July 28, 2021 — The Supreme Court, Suffolk County (Hon. William J. Condon) has dismissed an action for specific performance of a $22 million real estate agreement, in Real-X Realty, LLC v. Crest Bellport, LLC, Suffolk Index No. 606831-2021.   The property was owned by two co-owners, each with a 50% interest.  The prospective purchaser brought an action to to enforce a contract that was signed only by one of the co-owners, even though the signature line for the second owner was left blank.  The court found that the partially-signed document was unenforceable, “because the signature of only one party to a non-severable contract is insufficient to create an enforceable agreement that would bind all.”

June 16, 2021 — The Supreme Court, Suffolk County (Hon. Joseph C. Pastoressa) has granted summary judgment and awarded the seller of a hotel property the downpayment of $360,000 as liquidated damages, in Front & Third, LLC v. Blue Flag Capital, LLC, Index No. 606169/2020.  The decision involved an application of the rules regarding the establishment of a “time of essence” closing in New York.  As the court found, the seller in this case properly established a time of essence closing by providing the purchaser with notice and a reasonable time to close.  The purchaser’s failure to appear at the closing therefore amounted to a default, entitling the seller to retain the downpayment.

The firm is pleased to announce that Elizabeth L. Baldwin has joined the firm as counsel..  Beth brings extensive municipal, land use, and real estate experience to the firm, having served as both Village Attorney for the Village of East Hampton and Assistant Town Attorney for the Town of East Hampton.  During her 12 years as a municipal attorney, Beth counseled two Village of East Hampton administrations through the beginning and height of the Covid-19 pandemic, and she served two Town of East Hampton administrations, representing the Town’s Zoning Board of Appeals, successfully defending over a dozen Article 78 proceedings, representing the Town in most of the Town’s real estate transactions, and drafting legislative initiatives for the Town Board.  Beth will be working with the firm’s municipal, land use, and real estate practice groups.

April 21, 2021 — Six years in the making, the Village of Westhampton Beach began construction of a new municipal sewer system to serve its downtown Main Street.  The Village’s system will connect to the County’s wastewater treatment facility located at Gabreski Airport, furthering the goal of shared services and saving millions of dollars in construction costs.

The new sewer system will benefit water quality by eliminating 5,000 pounds of nitrogen from its bay.  It will also provide new opportunities for the Village’s downtown, including  apartments above Main Street shops and expanded dining opportunities.

The Village successfully pursued and obtained nearly $11 million in grants from the NYS DEC, the NYS Environmental Facilities Corporation and the Southampton Town Community Preservation Fund, covering most of the costs of construction.

The new sewer system project follows and builds upon the benefits from the recently-completed downtown revitalization project.  As the Village’s Mayor, Maria Z. Moore, noted, “All of the environmental quality features incorporated into our recently completed Main Street Reconstruction Project including new drainage, hydrodynamic separators to filter rain runoff, permeable pavers and LED lighting, combined with the positive effects we can expect from the sewer system will go a long way towards improved water quality and protecting our environment.”

EHADP counsel, Stephen R. Angel and Anthony C. Pasca, who have served as Village Attorneys since 2014, helped shepherd the Village through both the downtown revitalization and sewer system projects.

The firm is pleased to announce that James Spiess, Esq., and McNulty-Spiess, P.C., have joined EHADP as “of counsel,” and will be now be working directly from the firm’s Main Office in Riverhead.

McNulty-Spiess, P.C. is one of the oldest surviving Eastern Long Island law firms, tracing its origins to 1959, when John McNulty joined the Riverhead practice of Gordon Lipetz.  James Spiess joined Mr. McNulty’s firm in 1983 and has been a principal thereof since 1987.  He has been practicing on the East End for nearly forty years, primarily in the areas of estate and trust litigation, commercial disputes, and real estate litigation.  Over that time, Jim and McNulty-Spiess, P.C often worked on the same cases with EHADP, which traces its origins to 1965, when William Esseks joined a predecessor firm and began working from the same Riverhead Office that the firm still maintains today.  The two historic firms have, over many decades, been both adversaries and co-counsel.

