Real Property Law

Summary Judgment Denied to Judgment Lienor

Philip v. Zanani

NYLJ 11/24/09, p. 38, col. 1

AppDiv, Second Dept.

(memorandum opinion).

In an action for a judgment declaring that real property is free of a judgment lien, lienor appealed from a Supreme Court order denying his motion for summary judgment and cancelling his notice of pendency. The Appellate Division affirmed, holding that question of fact remained about whether the judgment is enforceable against the property.

Philip and White owned property as tenants in common. In the course of a partition action, they agreed to a buyout procedure, but continued to litigate the value of the property. Lienor represented White in the partition action until White discharged him. Lienor then obtained a judgment against White for unpaid legal fees, and docketed the judgment. Subsequently, in the partition action, Supreme Court determined the value of the property, and Philip bought out White's interest, which was conveyed to Philip pursuant to a sheriff's deed. Philip then brought this action seeking a judgment that the property was free of lienor's judgment lien. Lienor contended that the conveyance to Philip should be set aside on the ground that the conveyance was fraudulent and for inadequate consideration. Supreme Court denied lienor's summary judgment motion.

In affirming, the Appellate Division agreed with lienor that no transfer of an interest of a judgment debtor in real property is effective against a judgment creditor from the time of the docketing of a judgment, but concluded that a question of fact remained about whether the judgment lien ' which was enforceable against the property only up to White's interest in the property ' was actually enforceable against the property. The court also held that Supreme Court had properly awarded summary judgment to Philip on the fraud claims, noting that Philip had established a prima facie case that the conveyance from White to Philip was made for fair consideration, with the legitimate intention of effectuating the buyout agreement, and was not made to hinder lienor's enforcement of his judgment. Lienor had failed to raise a triable issue of fact in opposition.

No Basis for Fair Housing Act Claim

Jenkins v. Eaton

NYLJ 12/2/09, p. 31, col. 1

U.S.Dist.Ct., E.D.N.Y.

(Garaufis, J.)

In an action by homeowner against a property owners association contending that the association violated the Fair Housing Act and the common law by issuing violations for discriminatory reasons, the association sought summary judgment. The court granted the summary judgment motion, holding that homeowner had not demonstrated any causal connection between homeowner's rental to African Americans and the actions of the association.

Homeowner purchased a two-family residence in Forest Hills Gardens. In violation of restrictive covenants and the building's certificate of occupancy, she converted the home int a three-family residence. The property owners association denied parking decals to homeowner's tenants, and reported the violations with the City Register. The Department of Buildings then brought proceedings against property owner for violating the certificate of occupancy. Homeowner then brought this action, contending that the association's actions were a retaliation for her rental of units to African-American tenants. The association sought summary judgment.

In awarding summary judgment to the association, the court emphasized the association's history of actively, even obsessively, enforcing restrictive covenants on all unit owners. The court noted that the association had established that the architectural violations upon which it acted were based on the association's construction of the restrictive covenants, not on any discriminatory motive. The court also observed that the enforcement mechanism ' denial of parking decals ' was consistent with the association's response to other violations. As a result, the court concluded that homeowner had demonstrated no evidence of causation sufficient to avoid summary judgment.

Neighboring Owner Had No Right to Build Dock on Non-Navigable Lake

Dale v. Chishom

NYLJ 11/12/09, p. 33, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an action by lake owner for trespass, the lake owner appealed from Supreme Court's denial of her summary judgment motion. The Appellate Division reversed, holding that because the lake was not navigable, neighboring owner had no right to build a dock on the lake.

Since 1989, landowner has owned a parcel of real property which includes a lake. A neighbor owns property adjoining the lake, and also has a deeded privilege to use the lake for bathing, boating, fishing, ice skating, and other outdoor sports. That privilege excludes the right to use power boats on the lake. When neighbor installed a dock on the lake shore, lake owner brought this trespass action, seeking damages from neighbor. Supreme Court denied lake owner's summary judgment motion, concluding that there were questions of fact about whether the lake was navigable. Lake owner appealed.

In reversing, the Appellate Division concluded that lake owner had made a prima facie showing that the lake was not navigable, and that neighbor's assertions that the lake could be used for recreational canoeing and kayaking would be insufficient, even if proven, to overcome lake owner's showing that the lake was not navigable. The court held that the body of water must have some capacity for transport in order for it to be treated as a navigable body of water. Because the lake was not navigable, neighbor had no right to build the dock, and lake owner was entitled to summary judgment.

