The Supreme Court, Suffolk County has upheld a zoning board’s decision granting a variance to allow the replacement of a nonconforming guest house in Wambold v. Village of Southampton ZBA, Index No. 13-21238 (Hon. Arthur G. Pitts). The case involved a recurring but often misunderstood issue:  is a second dwelling on a residential property a nonconforming use (which would require a use variance to authorize its expansion) or a nonconforming structure with a conforming use (which would only require an area variance)?  The zoning board found the latter, and the Supreme Court, following a line of cases in New York on the issue, agreed.  The court explained that an “application for a variance to enlarge the floor area and density seeks an area variance because the essential use of the land is not being changed.”  Esseks, Hefter & Angel, LLP represented the recipients of the variance in the unsuccessful lawsuit brought by an objecting neighbor.

EHA welcomes Christine Perrucci Smith to its real estate practice group.  Christine joins EHA after having spent much of the past decade involved in residential real estate in a variety of roles.   For more information about Christine, review her bio here.

During the 2014 spring semester, EHA’s Managing Partner, Stephen Angel, served as a Visiting Professor with the Faculty of Law at the University of Debrecen, in Debrecen, Hungary. Mr. Angel taught a two-week course on Constitutional Issues Before the U. S. Supreme Court, from April 8th to the 17th.

The Supreme Court, Suffolk County has rejected a prior lawyer’s claim of entitlement to a broad contingency fee because his retainer agreement did not clearly provide for an award under the circumstances, in Moore v. Trent, Suff. Index No. 12-35962.  The attorney in question had an originally been retained by several neighbors, including the defendants, in connection with an anticipated action against the Town of Riverhead over flooding caused to their properties on Hortons Lane.  The attorney’s retainer agreement contained some inconsistencies but included a provision for a 20% contingency on any “award” obtained.  Rather than sue the town for damages, the defendants ended up negotiating a sale of their properties to the town, at which point the attorney claimed entitlement to 20% of the entire purchase price as his contingency fee.  The Supreme Court (Hon. Andrew G. Tarantino, Jr.) rejected the claim for the contingency fee on the basis that the agreement did not clearly contemplate a contingency under the circumstances of a sale.

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.”