The New York courts have cleared the way for a Georgica homeowner to complete construction of a buried rock revetment in Trustees of the Town of East Hampton v. Zweig. The oceanfront property at issue had suffered severe damage in successive years as a result of Hurricane Irene and Superstorm Sandy.  The homeowner secured her permits from the NYSDEC and the Village of East Hampton and began construction in November, 2013.  The project was halted, however, when the Town Trustees (a distinct body) claimed that they owned the beachfront land in question and brought an action to stop the revetment from going forward.  After several months of motions and hearings, the Supreme Court, Suffolk County (Hon. Andrew G. Tarantino, Jr.) issued an order on March 3, 2014 (Suffolk Co. Index No. 13-29760) denying the Trustees’ request for an injunction to stop construction.  When the Trustees took an immediate appeal for an injunction to the Appellate Division, Second Department, that court denied the request on March 12, 2014, clearing the way for the homeowner to complete the project prior to “piping plover” season.  [Note:  The revetment was, in fact, subsequently completed and covered with a restored dune.]

EHA Partner, Carmela Di Talia, was invited to author a chapter in the book Inside the Minds:  Strategies for Trusts and Estates in New York, 2014 edition. The book, including her chapter titled “Preliminary Will Contest Issues,” is now in publication.

In an action claiming adverse possession over a neighbor’s property, the Supreme Court, Suffolk County has granted the defendants’ motion for summary judgment dismissing the action, in Reyes v. Carroll, Index No. 14478/2013. The plaintiffs had claimed that they, and their predecessors, had occupied a portion of the defendants’ property in Wainscott, NY for more than 10 years, and therefore acquired the property through adverse possession.  The defendants moved to dismiss, arguing that the plaintiffs could not make out a successful claim of adverse possession on their own and could not “tack on” to the alleged possession by their predecessors.  In a 13-page decision, the Hon. W. Gerard Asher exhaustively reviewed the facts and law before agreeing with the defendants and dismissing the plaintiffs’ claims.

In a boundary-line dispute between one oceanfront landowner and the East Hampton Town Trustees, the Appellate Division, Second Department has upheld the owner’s claim that the boundary was a movable one that was based on the average beach grass line, rather than a fixed line found further inland, as had been urged by the Trustees in Macklowe v. Trustees of the Town of East Hampton, 2013 NY Slip Op 6840. The dispute dates back more than five years, when the Trustees first claimed that some of the dunelands adjacent to the property of Lloyd Macklowe were really owned by them.  Mr. Macklowe was forced to bring an action against the Trustees.  He retained Esseks, Hefter & Angel, LLP and Ackerman, O’Brien, Pachman & Brown, LLP to argue his case, which went to trial before the Hon. Thomas F. Whelan of the New York Supreme Court in 2011.  Justice Whelan, after hearing both claims, found in favor of Mr. Macklowe and against the Trustees in a March 2, 2012 decision.  The Trustees appealed the decision to the Appellate Division, which again found in favor of Mr. Macklowe and upheld “the Supreme Court’s determination that the plaintiffs hold title to the disputed lands north of an ambulatory line defined by the location of the average southerly line of beach grass on the beach of the Atlantic Ocean.”

The Supreme Court, Suffolk County, has denied a village’s motion to dismiss a “regulatory taking” case, which was based on the denial of a wetland permit, and instead upheld the plaintiff’s right to go to trial, in Mulholland v. Village of Southampton, Index No. 09-3002.  The plaintiffs, who had owned the property in question long before the village adopted any wetland regulations, obtained a similar wetland permit from the NYSDEC to build a small house on the property.  The village’s zoning board denied permission to build, however, under the village’s own wetland code.  The plaintiffs subsequently commenced an action against the village, claiming that the ZBA’s denial of the permit constituted a “taking”  without the payment of “just compensation,” in violation of both the New York State Constitution and the Fifth and Fourteenth Amendments of the United States Constitution.  The village moved for summary judgment to dismiss the action, but the Hon. Paul J. Baisley, Jr., denied the motion and found that the plaintiff had presented sufficient evidence to allow the case to be decided at trial.  A trial date is expected this Fall.

The Supreme Court, Suffolk County has dismissed a tenant’s action claiming fraud and breach of a lease in Two Twelve Management, LLC v. Connor, Index No. 09-19815. The tenant had rented a high-end residential property in Sag Harbor, NY and planned to hold commercial events at the property, including an outdoor concert.  In an action against the landlord, the tenant claimed that the village would not allow the concert, that neighbors complained about small gatherings, and that the tenant suffered damages when it was forced to relocate its events.  The Supreme Court (Hon. Denise F. Molia), dismissed the action on the grounds that (1) the landlord made no misrepresentations, (2) the tenant failed to take reasonable steps to protect itself, (3) the lease did not guarantee that the tenants would obtain any permits (and rent was not contingent on the receipt of those permits), and (4) any action taken by the Village would not translate into a breach on the part of the landlord.

The Appellate Division, Second Department has upheld the dismissal of a neighbor’s challenge to a certificate of occupancy in Birch Tree Partners LLC v. Zoning Board of Appeals of Town of East Hampton, 2013 NY Slip Op. 03834. After an owner of a Further Lane property in the Town of East Hampton completed the reconstruction of a guest house, a neighbor appealed the issuance of the certificate of occupancy to the local zoning board, which upheld the certificate and denied the appeal.  In the ensuing “Article 78” proceeding, the lower court rejected the neighbor’s challenge of the zoning board’s decision.  On appeal, the Appellate Division upheld the lower court’s decision on the dual grounds that the neighbor’s delays prohibited the challenge and that the zoning board’s decision was properly issue

Esseks, Hefter & Angel, LLP has been named as one of under 150 firms on Martindale-Hubbell’s list of 2013 New York Area’s Top Ranked Law Firms. Martindale-Hubbell compiled its list based on its database of confidential opinions of lawyers and judges who provide “peer” reviews of those lawyers about whom they have professional knowledge.  In addition to the firm’s inclusion on both 2013 New York and United States lists of Top Ranked Law Firms, some of EHA’s attorneys have recieved individual inclusion as Martindale-Hubbell’s list of Top Rated Lawyers in Land Use and Zoning.