Real Property Law

Notice Of Tax Foreclosure Constitutionally Adequate

Matter of Harner v. County of Tioga

NYLJ 7/1/05, p. 19, col. 1

Court of Appeals

(Opinion by Ciparick, J.)

In an article 78 proceeding by former landowner seeking to set aside a tax deed, the county appealed from the Appellate Division's reversal of Supreme Court's dismissal of the petition. The Court of Appeals reversed, holding that the county provided constitutionally adequate notice of the tax foreclosure proceeding.

In 1982, landowner purchased the subject single-family residence. Eight years later, he agreed to convey the property to the Winnies by land contract, and the Winnies agreed to pay all real property taxes. Landowner remained owner of record. In 1993, the tax rolls listed landowner's mailing address in another county, but in 1994, the rolls were amended to change his address to c/o the Winnies at a local post office box.

In 1996 and 1998, the county commenced tax foreclosure proceedings, mailing notice to the local post office box. Both times, the property was redeemed. In 2002, the county again instituted foreclosure proceedings, and provided two notices, by certified mail and by first-class mail, to the owner at the post office box address. The county later amended its petition, and again provided two notices, one by certified mail, and one by first-class mail. The post office returned both certified mailings as “unclaimed,” but did not return the first-class mailings. When no one redeemed, the county acquired title. Landowner then brought this article 78 proceeding, challenging the adequacy of the notice. Although the Supreme Court dismissed the proceeding, the Appellate Division reversed, concluding that return of the certified mailings as “unclaimed” alerted the county to the possibility of inadequate notice and required the county to make a reasonable search of the public records.

In reversing, the Court of Appeals held that return of the mailings as “unclaimed” rather than “undeliverable” reasonably could have led the county to conclude that landowner was trying to avoid notice. Moreover, the court noted that landowner had failed to change his address even though, on his own assertions, he had never received a tax bill for the property. The court held that landowner had acquiesced in the address change. He bore the responsibility to update his address, and his failure to do so did not render the county's efforts to provide notice constitutionally infirm.

Recording Act Protects Mortgagee

Washington Mutual Bank v. Peak Health Club, Inc.

NYLJ 6/28/05, p. 19, col. 3

Supreme Ct., Nassau Cty

(Warshawsky, J.)

In Merrill Lunch's action to foreclose its mortgage, the company sought summary judgment on the issue of liability. The court granted Merrill Lynch's motion, holding that Merrill Lynch was protected by the recording act.

In 1998, the prior owner sold the subject premises to East Coast, which in turn executed a mortgage to Dime to secure a loan of $3.25 million. Dime subsequently became Washington Mutual. That mortgage, however, was not recorded until December 2003. In the interim, however, Merrill Lynch made a loan to Peak in the amount of $5.125 million. East Coast guaranteed that loan, which was secured by a mortgage on the subject premises. Merrill Lynch recorded its mortgage before December 2003. When Peak and the guarantors defaulted on the mortgage, Merrill Lynch brought this foreclosure action, and sought summary judgment. East Coast and Peak both asserted that the Washington Mutual mortgage enjoyed priority over the Merrill Lynch mortgage.

In granting summary judgment to Merrill Lynch, the court relied on RPL Section 291, which provides that a conveyance is void against a subsequent good faith purchaser for a valuable consideration whose conveyance is first duly recorded. Here, Merrill Lynch gave valuable consideration, took in good faith, and recorded before the East Coast conveyance and the Washington Mutual mortgage. Moreover, Merrill Lynch required East Coast to approve and guarantee the loan, satisfying any duty Merrill Lynch might have had to inquire of East Coast's rights. As a result, Merrill Lynch was entitled to summary judgment on the issue of liability.

