tag:nysbar.com,2010:/blogs/RPLS/19 2010-09-01T22:06:02Z Sponsored by the Real Property Law Section of the New York State Bar Association NYSBA Blogging Policy Movable Type 3.33 tag:nysbar.com,2010:/blogs/RPLS//19.2832 2010-09-01T22:01:14Z 2010-09-01T22:06:02Z

The New York State Department of Taxation and Finance has issued a Notice (N-10-7) titled "Changes to Powers of Attorney Accepted for Tax Matters Administered by the New York State Tax Department and the New York City Department of Finance"....

Michael Berey http://www.tax.state.ny.us/pdf/notices/n10_7.pdf]]> tag:nysbar.com,2010:/blogs/RPLS//19.2796 2010-08-20T17:02:53Z 2010-09-01T22:04:40Z

A manuscript on the revised Statutory Short Form Power of Attorney and the revised Statutory Major Gift Rider, to be known as the Statutory Gifts Rider, both effective September 12, 2010, and the revised forms, can be accessed at http://www.firstamny.com/doc/Current_124.pdf...

Michael Berey http://www.firstamny.com/doc/Current_124.pdf ]]> tag:nysbar.com,2010:/blogs/RPLS//19.2753 2010-08-04T18:41:31Z 2010-09-01T22:04:40Z

The Office of the Richmond County Clerk has issued a General Notice dated July 26, 2010 stating the following: "Effective September 1, 2010, all new Actions for Foreclosure pursuant to Article 13 of the Real Property Actions and Proceedings Law...

Michael Berey The Office of the Richmond County Clerk has issued a General Notice dated July 26, 2010 stating the following: "Effective September 1, 2010, all new Actions for Foreclosure pursuant to Article 13 of the Real Property Actions and Proceedings Law must be accompanied by a fee of one hundred and ninety dollars ($190.00) in addition to the Index Number fee. [FN] "The Office of the Richmond County Clerk is mandated to collect this additional fee on all Foreclosure Actions received by the Office on or after September 1, 2010. "In order to avoid delay in handling and processing, all commencement papers and appropriate fees must be addressed to: The Office of the Richmond County Clerk Division of Law and Equity 130 Stuyvesant Place Staten Island, New York 10301 Footnote: Section 5 of Part K of Chapter 56 of the Laws of 2010 amending CPLR Section 8018 reads as follows: "In an action to foreclose pursuant to Article Thirteen of the Real Property Actions and Proceedings Law, such Clerk is entitled to collect an additional fee or one hundred ninety dollars. Such fees are payable in advance" tag:nysbar.com,2010:/blogs/RPLS//19.2745 2010-08-02T17:10:45Z 2010-09-01T22:04:40Z

Sales and Compensating Use Tax – New York State’s Department of Taxation and Finance has issued a Memorandum dated July 19, 2010 captioned “Sales and Compensating Use Tax Treatment of Certain Information Services”. According to the Memorandum, “[a]s a general...

Michael Berey http://www.tax.state.ny.us/pdf/memos/sales/m10_7s.pdf ]]> tag:nysbar.com,2010:/blogs/RPLS//19.2744 2010-08-02T17:02:31Z 2010-09-01T22:04:40Z

NYC/Real Property Income and Expense (RPIE) Statements – The City’s Department of Finance has posted the following announcement on its web site at http://home2.nyc.gov/html/dof/html/property/property_info_rpie.shtml: “Starting with the 2009 RPIE due on September 1, 2010, owners of [income producing] properties subject...

Michael Berey http://home2.nyc.gov/html/dof/html/property/property_info_rpie.shtml: “Starting with the 2009 RPIE due on September 1, 2010, owners of [income producing] properties subject to filing requirements but fail to file on time will face a penalty of up to 3% of the actual assessed value of their property. Furthermore, all filed RPIEs are subject to audit and erroneous filings will be penalized in accordance with the law”. The authority to impose penalties for the failure to timely file an RPIE is contained in NYC Code Section 11-208.1 (“Income and Expense Statements”) ]]> tag:nysbar.com,2010:/blogs/RPLS//19.2743 2010-08-02T16:56:45Z 2010-09-01T22:04:40Z

Pursuant to Chapter 416 of the Laws of 2009, the Administrative Judge for the Supreme Court, New York County, and the Statewide Coordinator for Electronic Filing, Uniform Court System, have issued an “Important Notice to Commercial Practitioners: Mandatory Electronic Filing”...

