We are pleased to announce a change in the name of the firm to “Esseks, Hefter, Angel, Di Talia & Pasca, LLP,” in recognition of Carmela Di Talia and Anthony Pasca’s contributions to the firm and their ten-year anniversary as partners.

The Supreme Court, Suffolk County (Hon. Paul J. Baisley, Jr.) has dismissed a specific performance action as premature, in Wunderlich v. Liberty Meadows, LLC, Index No. 64450/2014.  The plaintiff had brought the action before setting a “time of the essence” closing.  When the defendant moved to dismiss the action as premature, the plaintiff argued that the defendant “anticipatorily breached” the contract, thus excusing the plaintiff from setting a time of the essence closing.  The Supreme Court disagreed with the plaintiff and dismissed the action, holding that there was no anticipatory breach because the “defendant never expressed a clear and unequivocal intent not to perform or to abandon the contract….”

The Appellate Division, Second Department has upheld the dismissal of a challenge to a probate decree in Matter of Estate of Romano, 2016 NY Slip Op. 1682.  The court found that the challenger’s claim of “lack of capacity” on the decedent’s part was not supported by evidence, and the claim of “undue influence” was mere speculation and conjecture.

The Appellate Division, Second Department has upheld the dismissal of a neighbor’s adverse possession claim, and has re-instated the owner’s trespass claim, in Reyes v. Carroll. The case involved a boundary dispute on residential parcels in Wainscott, New York, where the plaintiffs claimed to have acquired a portion of the defendant’s property by adverse possession.  The court concluded that the plaintiffs, who had voluntarily removed a fence at the request of the defendants’ predecessor, failed to prove they occupied the defendants’ property “adversely.”  The court also concluded that the defendants were entitled to seek damages for plaintiff’s trespass on the defendants’ property.

The Appellate Division, Second Department has upheld the dismissal of a neighbor’s adverse possession claim in Birch Tree Partners, LLC v. Windsor Digital Studio, LLC.  In that case, the plaintiff had attempted to claim title to a portion of the defendant’s property by arguing that it performed “usual cultivation” of the disputed area through landscaping maintenance.  The plaintiff also had not owned the property for the required 10-year adverse possession period, so it argued that it was entitled to “tack on” to the alleged prior possession of its predecessor.  The Appellate Division rejected both of those arguments, finding insufficient proof of the level of cultivation required to support an adverse possession claim, as well as a lack of proof of intent (on the predecessor’s part) to transfer possession of the disputed area to the plaintiff, so as to support a claim of “tacking.”

EHA is pleased to welcome attorney Lisa D. Tymann to the firm’s estate planning practice group.  After spending nearly 20 years practicing transactional law in Washington, D.C., and New York City, Lisa is returning to Eastern Long Island to serve her home community.

The Supreme Court, Suffolk County has upheld a purchaser’s right to cancel a contract and recover a $560,000 downpayment upon discovery of mold in the home, in Minerof v. Lonergan, Index No. 14-68809.   The contract at issue included an express representation that there was no mold or mold remediation in the premises.  When mold was discovered at the home inspection, the purchaser requested a refund of the downpayment, but the seller refused and accused the purchaser of breaching the contract.  In the ensuing litigation, the court granted the purchaser summary judgment, concluding that the no-mold representation went to the heart of the contract and the no-mold-remediation clause precluded the seller from demanding an opportunity to cure.

The Supreme Court, Suffolk County has upheld the right of the owners of approximately 4,000 feet of oceanfront beach in Amagansett to proceed to trial in a long-running dispute against the East Hampton Town Trustees and the Town, in Seaview at Amagansett v. Trustees, Index No. 09-34714. The plaintiff owners allege in the action that the Napeague beach area in question was deeded into private ownership in an 1882 deed from the Trustees to Arthur Benson. In recent years, the area has become congested with seasonal usage of the beach that can include over 200 trucks parked directly on the beach, along with tents, picnics, bathers, children and pets, all without the benefit of bathroom facilities and lifeguards. The plaintiffs’ action seeks to quiet title to the beach and enjoin the unsafe nuisance. The Trustees and Town attempted to avoid a trial by obtaining a “summary judgment” against the plaintiffs, but the Hon. Jerry Garguilo of the Supreme Court rejected the motion, paving the way for a trial. In the decision, Justice Garguilo concluded that the plaintiffs proved that they “hold unbroken chains of title starting from the Benson Deed to the subject beach area, that is, to the high water mark or line of the Atlantic Ocean.” Additionally, although the beach is burdened by an easement relating to fishing activities, Justice Garguilo agreed with plaintiffs that the easement “may not be enlarged to include uses completely foreign to the grant, such as recreational purposes, including picknicking, sunbathing, boating and bathing.”

The Supreme Court, Suffolk County has dismissed a tenant’s action to enforce a right of first refusal in North Bay Management, Inc. v. Sylport 47, Index No. 14/70613.   The tenant had purported to exercise the right of first refusal, but the landlord argued that it had never accepted a competing offer to buy the property, so the right could not be invoked.  The court agreed with the landlord and explained that a “Right of First Refusal does not give its holder the power to compel and unwilling owner to sell, rather it requires the owner, when it decides to sell, to offer the property first to the party holding the pre-emptive right so that it may be bought at the same terms as the third-party offer.”  The court therefore dismissed the tenant’s action and ordered the notice of pendency to be canceled.

The Appellate Division, Second Department has rejected a challenge to the Town of East Hampton’s Airport Master Plan in Committee to Stop Airport Expansion v. Wilkinson, 2015 NY Slip Op 01941.  The master plan, which was adopted in September of 2010, was the culmination of a more than seven-year study and planning effort that spanned two town administrations.  Shortly after its adoption, a group of residents commenced a proceeding challenging the master plan and claiming that the Town failed to comply with its obligations under the State Environmental Quality Review Act (SEQRA) by failing to consider noise impacts.  After the Supreme Court upheld the Town’s review process and dismissed the proceeding in July of 2012, the residents appealed.  The Second Department’s unanimous decision concluded that the Town “fulfilled its obligations under SEQRA by taking a hard look at potential noise impacts of the proposed actions and made a reasoned elaboration of the basis for its determination…, which thoroughly analyzed noise data and potential noise mitigation based upon noise averaging methodology along with single event noise data.”