Duty to Maintain Easement Does Not Extend to Improvement of Servient Parcel

Mangusi v. Town of Mount Pleasant

NYLJ 7/5/05, p. 33, col. 5

AppDiv, Second Dept

(memorandum opinion)

In landowner's action to recover damages for trespass and private nuisance, the town appealed from the Supreme Court's grant of partial summary judgment to landowner declaring that the town had a duty to repair the drainage easement it held over landowner's land. The Appel-late Division modified and awarded summary judgment to the town, concluding that the town had no duty to dredge the brook that provided drainage across landowner's parcel.

The town held a 15-foot-wide drainage easement over landowner's parcel. A brook ran through the 15-foot-wide strip and, as a result of natural phenomena, flooded landowner's parcel. Landowner brought this action, contending that the town had trespassed on its land, had committed a nuisance, and had failed to maintain the easement adequately by failing to dredge the brook. Supreme Court declared that the town had a duty to repair the easement, and the town appealed.

In modifying, the Appellate Division first held that the trespass claim could not succeed because the town had not exceeded the bounds of its easement, and the nuisance claim could not succeed because any overflow of the brook was caused not by the town's conduct but by natural phenomena. The court then acknowledged that the town had a duty to maintain its easement, but held that the town's duty to maintain did not extend to improvement of landowner's parcel. Here, because the only benefit of dredging the brook would accrue to landowner's property, the town had no duty to dredge.

COMMENT

Absent an agreement with the servient owner specifying otherwise, a dominant owner who desires to use an easement for his benefit alone is responsible for the easement's maintenance and repair. In Schenectady Railway Co. v. Greene, 227 A.D. 11, aff'd without opinion, 257 N.Y. 610, a railroad company which held an easement over a bridge tried to compel a representative of the bridge owner to make repairs to the piers of the bridge. The court held that if the railroad desired to use the bridge, it was responsible for its repairs. Likewise, in Streuber v. E.E. Meacham & Son, 163 A.D. 574, a guest of the dominant owner brought an action against the servient owner because a road and bridge were in disrepair. The court held that the grantee of an easement, not the grantor, was bound to keep the easement in repair for his use, and the use of his guests.

While a dominant owner has the right to maintain his easement, the servient owner has a right to have the dominant owner refrain from interfering with his land more than is necessary for the reasonable use of the easement. Thus, in Myers v. Baker, 45 A.D. 26, a servient owner was justified in removing barriers installed by the dominant owner which would operate to enlarge the easement. Similarly, in Tucci v. Salzhauer, 69 Misc. 2d 226, rev'd on other grounds, 40 A.D.2d 712, aff'd without opinion, the dominant owner held an easement for a pedestrian walkway over the servient owner's underdeveloped land. The servient owner was entitled to have the easement maintained in such a way that it was consistent with the rest of the land, subject to the dominant owner's reasonable use. While the dominant owner could remove brush and other obstructions from the path, he could not pave it.

Although the servient owner has no burden to maintain or repair an easement used solely by the dominant owner, the servient owner is responsible for his share of the repairs when the easement is used by both the dominant and the servient owner. In Janes v. Politis, 79 Misc.2d 941, a septic tank system rested on the servient owner's land and was shared with the dominant owner, who held an easement to use it. The tank consistently overflowed, but the dominant owner refused to contribute to the costs of maintenance. The court held that since maintaining the easement would benefit both owners, the costs should be shared, and ordered the dominant owner to reimburse the servient owner. However, if the maintenance or repair of an easement would only benefit the servient owner, the dominant owner has no duty to make the repairs. In Bachrach v. E. Seidenberg, Steifel & Co., 54 Misc. 59, a case with some similarities to Mangusi, the dominant owner was not required to fireproof a boiler room over which he held an easement where the fireproofing would only benefit the servient owner and allow him to continue to operate a tenement without violations.

If an easement used solely by the dominant owner is not maintained, and a third party is injured, liability will fall on the dominant owner rather than the servient owner. In Raksin v. Crown-Kingston Realty Assoc., 254 A.D.2d 472, the court held that the servient owner was not responsible for clearing an alleyway easement of snow and ice, and therefore was not liable for a neighboring homeowner's fall. Similarly, in Tagle v. Jakob, 275 A.D.2d 573, when the child of a guest at the servient owner's home climbed a tree and was injured by utility wires running through, the servient owner was not responsible, as it was the utility company's duty to maintain their easement in a safe way.

