Suite 1700 Hirschen Singer & Epstein LLP [email protected] Rochester, NY 14614 902 Broadway, 13th Floor hrogers@davidsonfi nk.com New York, NY 10010 William P. Johnson [email protected] Nesper, Ferber & DiGiacomo, LLP Title and Transfer 501 John James Audubon Pkwy Gerard G. Antetomaso Membership One Towne Centre, Suite 300 Gerard G. Antetomaso, PC Harry G. Meyer Amherst, NY 14228 1674 Empire Boulevard, Suite 200 Hodgson Russ LLP [email protected] Webster, NY 14580 The Guaranty Building [email protected] 140 Pearl Street Marvin N. Bagwell Buffalo, NY 14202 Old Republic National Title Insurance Co. Thomas J. Hall [email protected] 400 Post Avenue, Suite 310 The Law Firm of Hall & Hall, LLP Westbury, NY 11590 57 Beach Street Jaime Lathrop [email protected] Staten Island, NY 10304-2729 Law Offi ces of Jaime Lathrop, PC [email protected] 641 President Street, Suite 202 Vincent Di Lorenzo Brooklyn, NY 11215-1186 St. John’s University School of Law Joseph D. DeSalvo [email protected] 8000 Utopia Parkway First American Title Insurance Belson Hall, Room 4-46 Company of New York Not-for-Profi t Entities and Concerns Jamaica, NY 11439 633 Third Avenue, 17th Floor Susan E. Golden [email protected] New York, NY 10017 Venable LLP jdesalvo@fi rstam.com 1270 Avenue of the Americas Real Estate Construction New York, NY 10020-1700 Kenneth M. Block Task Force on NYSI D TI Regs [email protected] Tannenbaum Helpern Syracuse & Thomas J. Hall Hirschtritt, LLP The Law Firm of Hall & Hall, LLP Anne Reynolds Copps 900 3rd Avenue 57 Beach Street Copps DiPaola, PLLC New York, NY 10022-4728 Staten Island, NY 10304-2729 126 State Street, 6th Floor [email protected] [email protected] Albany, NY 12207 [email protected] Brian G. Lustbader Website and Electronic Schiff Hardin Communications Professionalism 666 5th Avenue, Suite 1700 Susan M. Scharbach Patricia E. Watkins New York, NY 10103 D’Agostino, Levine, Landesman Bartlett, Pontiff, Stewart & Rhodes PC [email protected] & Lederman, LLP One Washington Street 345 Seventh Avenue, 23rd Floor P.O. Box 2168 Real Estate Workouts and New York, NY 10001 Glens Falls, NY 12801-2168 Bankruptcy [email protected] [email protected] Robert M. Zinman St. John’s University School of Law Michael P. Stevens Nancy A. Connery 8000 Utopia Parkway Associate of Edward Joseph Filemyr IV Schoeman Updike Kaufman & Stern LLP Queens, NY 11439 11 Park Place, Suite 1212 551 Fifth Avenue [email protected] New York, NY 10007 New York, NY 10176 [email protected] [email protected] Garry M. Graber Hodgson Russ LLP Public Interest The Guaranty Building Maggie R. Robb 140 Pearl Street, Suite 100 Empire State Justice Buffalo, NY 14202-4040 One West Main St., Suite 200 [email protected] Rochester, NY 14614 [email protected]