COMMENT

At common law, a riparian owner has the limited rights to use a navigable waterway abutting its property for fishing, bathing, or recreational purposes, and to access the navigable portion of the waterway by building a structure that facilitates access. (See Town of Hempstead v Oceanside Yacht Harbor, 38 A.D.2d 263; see also Tiffany v. Oyster Bay, 209 N.Y. 1). However, a riparian owner's exercise of his rights cannot infringe upon a governmental entity's rights in the waterway or obstruct the navigable portion of the waterway. For example, in Haher's Sodus Point Bait Shop, Inc. v. Wigle, 139 A.D.2d 950, the village owning a waterway denied an application by riparian owner for a special permit to maintain and expand dockage along the waterway. Riparian owner had built docks extending over an acre and a half into a public waterway. The court upheld the village's denial, forcing the riparian owner to decrease its current dockage. The court held the docks extended beyond the scope of riparian owner's rights because the docks inhibited village's ability to preserve public access to the waterway and obstructed the navigable portion of the waterway.

If a waterway is not navigable, a riparian owner is presumed to own title to the land under water running from the shoreline of its property to the center of the waterway, granting the riparian owner full property rights consistent with New York property laws. (See Gouverneur v. National Ice Co., 134 N.Y. 355; see also Knapp v. Hughes, 25 A.D.3d 886) However, a riparian owner has no rights in the waterway when its deed expresses that the property's boundary only runs to the shoreline. For instance, in Knapp v. Hughes, landowners of the western shore of a pond, whose deed conveyed ownership of land under the pond, sued neighbors who engaged in recreational activities in the pond for trespass. Although neighbors also claimed title to the land under water, the court held that neighbors had no riparian rights to use the pond (other than whatever rights they might have acquired by prescription) because their deed described neighbors' property as running to the “edge of the pond.”

In Dale v. Chisholm, plaintiff had full ownership rights in the entire body of a non-navigable lake. As a result, defendant, despite owning lakefront property, had no rights to use or access the lake absent a deeded privilege granting such rights. It appears that after Dale, for a waterfront landowner to build a dock in a privately owned, non-navigable waterway, landowner must have an easement explicitly granting the right to build a dock.

Summary Judgment Denied to Judgment Lienor

Philip v. Zanani

NYLJ 11/24/09, p. 38, col. 1

AppDiv, Second Dept.

(memorandum opinion).

In an action for a judgment declaring that real property is free of a judgment lien, lienor appealed from a Supreme Court order denying his motion for summary judgment and cancelling his notice of pendency. The Appellate Division affirmed, holding that question of fact remained about whether the judgment is enforceable against the property.

Philip and White owned property as tenants in common. In the course of a partition action, they agreed to a buyout procedure, but continued to litigate the value of the property. Lienor represented White in the partition action until White discharged him. Lienor then obtained a judgment against White for unpaid legal fees, and docketed the judgment. Subsequently, in the partition action, Supreme Court determined the value of the property, and Philip bought out White's interest, which was conveyed to Philip pursuant to a sheriff's deed. Philip then brought this action seeking a judgment that the property was free of lienor's judgment lien. Lienor contended that the conveyance to Philip should be set aside on the ground that the conveyance was fraudulent and for inadequate consideration. Supreme Court denied lienor's summary judgment motion.

In affirming, the Appellate Division agreed with lienor that no transfer of an interest of a judgment debtor in real property is effective against a judgment creditor from the time of the docketing of a judgment, but concluded that a question of fact remained about whether the judgment lien ' which was enforceable against the property only up to White's interest in the property ' was actually enforceable against the property. The court also held that Supreme Court had properly awarded summary judgment to Philip on the fraud claims, noting that Philip had established a prima facie case that the conveyance from White to Philip was made for fair consideration, with the legitimate intention of effectuating the buyout agreement, and was not made to hinder lienor's enforcement of his judgment. Lienor had failed to raise a triable issue of fact in opposition.

No Basis for Fair Housing Act Claim

Jenkins v. Eaton

NYLJ 12/2/09, p. 31, col. 1

U.S.Dist.Ct., E.D.N.Y.

(Garaufis, J.)

In an action by homeowner against a property owners association contending that the association violated the Fair Housing Act and the common law by issuing violations for discriminatory reasons, the association sought summary judgment. The court granted the summary judgment motion, holding that homeowner had not demonstrated any causal connection between homeowner's rental to African Americans and the actions of the association.