Party Wall Owner Not Entitled to Undermine Structural Integrity

Gordon v. Park Mad 74 Realty LLC

NYLJ 6/29/05, p. 18, col. 1

Supreme Ct., N.Y. Cty

(Kornreich, J.)

In an action by the owner of a townhouse to enjoin his neighbor from continuing construction work that would encroach on his property, owner sought a preliminary injunction. The court concluded that the owner had raised questions of fact requiring a hearing, noting in particular that construction might appropriately be enjoined if construction work would undermine the structural integrity of a party wall between the premises.

Owner and neighbor each own 20-foot townhouses separated by a 12-inch party wall. Neighbor has begun a multi-million dollar renovation of his townhouse, including installation of a penthouse, which would extend the party wall upward, and an elevator, which requires installation of steel beams into the wall. Owner contends that the construction work has caused cracks in the party wall, which result in penetration of air, noise, and dust penetrating into owner's townhouse. Accordingly, owner sought to enjoin further construction.

In setting the case for a hearing, the court noted that when a party wall separates two houses, each owner owns the wall to his own boundary, subject to an easement of the other to use the party wall. The court noted that on this request for injunctive relief, the balance of equities tended to favor neighbor, who sought to enhance and develop his property at considerable cost. Moreover, the court noted that a party wall, unlike a prescriptive right, is not restricted to the exact limits of previous use. The court, however, concluded that a hearing was necessary to determine whether neighbor's construction was threatening the integrity of owner's house, and whether bricks on his side of the party wall had been replaced by inappropriate material.

COMMENT

Each adjoining owner of a party wall owns so much of the wall as stands on his own property, as well as an easement in the other part of the wall for the support of his own building. 5 East 73rd, Inc. v. 11 East 73rd St. Corp., 16 Misc.2d 49. A co-owner of a party wall has the right to alter or cut into the wall for its own benefit, so long as the alteration does not limit or negatively affect the other owner's use. A co-owner may even encroach upon the other's portion of the wall during alterations if the intrusion is not detrimental to the wall or the other owner's property. In American Railway Express v. Lassen Realty Co., 205 A.D. 238, in order to extend a party wall, one owner was allowed to install beams into the wall, on both his portion and his neighbor's, since the beams would not weaken the wall and the extension of the wall would benefit both owners. Likewise, in Spring Realty Corp. v. Ryan, 206 Misc. 37, one owner could continue to maintain steel beams in the party wall to support his air conditioning unit. However, a co-owner of a party wall may not make alterations that substantially weaken the wall. In Herman v. Hartwood Holding Co., 193 A.D. 115, the court ordered the restoration of a party wall after one owner cut through the wall to build columns for the support of only his building, installed plumbing, and reduced the thickness of the wall, significantly reducing the strength of the wall and use to the other owner.

While an owner of part of a party wall may encroach upon his neighbor's portion for support, he is not entitled to attach anything to his neighbor's portion of the wall. In Berk Fink Realty v. Ershowsky, 116 N.Y.S. 2d 529, the court enjoined one owner from displaying a painted advertisement on his neighbor's side of the party. Similarly, in Sakele Brothers v. Safdie, 302 A.D.2d 20, the court held that the owner of the exposed face of the party wall, on which his neighbor erected a hanging advertisement, was entitled to the licensing fees that his neighbor was receiving for the advertising space.

When a co-owner of a party wall is making alterations, he will not be liable for damages to the wall or the adjoining property, unless they are the result of his manner of construction or the inability of the wall to withstand alterations. Thus, in Negus v. Becker, 143 N.Y. 303, the improving owner was not liable for damage resulting from a collapsed brick wall, as the collapse was accidental and not due to the weakness of the wall. Similarly, in Bicak v. Runde, 78 Misc. 358, when the non-improving owner's home was damaged by the construction work, the owner making alterations was not liable for the damage in the absence of proof that the hammering from construction was excessive and negligent.

