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.

The Supreme Court, Suffolk County has dismissed a neighbor’s action claiming “adverse possession” over a strip of land in Birch Tree Partners LLC v. Windsor Digital Studio LLC, Index No. 09-25251. The action involved a portion of a large estate located on Further Lane in the Town of East Hampton, and the neighbor plaintiff had claimed that its alleged maintenance of the property, coupled with its predecessor’s maintenance of the property, entitled it to claim ownership of the land through adverse possession.  The Supreme Court granted the defendant summary judgment dismissing the action on the ground that the plaintiff had conceded its lack of ownership by previously offering to purchase the property.

The Supreme Court, Suffolk County has upheld a prospective tenant’s action for specific performance of a 49-year commercial lease in Flying Point, LLC v. Killybegs Realty Corp., Index No. 03-2521. The lease at issue involved a parcel of vacant land in Southampton, New York.  The owner of the property, after negotiating and then signing the lease documents, denied that the signatory had any authority to bind the owner as the landlord in the lease.  After conducting a trial, the court found the owners’ testimony to be not credible, upheld the prospective tenant’s action, and concluded that the lease was enforceable.

The U.S. Court of Appeals for the Second Circuit has vacated a District Court decision regarding the interpretation of restrictive covenants in Petrello v. White, 10-2744-cv. The case involved the meaning of a restrictive covenant that required two properties to be held by “a common owner of record.” The District Court had found that the covenant required 100% identical ownership for both properties, but the appellants argued that the covenant only required at least one common owner, but did not preclude additional non-common owners.  The Court of Appeals analyzed New York’s rules governing the interpretation of restrictive covenants, found the appellants’ proposed interpretation to be plausible, and remanded the case back to the District Court for further consideration in light of extrinsic evidence.