Michael Berey http://www.nycourts.gov/supctmanh/MEF-Notice%20to%20CD.pdf. According to the Notice: “Any mandatory commercial case commenced [in the Supreme Court, New York County] on or after May 24 [2010] must be electronically filed through the New York State Courts Electronic Filing System (‘NYSCEF”), as must subsequent filings therein. Mandatory commercial cases consist of certain commercial matters (not limited to Commercial Division cases) in which the amount in controversy is over $100,000 (exclusive of interest, costs, disbursements, counsel fees and punitive damages). “Except to the extent that the rules provide otherwise, on and after May 24, the County Clerk and court clerks will not accept documents filed in mandatory commercial cases in hard copy form…” The classes of cases for which mandatory electronic filing is required, when the amount in controversy is over $100,000, are listed in Chapter 416, posted at http://www.nycourts.gov/supctmanh/E-Filing.htm. The list includes “transactions involving commercial real property” and “residential real estate disputes, including landlord-tenant matters, and commercial real estate disputes involving the payment of rent only”. ]]> tag:nysbar.com,2010:/blogs/RPLS//19.2742 2010-08-02T16:50:45Z 2010-09-01T22:04:41Z

New York’s laws setting forth the elements of a claim of adverse possession were changed by Chapter 269 of the Laws of 2008 (“Chapter 269”), which amended various Sections of the Real Property Actions and Proceedings Law (“RPAPL”) and added...

Michael Berey New York’s laws setting forth the elements of a claim of adverse possession were changed by Chapter 269 of the Laws of 2008 (“Chapter 269”), which amended various Sections of the Real Property Actions and Proceedings Law (“RPAPL”) and added RPAPL Section 543 (“Adverse Possession; how affected by acts across a boundary line”). The changes in the law made by Chapter 269 apply to claims filed on or after July 7, 2008. The Appellate Division, Third Department, held that the law in effect prior to July 7, 2008 applied in an action commenced in March 2009. The complaint in the action alleged that the prescriptive periods for the claimed easement “commenced and concluded prior to” July 7, 2008 and “[s]hould plaintiffs succeed in proving their claims, titles to the easement would have vested prior to the effective date of the amendments…‘[they] may not be disturbed retroactively by newly-enacted or amended legislation’ [citations omitted]”. Barra v. Norfolk Southern Railway Company, decided July 8, 2010, is reported at 2010 WL 2680107. The Appellate Division, Fourth Department, has also ruled that the laws in effect prior to July 7, 2008 apply to claims of adverse possession which have ripened into title prior to that date. Franza v. Olin, decided March 19, 2010, is reported at 897 N.Y.S. 2d 804. tag:nysbar.com,2010:/blogs/RPLS//19.2667 2010-07-06T14:41:55Z 2010-09-01T22:04:41Z

According to a Notice issued by New York City's Department of Finance, the Department has implemented a program "to allow property owners, lienors or their designees (or executors/administrators of the estates of owners) to register to receive electronic notification when...

Michael Berey http://nyc.gov/html/dof/html/pdf/recorded_documents/notice_of_rec_descrip.pdf Frequently Asked Questions http://nyc.gov/html/dof/html/pdf/recorded_documents/notice_of_rec_faq.pdf Online Application http://a836-acris.nyc.gov/nrd/ Form for Notice by Mail http://nyc.gov/html/dof/html/pdf/recorded_documents/notice_of_rec_doc.pdf]]> tag:nysbar.com,2010:/blogs/RPLS//19.2660 2010-06-30T20:24:02Z 2010-09-01T22:04:41Z

New York State's Department of Taxation and Finance has issued an Advisory Opinion dated June 16, 1010 (TSB-A-10(3)R) on the following issues, as stated in the Opinion: "The petition asks whether a deed recorded as security for the repayment of...

Michael Berey http://www.tax.state.ny.us/pdf/advisory_opinions/multitax/a10_3r.pdf ]]> tag:nysbar.com,2010:/blogs/RPLS//19.2582 2010-06-04T13:36:25Z 2010-09-01T22:04:41Z

The Plaintiff in the case Wells Fargo v. Tyson commenced an Action to foreclose its mortgage. The Defendant notified the Plaintiff that he had discontinued utility services at the property and the winterization and securing of the dwelling. The Defendant...