When an owner of a party wall is interfering with the other owner's use of the wall or making the wall or adjoining building unsafe, the other owner may seek an injunction. In Varriale v. Brooklyn Edison, 252 N.Y. 222, an owner of one building successfully enjoined the lessee of another from maintaining beams across the entire length of the party wall to anchor an advertisement, as it interfered with her right to expand the wall. Finally, in Schneider v. 44-84 Realty, 169 Misc. 249, one owner began to recklessly demolish his building, but was enjoined from continuing as it would make his co-owner's premises unsafe.

Limit on Contract Vendee Remedies Held Enforceable

Emptage & Associates, Inc. v. Cape Hampton

LLC, NYLJ 6/27/05, p. 32, col. 4

AppDiv, Second Dept

(memorandum opinion)

In contract vendee's action for specific performance of a contract of sale, contract vendee appealed from Supreme Court's denial of its summary judgment motion and grant of seller's motion for summary judgment. The Appellate Division affirmed, holding that the contract provision limiting contract vendee's remedies in case of breach were fully enforceable.

Seller agreed to sell the subject premises to its tenant. Seller subsequently learned that seller was facing financing difficulties, and then contracted to sell the premises to contract vendee, Emptage. The contract with Emptage limited its remedies for breach to acceptance of title with a cloud or return of its down payment. Subsequently, tenant resolved its financing difficulties, and indicated that it wished to close on the premises. Tenant brought an action for specific performance, which seller unsuccessfully sought to have dismissed. At that point, Emptage brought the instant action. Supreme Court granted summary judgment to seller, enforcing the contract provision.

In affirming, the Appellate Division held that a contract provision limiting contract vendee to restoration of the status quo before the contract is fully enforceable as long as the seller who invokes the provision has acted in good faith. Here, the court concluded that seller's efforts to remove the defect in title were reasonable, and that, as a result, seller was entitled to rely on the contract provision.

Notice Of Tax Foreclosure Constitutionally Adequate

Matter of Harner v. County of Tioga

NYLJ 7/1/05, p. 19, col. 1

Court of Appeals

(Opinion by Ciparick, J.)

In an article 78 proceeding by former landowner seeking to set aside a tax deed, the county appealed from the Appellate Division's reversal of Supreme Court's dismissal of the petition. The Court of Appeals reversed, holding that the county provided constitutionally adequate notice of the tax foreclosure proceeding.

In 1982, landowner purchased the subject single-family residence. Eight years later, he agreed to convey the property to the Winnies by land contract, and the Winnies agreed to pay all real property taxes. Landowner remained owner of record. In 1993, the tax rolls listed landowner's mailing address in another county, but in 1994, the rolls were amended to change his address to c/o the Winnies at a local post office box.

In 1996 and 1998, the county commenced tax foreclosure proceedings, mailing notice to the local post office box. Both times, the property was redeemed. In 2002, the county again instituted foreclosure proceedings, and provided two notices, by certified mail and by first-class mail, to the owner at the post office box address. The county later amended its petition, and again provided two notices, one by certified mail, and one by first-class mail. The post office returned both certified mailings as “unclaimed,” but did not return the first-class mailings. When no one redeemed, the county acquired title. Landowner then brought this article 78 proceeding, challenging the adequacy of the notice. Although the Supreme Court dismissed the proceeding, the Appellate Division reversed, concluding that return of the certified mailings as “unclaimed” alerted the county to the possibility of inadequate notice and required the county to make a reasonable search of the public records.

In reversing, the Court of Appeals held that return of the mailings as “unclaimed” rather than “undeliverable” reasonably could have led the county to conclude that landowner was trying to avoid notice. Moreover, the court noted that landowner had failed to change his address even though, on his own assertions, he had never received a tax bill for the property. The court held that landowner had acquiesced in the address change. He bore the responsibility to update his address, and his failure to do so did not render the county's efforts to provide notice constitutionally infirm.

