Real Property Law Section Blog

The following has today been received from the New York State Land Title Association

WE HAVE JUST BEEN INFORMED OF THE FOLLOWING CHANGE RE POWER OF ATTORNEY - SEE BELOW - IN THE WESTCHESTER COUNTY CLERK’S OFFICE.

WE HAVE ALSO BEEN INFORMED THAT THE NEW POWER OF ATTORNEY REQUIREMENTS WILL BE EFFECTIVE FOR ALL DOCUMENTS EXECUTED AFTER MONDAY APRIL 7TH. THEY WILL ACCEPT DOCUMENTS WITHOUT A POWER OF ATTORNEY BEING SUBMITTED WITH THE DOCUMENT (FOR INDIVIDUALS) IF EXECUTED PRIOR TO APRIL 7TH AND THE DOCUMENT CONTAINS A NOTE INDICATING “EXECUTED PRIOR TO 4/7/08 – POWER OF ATTORNEY NOT REQUIRED TO BE SUBMITTED.

[The following has been issued by the Deputy Westchester County Clerk]:

Please ensure that all staff are advised of the following policy change below, as well as in providing any clarification to ensure their understanding and application of same. This policy is effective immediately:

All conveyance documents that reference a Power of Attorney, or are signed and executed by a signature under Power of Attorney, whether individually or by attorney-in-fact for a corporate entity, must comply with the following in order for a conveyance to be accepted for recording:

1. For both individual and corporate executed documents, a Power of Attorney must be of prior record, or submitted simultaneously therein, with the conveyance tendered for recording;

2. For a conveyance submitted for recording with reference to a prior filing of a Power of Attorney, the conveyance must contain reference to the liber and page, control number and file date of the Power of Attorney;

3. For conveyances submitted for recording with reference to a prior filing of a Power of Attorney not filed in the Land Records Division, the conveyance must be accompanied by a certified copy of the prior recorded Power of Attorney,

John J. Mongero
Chief Deputy County Clerk

Solomon WEISS, et al. respondents,
v.
Irene FELDBRAND, appellant.

April 1, 2008.

--- N.Y.S.2d ----, 2008 WL 879049 (N.Y.A.D. 2 Dept.)

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated February 10, 2006, as denied those branches of her motion which were for summary judgment dismissing the complaint and to vacate a lis pendens and, in effect, denied that branch of her motion which was for summary judgment on her counterclaim, and granted that branch of the plaintiffs' cross motion which was for summary judgment directing specific performance of the contract.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiffs' cross motion which was for summary judgment directing specific performance of the contract and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Before specific performance of a contract for the sale of real property may be granted, a buyer must demonstrate that it was ready, willing, and able to perform (see Dario v. Rockaway Blvd. Props. 44 AD3d 602; Chavez v. Eli Homes, Inc., 7 AD3d 657, 659; Nuzzi Family Ltd. Liab. Co. v. Nature Conservacy, 304 A.D.2d 631, 632). Here, the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law, as they did not obtain a mortgage commitment and their assertion that a relative could supply the funds necessary to close was not substantiated by any documentary evidence (see Chernow v. Chernow, 39 AD3d 684, 686; Aliperti v. Laurel Links, Ltd., 27 AD3d 675, 676; Internet Homes, Inc. v. Vitulli, 8 AD3d 438, 439). Moreover, the plaintiffs failed to show that they properly demanded performance of the contract of sale on a specific day (see Decatur [2004] Realty, LLC v. Cruz, 30 AD3d 367; Cave v. Kollar, 296 A.D.2d 370). Accordingly, the Supreme Court should have denied that branch of the plaintiffs' cross motion which was for summary judgment directing specific performance of the contract.

The parties' remaining contentions are without merit.

The Supreme Court, Richmond County, denied a foreclosing mortgagee's motion for summary judgment and stayed the proceeding on finding that the original lender violated New York's "predatory lending" statute, Banking Law, Section 6-L ("High-cost home loans"). The Court scheduled a hearing to determine damages incurred by the Plaintiff and indicated that relief may, under Section 6-L, include the voiding of the mortgage, the return of all mortgage payments, the expenses of obtaining the loan and attorneys' fees. Among the acts in question were (i) lending in excess of the purchase price to enable payment of points and closing fees, leaving the borrowers with negative equity in the property; (ii) financing of fees and points in excess of three per cent of the principal amount of the loan; (iii) the failure to undertake the "due diligence" required regarding the borrower's ability to pay a "high cost home loan"; and (iv) not issuing to the borrower a required "Consumer Caution and Home Ownership Counseling Notice". LaSalle Bank NA v. Shearon, decided January 28, 2008, was reported in the New York Law Journal on February 7, 2008 and is reported as 2008 NY Slip Op 28032.