36 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 Section District Representatives First District Sixth District Sanford A. Pomerantz Nancy A. Connery John E. Jones 7 Jodi Court Schoeman Updike Kaufman Hinman Howard & Kattell, LLP Glen Cove, NY 11542 & Stern LLP 700 Security Mutual [email protected] 551 Fifth Avenue 80 Exchange Street New York, NY 10176 Binghamton, NY 13901-3400 Eleventh District [email protected] [email protected] Joseph J. Risi Risi & Associates Second District Seventh District 35-11 36th Street, Ste. 404 Lawrence F. DiGiovanna Scott A. Sydelnik Long Island City, NY 11106 357 Bay Ridge Parkway Davidson Fink LLP [email protected] Brooklyn, NY 11209-3107 28 E. Main Street, Ste. 1700 [email protected] Rochester, NY 14614 Steven Wimpfheimer ssydelnik@davidsonfi nk.com 166-25 Powells Cove Blvd Third District Whitestone, NY 11357-1522 Alice M. Breding Eighth District [email protected] Law Offi ce of David Christopher Mineo Alice M. Breding, Esq., PLLC Fidelity National Financial Inc. Twelfth District 21 Executive Park Drive 55 Superior Boulevard Martin L. Popovic Clifton Park, NY 12065 Mississauga, ON L5T2X9 Bronx County Surrogate Court [email protected] Canada 851 Grand Concourse, Room 330 [email protected] Bronx, NY 10451-2937 Fourth District [email protected] Michelle H. Wildgrube Ninth District Cioffi Slezak Wildgrube, P.C. Lisa M. Stenson Desamours Thirteenth District 2310 Nott Street East Metlife Toni Ann Christine Barone Niskayuna, NY 12309 1095 Avenue of the Americas, 19th Fl. Law Firm of Barone & Barone, LLP mwildgrube@cswlawfi rm.com New York, NY 10036 43 New Dorp Plaza [email protected] Staten Island, NY 10306 Fifth District [email protected] Frederick W. Marty Tenth District Mackenzie Hughes LLP Daniel J. Baker 101 South Salina Street Sahn Ward Coschign & Baker, PLLC P.O. Box 4967 333 Earle Ovington Boulevard, Ste. 610 Syracuse, NY 13221 Uniondale, NY 11553-3645 [email protected] [email protected] Request for Articles

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NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 37 Section Officers N.Y. Real Property Law Journal Chair Co-Editors David L. Berkey William A. Colavito Gallet Dreyer & Berkey LLP One Robin Hood Road 845 Third Avenue, 8th Floor Bedford Hills, NY 10507 New York, NY 10022-6601 [email protected] [email protected] William P. Johnson First Vice-Chair Nesper Ferber & DiGiacomo, LLP Leon T. Sawyko 501 John James Audubon Parkway Harris Beach PLLC One Towne Centre, Suite 300 99 Garnsey Road Amherst, NY 14228 Pittsford, NY 14534 [email protected] [email protected] Marvin N. Bagwell Second Vice-Chair Old Republic National Title Insurance Co. Mindy H. Stern 400 Post Avenue, Suite 310 Schoeman Updike Kaufman & Stern LLP Westbury, NY 11590 551 Fifth Avenue [email protected] New York, NY 10176 [email protected] Prof. Vincent Di Lorenzo St. John’s University School of Law Secretary 8000 Utopia Parkway Patricia E. Watkins Belson Hall, Room 4-46 Bartlett, Pontiff, Stewart & Rhodes PC Jamaica, NY 11439 One Washington Street [email protected] P.O. Box 2168 Glens Falls, NY 12801 St. John’s University School of Law [email protected] Student Editorial Board Editor-In-Chief N.Y. Real Property Law Journal Sarah Mannix Submission Guidelines Executive Managing Editor The Journal welcomes the sub mis sion of articles of timely Jack Gamber interest to members of the Section in addition to comments and Associate Managing Editor sug ges tions for future is sues. Articles should be submitted to Dorian Rojas any one of the Co-Editors whose names and addresses appear on this page. Executive Articles and Notes Editors For ease of publication, articles should be submitted via Eric Dobric e-mail to any one of the Co-Editors, or if e-mail is not avail- Matthew Heymann able, on a CD, pref er a bly in Microsoft Word or WordPerfect Jennifer Tierney (pdfs are NOT acceptable). Accepted articles fall generally in the range of 7-18 typewritten, double-spaced pages. Please use Senior Staff Members endnotes in lieu of footnotes. The Co-Editors re quest that all Jane Bacha Linda Kim sub mis sions for con sider ation to be published in this Journal Carmen Borbon Giorgi Toreli use gender-neutral terms where ap pro pri ate or, alternatively, Nicholas Iorio Jennifer Wickers the masculine and feminine forms may both be used. Please Staff Members contact the Co-Editors regarding further re quire ments for the Eric McMahon sub mis sion of articles. Atenedoro Gonzalez Soohuen Ham Veronica Reyes Unless stated to the contrary, all pub lished articles repre- Jonah Blumenthal Rachel Deckterman sent the viewpoint of the author and should not be regarded as Evan Fuerstein representing the views of the Co-Editors, Board of Editors or Molly Full Connor Irish the Section or sub stan tive approval of the contents there in. Cynthia Vella Faculty Advisor Accommodations for Persons with Disabilities: Vincent Di Lorenzo NYSBA welcomes participation by individuals with disabilities. NYSBA is committed to complying with all applicable laws that prohibit discrimination against individuals on the basis of This Journal is published for mem bers of the Real Property disability in the full and equal enjoyment of its goods, services, Law Section of the New York State Bar Association. programs, activities, facilities, privileges, advantages, or accom- We reserve the right to reject any advertisement. The New modations. To request auxiliary aids or services or if you have York State Bar Association is not re spon si ble for typographical any questions regarding accessibility, please contact the Bar or other errors in advertisements. Center at (518) 463-3200. Copyright 2015 by the New York State Bar As so ci a tion. ISSN 1530-3918 (print) ISSN 1933-8465 (online) Cite as: N.Y. Real Prop. L.J.