Recording Act Protects Mortgagee

Washington Mutual Bank v. Peak Health Club, Inc.

NYLJ 6/28/05, p. 19, col. 3

Supreme Ct., Nassau Cty

(Warshawsky, J.)

In Merrill Lunch's action to foreclose its mortgage, the company sought summary judgment on the issue of liability. The court granted Merrill Lynch's motion, holding that Merrill Lynch was protected by the recording act.

In 1998, the prior owner sold the subject premises to East Coast, which in turn executed a mortgage to Dime to secure a loan of $3.25 million. Dime subsequently became Washington Mutual. That mortgage, however, was not recorded until December 2003. In the interim, however, Merrill Lynch made a loan to Peak in the amount of $5.125 million. East Coast guaranteed that loan, which was secured by a mortgage on the subject premises. Merrill Lynch recorded its mortgage before December 2003. When Peak and the guarantors defaulted on the mortgage, Merrill Lynch brought this foreclosure action, and sought summary judgment. East Coast and Peak both asserted that the Washington Mutual mortgage enjoyed priority over the Merrill Lynch mortgage.

In granting summary judgment to Merrill Lynch, the court relied on RPL Section 291, which provides that a conveyance is void against a subsequent good faith purchaser for a valuable consideration whose conveyance is first duly recorded. Here, Merrill Lynch gave valuable consideration, took in good faith, and recorded before the East Coast conveyance and the Washington Mutual mortgage. Moreover, Merrill Lynch required East Coast to approve and guarantee the loan, satisfying any duty Merrill Lynch might have had to inquire of East Coast's rights. As a result, Merrill Lynch was entitled to summary judgment on the issue of liability.

Duty to Maintain Easement Does Not Extend to Improvement of Servient Parcel

Mangusi v. Town of Mount Pleasant

NYLJ 7/5/05, p. 33, col. 5

AppDiv, Second Dept

(memorandum opinion)

In landowner's action to recover damages for trespass and private nuisance, the town appealed from the Supreme Court's grant of partial summary judgment to landowner declaring that the town had a duty to repair the drainage easement it held over landowner's land. The Appel-late Division modified and awarded summary judgment to the town, concluding that the town had no duty to dredge the brook that provided drainage across landowner's parcel.

The town held a 15-foot-wide drainage easement over landowner's parcel. A brook ran through the 15-foot-wide strip and, as a result of natural phenomena, flooded landowner's parcel. Landowner brought this action, contending that the town had trespassed on its land, had committed a nuisance, and had failed to maintain the easement adequately by failing to dredge the brook. Supreme Court declared that the town had a duty to repair the easement, and the town appealed.

In modifying, the Appellate Division first held that the trespass claim could not succeed because the town had not exceeded the bounds of its easement, and the nuisance claim could not succeed because any overflow of the brook was caused not by the town's conduct but by natural phenomena. The court then acknowledged that the town had a duty to maintain its easement, but held that the town's duty to maintain did not extend to improvement of landowner's parcel. Here, because the only benefit of dredging the brook would accrue to landowner's property, the town had no duty to dredge.

COMMENT

Absent an agreement with the servient owner specifying otherwise, a dominant owner who desires to use an easement for his benefit alone is responsible for the easement's maintenance and repair. In Schenectady Railway Co. v. Greene, 227 A.D. 11, aff'd without opinion, 257 N.Y. 610, a railroad company which held an easement over a bridge tried to compel a representative of the bridge owner to make repairs to the piers of the bridge. The court held that if the railroad desired to use the bridge, it was responsible for its repairs. Likewise, in Streuber v. E.E. Meacham & Son, 163 A.D. 574, a guest of the dominant owner brought an action against the servient owner because a road and bridge were in disrepair. The court held that the grantee of an easement, not the grantor, was bound to keep the easement in repair for his use, and the use of his guests.