Property owners whose homes and businesses in downtown Brooklyn are to be condemned to enable the construction of the Atlantic Yards Arena and Redevelopment Project claimed that the taking would violate the Public Use Clause of the Fifth Amendment to the United States Constitution, under which "private property [shall not] be taken for public use, without just compensation". They alleged that the public uses advanced for the Project were pretexts for a private taking. The Second Circuit Court of Appeals has affirmed the District Court for the Eastern District of New York's Order dismissing the complaint. According to the Appellate Court, "the Project bears at least a rational relationship to well established categories of public uses, among them the redress of blight, the creation of affordable housing, the creation of a public open space, and various mass-transit improvements". The Supreme Court's decision in Kelo v. City of New London (545 U.S. 469) does not "require federal courts in all cases to give close scrutiny to the mechanics of a taking rationally related to a classic public use as a means to gauge the purity of the motives of the various governmental officials who approved it". Goldstein v. Pataki, decided February 1, 2008, is reported at 2008 WL 269100.

A recent decision by the Appellate Division, Second Department, expands the scope of matters in which a lis pendens may be filed to include cases where it is alleged a judgment debtor is attempting to fraudulently convey property in anticipation of an imminent judgment . "The plaintiffs allege in their complaint, in relevant part, that defendants, in anticipation of an imminent judgment against them and with the intent to defraud their creditors, conveyed certain real property to related corporate entities, without adequate consideration, thereby rendering themselves insolvent ... Under the circumstances, the Supreme Court erred in determining that this action was not one in which a notice of pendency may be filed" (citations omitted).).

See Ford Motor Co. v. Shayovitz, 36 A.D.3d 754, 828 N.Y.S.2d 539 (2d Dep't 2007)

Submitted by Abraham B. Krieger, Esq.
Meyer, Suozzi, English & Klein, P.C.
Garden City, New York

At a meeting today with a committee of the New York State Land Title Association, the City Register announced a new policy for the return of original recorded documents. This policy will be in effect for all documents submitted for recording after June 1, 2008, including all documents rejected prior to that date which are re-submitted for recording after June 1.

It has been the practice of the City Register's offices to return all recorded documents by mail that are not picked-up by the company which submitted them, or by its designee, without further charge.

A document submitted for recording (or re-recording) after June 1 that is not picked-up within ten business days of recording will be returned to the person noted on the ACRIS Recording and Endorsement Cover Page as the addressee for the return of the document only if the Register's Office is provided when the document is submitted either (i) a stamped, addressed return envelope or (ii) an overnight delivery service envelope with a label (such as a Federal Express "US Airbill") completed with the address of the recipient and a billing account number.

Otherwise, after ten business days from the date of its recording, the original recorded document will be destroyed by the Register's Office.

The City Register's office is responsible for real property recordings in all counties of the City of New York other than Richmond County (Staten Island).

Under Local Law No. 29 of 2007 effective November 11, 2007, adding article ten to subchapter five of chapter two of title twenty-seven of the Administrative Code, the Department of Housing Preservation and Development ("HPD") will annually identify 200 "distressed buildings" for the AEP. After receipt of notice that a property is included in the AEP, the property owner has four months to correct 100% of the violations directly related to providing heat and hot water and no less than 80% of all Class "B" and "C" violations, to pay all outstanding charges for emergency repairs performed by HPD, and to submit to HPD a current and valid property registration statement. If the owner does not comply, HPD may hire a contractor and bill the owner for the repairs. Administrative Code Section 27-2153(q) provides that "[a]ll amounts for expenses incurred and fees imposed by the department pursuant to this article that remain unpaid by an owner shall constitute a debt recoverable from the owner and a lien upon the building and lot, and upon the rents and other income thereof". Information on this new program is posted at http://home2.nyc.gov/html/hpd/html/owners/aep.shtml

Absent an agreement to the contrary, a partnership dissolves on the death of a partner and the partnership, if it continues to do business, does so as a partnership at will. The Plaintiffs, heirs of general partners of two partnerships owning real property, claimed that they became partners with the other, surviving partners, and they brought an action to enforce their partnership rights. The Supreme Court, New York County, held that the Plaintiffs had only beneficial interests in partnerships at will; they were not partners because there was no agreement under which the Plaintiffs succeeded to the partnership interests. They only have the right to collect earnings, to a declaration of dissolution, and to an accounting. Sperber v. Rubell, decided February 27, 2008, was reported in the New York Law Journal on March 21, 2008.