A Suffolk County jury, after a two-week trial, has issued a verdict and awarded over $750,000 in damages (excluding interest) to a construction manager that was wrongfully terminated by a school district, in East Hampton Union Free School District v. Sandpebble Builders, Inc.   The school district had sued the construction manager first, seeking millions in alleged damages for breach of contract, and the construction manager counterclaimed for wrongful termination.  After more than nine years of pretrial litigation that included multiple appeals, one of which was heard by New York’s highest court,  the case finally reached trial in May of 2016.  The trial was conducted before the Hon. Jerry Garguilo over ten days, before being turned over to the jury.  After only two hours of deliberations, the jury returned a unanimous verdict in favor of the construction manager on all issues, rejecting the district’s claims and statute of limitations defense, finding the district’s actions to be a breach of contract, and it awarding the construction manager damages for the district’s breach.  The final judgment will include nearly ten years of interest added to the jury’s award.

In a case of first impression, the Supreme Court, Suffolk County has concluded that an Industrial Development Agency (IDA) that is in record ownership of a parcel is a necessary party to an ejectment action brought by a plaintiff claiming to be the “beneficial owner” of the property against a defendant who raises adverse claims of title, in JKJ Marine LLC v. 1320 Entertainment Inc., Suffolk Index No. 62514/14.   The defendant argued that the IDA, as record owner, must be joined in the action, but the plaintiff claimed that the IDA was just a nominal owner and was uninterested in the action.   After conducting a hearing to determine the issue, the Court (Hon. Paul J. Baisley, Jr.) concluded that the IDA was a necessary party and ordered that it be joined in the action.

We are pleased to announce a change in the name of the firm to “Esseks, Hefter, Angel, Di Talia & Pasca, LLP,” in recognition of Carmela Di Talia and Anthony Pasca’s contributions to the firm and their ten-year anniversary as partners.

The Supreme Court, Suffolk County (Hon. Paul J. Baisley, Jr.) has dismissed a specific performance action as premature, in Wunderlich v. Liberty Meadows, LLC, Index No. 64450/2014.  The plaintiff had brought the action before setting a “time of the essence” closing.  When the defendant moved to dismiss the action as premature, the plaintiff argued that the defendant “anticipatorily breached” the contract, thus excusing the plaintiff from setting a time of the essence closing.  The Supreme Court disagreed with the plaintiff and dismissed the action, holding that there was no anticipatory breach because the “defendant never expressed a clear and unequivocal intent not to perform or to abandon the contract….”

The Appellate Division, Second Department has upheld the dismissal of a challenge to a probate decree in Matter of Estate of Romano, 2016 NY Slip Op. 1682.  The court found that the challenger’s claim of “lack of capacity” on the decedent’s part was not supported by evidence, and the claim of “undue influence” was mere speculation and conjecture.

The Appellate Division, Second Department has upheld the dismissal of a neighbor’s adverse possession claim, and has re-instated the owner’s trespass claim, in Reyes v. Carroll. The case involved a boundary dispute on residential parcels in Wainscott, New York, where the plaintiffs claimed to have acquired a portion of the defendant’s property by adverse possession.  The court concluded that the plaintiffs, who had voluntarily removed a fence at the request of the defendants’ predecessor, failed to prove they occupied the defendants’ property “adversely.”  The court also concluded that the defendants were entitled to seek damages for plaintiff’s trespass on the defendants’ property.

The Appellate Division, Second Department has upheld the dismissal of a neighbor’s adverse possession claim in Birch Tree Partners, LLC v. Windsor Digital Studio, LLC.  In that case, the plaintiff had attempted to claim title to a portion of the defendant’s property by arguing that it performed “usual cultivation” of the disputed area through landscaping maintenance.  The plaintiff also had not owned the property for the required 10-year adverse possession period, so it argued that it was entitled to “tack on” to the alleged prior possession of its predecessor.  The Appellate Division rejected both of those arguments, finding insufficient proof of the level of cultivation required to support an adverse possession claim, as well as a lack of proof of intent (on the predecessor’s part) to transfer possession of the disputed area to the plaintiff, so as to support a claim of “tacking.”

EHA is pleased to welcome attorney Lisa D. Tymann to the firm’s estate planning practice group.  After spending nearly 20 years practicing transactional law in Washington, D.C., and New York City, Lisa is returning to Eastern Long Island to serve her home community.

The Supreme Court, Suffolk County has upheld a purchaser’s right to cancel a contract and recover a $560,000 downpayment upon discovery of mold in the home, in Minerof v. Lonergan, Index No. 14-68809.   The contract at issue included an express representation that there was no mold or mold remediation in the premises.  When mold was discovered at the home inspection, the purchaser requested a refund of the downpayment, but the seller refused and accused the purchaser of breaching the contract.  In the ensuing litigation, the court granted the purchaser summary judgment, concluding that the no-mold representation went to the heart of the contract and the no-mold-remediation clause precluded the seller from demanding an opportunity to cure.

The Supreme Court, Suffolk County has upheld the right of the owners of approximately 4,000 feet of oceanfront beach in Amagansett to proceed to trial in a long-running dispute against the East Hampton Town Trustees and the Town, in Seaview at Amagansett v. Trustees, Index No. 09-34714. The plaintiff owners allege in the action that the Napeague beach area in question was deeded into private ownership in an 1882 deed from the Trustees to Arthur Benson. In recent years, the area has become congested with seasonal usage of the beach that can include over 200 trucks parked directly on the beach, along with tents, picnics, bathers, children and pets, all without the benefit of bathroom facilities and lifeguards. The plaintiffs’ action seeks to quiet title to the beach and enjoin the unsafe nuisance. The Trustees and Town attempted to avoid a trial by obtaining a “summary judgment” against the plaintiffs, but the Hon. Jerry Garguilo of the Supreme Court rejected the motion, paving the way for a trial. In the decision, Justice Garguilo concluded that the plaintiffs proved that they “hold unbroken chains of title starting from the Benson Deed to the subject beach area, that is, to the high water mark or line of the Atlantic Ocean.” Additionally, although the beach is burdened by an easement relating to fishing activities, Justice Garguilo agreed with plaintiffs that the easement “may not be enlarged to include uses completely foreign to the grant, such as recreational purposes, including picknicking, sunbathing, boating and bathing.”