While a dominant owner has the right to maintain his easement, the servient owner has a right to have the dominant owner refrain from interfering with his land more than is necessary for the reasonable use of the easement. Thus, in Myers v. Baker, 45 A.D. 26, a servient owner was justified in removing barriers installed by the dominant owner which would operate to enlarge the easement. Similarly, in Tucci v. Salzhauer, 69 Misc. 2d 226, rev'd on other grounds, 40 A.D.2d 712, aff'd without opinion, the dominant owner held an easement for a pedestrian walkway over the servient owner's underdeveloped land. The servient owner was entitled to have the easement maintained in such a way that it was consistent with the rest of the land, subject to the dominant owner's reasonable use. While the dominant owner could remove brush and other obstructions from the path, he could not pave it.

Although the servient owner has no burden to maintain or repair an easement used solely by the dominant owner, the servient owner is responsible for his share of the repairs when the easement is used by both the dominant and the servient owner. In Janes v. Politis, 79 Misc.2d 941, a septic tank system rested on the servient owner's land and was shared with the dominant owner, who held an easement to use it. The tank consistently overflowed, but the dominant owner refused to contribute to the costs of maintenance. The court held that since maintaining the easement would benefit both owners, the costs should be shared, and ordered the dominant owner to reimburse the servient owner. However, if the maintenance or repair of an easement would only benefit the servient owner, the dominant owner has no duty to make the repairs. In Bachrach v. E. Seidenberg, Steifel & Co., 54 Misc. 59, a case with some similarities to Mangusi, the dominant owner was not required to fireproof a boiler room over which he held an easement where the fireproofing would only benefit the servient owner and allow him to continue to operate a tenement without violations.

If an easement used solely by the dominant owner is not maintained, and a third party is injured, liability will fall on the dominant owner rather than the servient owner. In Raksin v. Crown-Kingston Realty Assoc., 254 A.D.2d 472, the court held that the servient owner was not responsible for clearing an alleyway easement of snow and ice, and therefore was not liable for a neighboring homeowner's fall. Similarly, in Tagle v. Jakob, 275 A.D.2d 573, when the child of a guest at the servient owner's home climbed a tree and was injured by utility wires running through, the servient owner was not responsible, as it was the utility company's duty to maintain their easement in a safe way.

Party Wall Owner Not Entitled to Undermine Structural Integrity

Gordon v. Park Mad 74 Realty LLC

NYLJ 6/29/05, p. 18, col. 1

Supreme Ct., N.Y. Cty

(Kornreich, J.)

In an action by the owner of a townhouse to enjoin his neighbor from continuing construction work that would encroach on his property, owner sought a preliminary injunction. The court concluded that the owner had raised questions of fact requiring a hearing, noting in particular that construction might appropriately be enjoined if construction work would undermine the structural integrity of a party wall between the premises.

Owner and neighbor each own 20-foot townhouses separated by a 12-inch party wall. Neighbor has begun a multi-million dollar renovation of his townhouse, including installation of a penthouse, which would extend the party wall upward, and an elevator, which requires installation of steel beams into the wall. Owner contends that the construction work has caused cracks in the party wall, which result in penetration of air, noise, and dust penetrating into owner's townhouse. Accordingly, owner sought to enjoin further construction.

In setting the case for a hearing, the court noted that when a party wall separates two houses, each owner owns the wall to his own boundary, subject to an easement of the other to use the party wall. The court noted that on this request for injunctive relief, the balance of equities tended to favor neighbor, who sought to enhance and develop his property at considerable cost. Moreover, the court noted that a party wall, unlike a prescriptive right, is not restricted to the exact limits of previous use. The court, however, concluded that a hearing was necessary to determine whether neighbor's construction was threatening the integrity of owner's house, and whether bricks on his side of the party wall had been replaced by inappropriate material.