38 NYSBA N.Y. Real Property Law Journal | Winter 2015 | Vol. 43 | No. 1 NEW YORK STATE BAR ASSOCIATION

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New York State Bar Association’s Residential Real Estate Forms— Powered by HotDocs®

Discover how easy it is to electronically produce 200 different residential PRODUCT INFO AND PRICES real estate forms—for both downstate and upstate transactions—by CD Prices* using New York State Bar Association’s Residential Real Estate Forms. PN: 6250 Quickly prepare clean, crisp, ready-to-fi le deeds, contracts of sale, clauses NYSBA Members $688 for numerous contingencies, various riders, escrow documents and Non-Members $806 closing agreements for traditional house sales, as well as for sales of cooperative and condominium units. Members 1 compact disc (single-user, annual subscription) Here are some of the ways New York State Bar Association’s Residential PN: 6250 • Annual Renewal $572 Real Estate Forms—Powered by HotDocs® will help make you and your staff more effi cient: Non-Members 1 com pact disc (single-user, annual subscription) • Increase Accuracy and Eliminate Repetitive Typing — Enter case-specifi c PN: 6250 • Annual Renewal $673 information once and it is automatically inserted throughout the form where that information is required. Multi-user pricing is available. Please call for details. • Smart Formatting — Calculations are performed automatically and intelligently. All pronouns and verbs are grammatically correct, *Prices subject to change without notice. paragraphs properly numbered. Free shipping and handling within the • Save Information — After completing a form, save the data you enter continental U.S. The cost for shipping and into an “answer fi le” and use it to automatically complete other forms. handling outside the continental U.S. will be added to your order. • Easy-to-Use — Dates and other information can be viewed through Prices do not include applicable sales tax. pop-up calendars and tables. A “Find” feature allows you to locate HotDocs® renewal pricing does not include any of the forms you need quickly and easily. shipping or applicable sales tax as charged by LexisNexis. • Comprehensive — Includes brokerage contracts; checklists; contracts of sale; contract addenda/riders; forms relating to contracts of sale; notes and mortgages; forms relating to loans, notes and mortgages; deeds; closing statements and forms; state and local tax forms.

Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB2843 NEW YORK STATE BAR ASSOCIATION NON PROFIT ORG. REAL PROPERTY LAW SECTION U.S. POSTAGE PAID One Elk Street, Albany, New York 12207-1002 ALBANY, N.Y. PERMIT NO. 155 ADDRESS SERVICE REQUESTED

ANNUAL MEETING 2015

SAVE THE January 26 – 31, 2015 DATE New York Hilton Midtown 1335 Avenue of the Americas, New York City

Real Property Law Section Program Thursday, January 29, 2015

For more information, go to www.nysba.org/am2015