Homeowner purchased a two-family residence in Forest Hills Gardens. In violation of restrictive covenants and the building's certificate of occupancy, she converted the home int a three-family residence. The property owners association denied parking decals to homeowner's tenants, and reported the violations with the City Register. The Department of Buildings then brought proceedings against property owner for violating the certificate of occupancy. Homeowner then brought this action, contending that the association's actions were a retaliation for her rental of units to African-American tenants. The association sought summary judgment.

In awarding summary judgment to the association, the court emphasized the association's history of actively, even obsessively, enforcing restrictive covenants on all unit owners. The court noted that the association had established that the architectural violations upon which it acted were based on the association's construction of the restrictive covenants, not on any discriminatory motive. The court also observed that the enforcement mechanism ' denial of parking decals ' was consistent with the association's response to other violations. As a result, the court concluded that homeowner had demonstrated no evidence of causation sufficient to avoid summary judgment.

Neighboring Owner Had No Right to Build Dock on Non-Navigable Lake

Dale v. Chishom

NYLJ 11/12/09, p. 33, col. 4

AppDiv, Second Dept.

(memorandum opinion)

In an action by lake owner for trespass, the lake owner appealed from Supreme Court's denial of her summary judgment motion. The Appellate Division reversed, holding that because the lake was not navigable, neighboring owner had no right to build a dock on the lake.

Since 1989, landowner has owned a parcel of real property which includes a lake. A neighbor owns property adjoining the lake, and also has a deeded privilege to use the lake for bathing, boating, fishing, ice skating, and other outdoor sports. That privilege excludes the right to use power boats on the lake. When neighbor installed a dock on the lake shore, lake owner brought this trespass action, seeking damages from neighbor. Supreme Court denied lake owner's summary judgment motion, concluding that there were questions of fact about whether the lake was navigable. Lake owner appealed.

In reversing, the Appellate Division concluded that lake owner had made a prima facie showing that the lake was not navigable, and that neighbor's assertions that the lake could be used for recreational canoeing and kayaking would be insufficient, even if proven, to overcome lake owner's showing that the lake was not navigable. The court held that the body of water must have some capacity for transport in order for it to be treated as a navigable body of water. Because the lake was not navigable, neighbor had no right to build the dock, and lake owner was entitled to summary judgment.

COMMENT

At common law, a riparian owner has the limited rights to use a navigable waterway abutting its property for fishing, bathing, or recreational purposes, and to access the navigable portion of the waterway by building a structure that facilitates access. (See Town of Hempstead v Oceanside Yacht Harbor, 38 A.D.2d 263; see also Tiffany v. Oyster Bay, 209 N.Y. 1). However, a riparian owner's exercise of his rights cannot infringe upon a governmental entity's rights in the waterway or obstruct the navigable portion of the waterway. For example, in Haher's Sodus Point Bait Shop, Inc. v. Wigle, 139 A.D.2d 950, the village owning a waterway denied an application by riparian owner for a special permit to maintain and expand dockage along the waterway. Riparian owner had built docks extending over an acre and a half into a public waterway. The court upheld the village's denial, forcing the riparian owner to decrease its current dockage. The court held the docks extended beyond the scope of riparian owner's rights because the docks inhibited village's ability to preserve public access to the waterway and obstructed the navigable portion of the waterway.

If a waterway is not navigable, a riparian owner is presumed to own title to the land under water running from the shoreline of its property to the center of the waterway, granting the riparian owner full property rights consistent with New York property laws. ( See Gouverneur v. National Ice Co., 134 N.Y. 355; see also Knapp v. Hughes, 25 A.D.3d 886) However, a riparian owner has no rights in the waterway when its deed expresses that the property's boundary only runs to the shoreline. For instance, in Knapp v. Hughes, landowners of the western shore of a pond, whose deed conveyed ownership of land under the pond, sued neighbors who engaged in recreational activities in the pond for trespass. Although neighbors also claimed title to the land under water, the court held that neighbors had no riparian rights to use the pond (other than whatever rights they might have acquired by prescription) because their deed described neighbors' property as running to the “edge of the pond.”

In Dale v. Chisholm, plaintiff had full ownership rights in the entire body of a non-navigable lake. As a result, defendant, despite owning lakefront property, had no rights to use or access the lake absent a deeded privilege granting such rights. It appears that after Dale, for a waterfront landowner to build a dock in a privately owned, non-navigable waterway, landowner must have an easement explicitly granting the right to build a dock.