COMMENT

Each adjoining owner of a party wall owns so much of the wall as stands on his own property, as well as an easement in the other part of the wall for the support of his own building. 5 East 73rd, Inc. v. 11 East 73rd St. Corp., 16 Misc.2d 49. A co-owner of a party wall has the right to alter or cut into the wall for its own benefit, so long as the alteration does not limit or negatively affect the other owner's use. A co-owner may even encroach upon the other's portion of the wall during alterations if the intrusion is not detrimental to the wall or the other owner's property. In American Railway Express v. Lassen Realty Co., 205 A.D. 238, in order to extend a party wall, one owner was allowed to install beams into the wall, on both his portion and his neighbor's, since the beams would not weaken the wall and the extension of the wall would benefit both owners. Likewise, in Spring Realty Corp. v. Ryan, 206 Misc. 37, one owner could continue to maintain steel beams in the party wall to support his air conditioning unit. However, a co-owner of a party wall may not make alterations that substantially weaken the wall. In Herman v. Hartwood Holding Co., 193 A.D. 115, the court ordered the restoration of a party wall after one owner cut through the wall to build columns for the support of only his building, installed plumbing, and reduced the thickness of the wall, significantly reducing the strength of the wall and use to the other owner.

While an owner of part of a party wall may encroach upon his neighbor's portion for support, he is not entitled to attach anything to his neighbor's portion of the wall. In Berk Fink Realty v. Ershowsky, 116 N.Y.S. 2d 529, the court enjoined one owner from displaying a painted advertisement on his neighbor's side of the party. Similarly, in Sakele Brothers v. Safdie, 302 A.D.2d 20, the court held that the owner of the exposed face of the party wall, on which his neighbor erected a hanging advertisement, was entitled to the licensing fees that his neighbor was receiving for the advertising space.

When a co-owner of a party wall is making alterations, he will not be liable for damages to the wall or the adjoining property, unless they are the result of his manner of construction or the inability of the wall to withstand alterations. Thus, in Negus v. Becker, 143 N.Y. 303, the improving owner was not liable for damage resulting from a collapsed brick wall, as the collapse was accidental and not due to the weakness of the wall. Similarly, in Bicak v. Runde, 78 Misc. 358, when the non-improving owner's home was damaged by the construction work, the owner making alterations was not liable for the damage in the absence of proof that the hammering from construction was excessive and negligent.

When an owner of a party wall is interfering with the other owner's use of the wall or making the wall or adjoining building unsafe, the other owner may seek an injunction. In Varriale v. Brooklyn Edison, 252 N.Y. 222, an owner of one building successfully enjoined the lessee of another from maintaining beams across the entire length of the party wall to anchor an advertisement, as it interfered with her right to expand the wall. Finally, in Schneider v. 44-84 Realty, 169 Misc. 249, one owner began to recklessly demolish his building, but was enjoined from continuing as it would make his co-owner's premises unsafe.

Limit on Contract Vendee Remedies Held Enforceable

Emptage & Associates, Inc. v. Cape Hampton

LLC, NYLJ 6/27/05, p. 32, col. 4

AppDiv, Second Dept

(memorandum opinion)

In contract vendee's action for specific performance of a contract of sale, contract vendee appealed from Supreme Court's denial of its summary judgment motion and grant of seller's motion for summary judgment. The Appellate Division affirmed, holding that the contract provision limiting contract vendee's remedies in case of breach were fully enforceable.

Seller agreed to sell the subject premises to its tenant. Seller subsequently learned that seller was facing financing difficulties, and then contracted to sell the premises to contract vendee, Emptage. The contract with Emptage limited its remedies for breach to acceptance of title with a cloud or return of its down payment. Subsequently, tenant resolved its financing difficulties, and indicated that it wished to close on the premises. Tenant brought an action for specific performance, which seller unsuccessfully sought to have dismissed. At that point, Emptage brought the instant action. Supreme Court granted summary judgment to seller, enforcing the contract provision.

In affirming, the Appellate Division held that a contract provision limiting contract vendee to restoration of the status quo before the contract is fully enforceable as long as the seller who invokes the provision has acted in good faith. Here, the court concluded that seller's efforts to remove the defect in title were reasonable, and that, as a result, seller was entitled to rely on the contract provision.