As of February 1, 2021, Jim and Mc-Nulty-Spiess, P.C. have united with EHADP through an “of counsel” association and integration of offices.  Jim can now be reached either through his long-term McNulty-Spiess number (631-727-8200) or EHADP’s number (631-369-1700), and he works at EHADP’s Riverhead office located at 108 East Main Street.  Jim’s personal bio can be viewed here.

After eleven years of litigation, the Appellate Division, Second Department, has upheld the claims of five homeowner association plaintiffs to own the ocean beach areas adjacent to their developments, and has prohibited the Trustees and Town of East Hampton from issuing beach driving and parking permits over those beaches, in Seaview at Amagansett v. Trustees of Freeholders and Commonalty of Town of East Hampton.

The area in question, commonly referred to as the “truck beach,” was part of large tract of land that had been purchased from the Trustees by Arthur Benson in 1882.  The five homeowner associations were successors to a portion of Arthur Benson’s estate, including most of the beach area in question.  Though the beach has been privately owned since 1882, the Trustees and Town of East Hampton claimed, over a century later, that they had the right to allow the general public to use this private property for beach driving and parking.  In 2009, when the intensity of the parking and driving became a serious health and safety hazard for the homeowner associations, they joined together and commenced an action seeking a judgment declaring that they are the lawful owners of the beach area in question and that the Trustees and Town of East Hampton had no right to allow the general public onto this private property for beach driving and parking.  The case reached trial in 2016, and the trial court originally ruled in favor of the Trustees and Town.

On appeal, the Appellate Division disagreed with the trial court and concluded that the plaintiffs did in fact prove that they owned the beach areas in question and were entitled to an injunction prohibiting the beach driving and parking being allowed by the Trustees and Town.  With respect to the question of ownership, the Appellate Division found that the plaintiffs “produced all of the deeds in those respective chains of title, beginning with the Benson Deed, which is common to all of the homeowners associations’ chains of title,” and the plaintiffs therefore “established… that they owned title in fee simple absolute to the disputed portion of their respective properties.”

The Appellate Division also rejected the Trustees’ and Town’s theory that the beach driving and parking could be justified under a certain “reservation” in the original 1882 deed, which “reserved to the inhabitants of the Town of East Hampton the right to land fish boats and netts to spread the netts on the adjacent sands and care for the fish and material as has been customary heretofore…”  “Rather,” the Court reasoned, “the reservation is in the nature of an easement allowing the public to use the homeowners associations’ portion of the beach only for fishing and fishing-related purposes, as contemplated by the plain wording of the reservation.”  As a result, the Court concluded that “the reservation does not confer upon the Town and Trustees lawful governmental or regulatory power to issue permits allowing members of the public to operate and park vehicles on any portion of the beach owned by the homeowners associations.”

The Appellate Division remanded the matter back to the trial court for the entry of a final judgment against the Town and Trustees.

The Appellate Division, Second Department has upheld a Zoning Board’s dismissal of a neighbor’s appeal from a building permit and certificate of occupancy, in Jane H Concannon Revocable Trust v. Building Department of Town of East Hampton.  The controversy involved a renovation of a motel in Montauk completed in 2015, where the neighbor in question argued that an earlier certificate of occupancy issued in 2005 was improperly granted.   In the ensuing proceedings before the Town’s Zoning Board, the Board found that the neighbor’s challenge was untimely, because the neighbor had constructive notice of the 2005 certificate of occupancy no later than 2010, five years before the appeal to the Zoning Board.  The Appellate Division’s decision, which upheld the Supreme Court’s dismissal of the neighbor’s Article 78 proceeding, agreed with the Supreme Court that the Zoning Board’s findings were rational and not arbitrary and capricious.

The Appellate Term, Second Department, has ruled in favor of tenants against a purchaser at a mortgage foreclosure sale, in Lakeland v. Uvino.   The East Hampton Justice Court had issued two judgments against tenants, who had been in possession of the property at the time of the foreclosure sale, and in favor of the purchasers, totaling over $174,000.  On appeal, the Appellate Term found that the judgments were improperly awarded, because the purchaser, who was also the mortgagee who commenced the foreclosure action, had not properly “voided” the leases after the foreclosure sale.