Michael Berey The Plaintiff in the case Wells Fargo v. Tyson commenced an Action to foreclose its mortgage. The Defendant notified the Plaintiff that he had discontinued utility services at the property and the winterization and securing of the dwelling. The Defendant advised the Plaintiff that the property was not, however, abandoned; the Defendant also visited the property regularly and had a neighbor watch the property in his absence. After a private property inspection and preservation company employed by the Plaintiff found the front door of the home open and the premises unsecured, the Plaintiff directed that the locks be changed and the house secured and winterized. The Plaintiff insisted that it had the right under the terms of the mortgage to enter the premises at any time without consent, which happened at least twice, to inspect and protect its security. The Defendant claimed that damage was caused to the property and various items of personal property were taken. The mortgage provided that the lender could enter and inspect the property in a reasonable manner and at reasonable times on notice, but there was no indication that notice to the Defendant was provided. The mortgage also provided that if the property was abandoned the mortgagee could secure and repair the property, including change the locks. The Supreme Court, Suffolk County, ruled that all actions taken by the Plaintiff were required to be reasonable and entry into the property had to be on notice to the Defendant. It held that the Plaintiff had committed a trespass and awarded the Defendant $200 in damages for the trespass, $4,892 for the value of the personal property that was lost, and exemplary damages of $150,000. The decision, on March 5, 2010, is reported at 2010 WL 753360. tag:nysbar.com,2010:/blogs/RPLS//19.2581 2010-06-04T13:33:41Z 2010-09-01T22:04:41Z

Mortgage Foreclosures – In an Action to foreclose a mortgage securing a loan in the amount of $302,500.00 on a residential property, Justice Spinner of the Supreme Court, Suffolk County barred the Plaintiff from collecting interest on the loan from...

Michael Berey Mortgage Foreclosures – In an Action to foreclose a mortgage securing a loan in the amount of $302,500.00 on a residential property, Justice Spinner of the Supreme Court, Suffolk County barred the Plaintiff from collecting interest on the loan from May 1, 2008, the date of the borrower’s default, to March 1, 2010, which was just before the date of the settlement conference. He also barred the Plaintiff from recovering other advances it had made and its legal fees and expenses, and limited the debt recoverable by the Plaintiff to $301,721.58. The Court also awarded the Defendants $100,000 in exemplary damages. The Court found that there was no justification for the fourteen month delay between default and the commencement of the Action other than to increase the amount of default interest; that the terms and conditions of the Adjustable Rate Note, Default Interest Rate Rider and Mortgage were in the nature of contracts of adhesion; that the legal fees and costs claimed were “excessive and unreasonable”; and that the accrued interest was computed at a “confiscatory rate”. According to the Court, “the conduct of Plaintiff in this matter has been over-reaching, shocking, willful and unconscionable, is wholly devoid of even so much as a scintilla of good faith and cannot be countenanced by this Court”. Emigrant Mortgage Co. Inc. v. Corcione, decided April 16, 2010, is reported at 2010 WL 1531432. tag:nysbar.com,2010:/blogs/RPLS//19.2580 2010-06-04T13:28:06Z 2010-09-01T22:04:41Z

Plaintiff alleged that he was injured due to a defective sidewalk adjoining the property being foreclosed. The accident was alleged to have taken place between the date on which the judgment of foreclosure and sale was issued and the date...

Michael Berey Plaintiff alleged that he was injured due to a defective sidewalk adjoining the property being foreclosed. The accident was alleged to have taken place between the date on which the judgment of foreclosure and sale was issued and the date on which the mortgagee purchased the property at the foreclosure sale. Plaintiff claimed that the mortgagee, which was paying the property’s real estate taxes and property preservation fees during the action, was the “equity owner” of the property when he was injured. The Supreme Court, Kings County, granted the Defendant’s motion to dismiss the complaint. According to the Court, as the property is a multiple dwelling, the Defendant “had no duty in law or equity to maintain or repair the property” until completion of the foreclosure sale. “[A] mortgagee prosecuting a foreclosure action [involving a multiple dwelling] is not charged with repairs of the property and a duty to repair cannot be created by arguing the applicability of equity”. Forbes v. Aaron, decided March 4, 2010, is reported at 2010 WL 811115. tag:nysbar.com,2010:/blogs/RPLS//19.2392 2010-04-01T15:03:51Z 2010-09-01T22:04:41Z

New York State's Department of Taxation and Finance has issued a Bulletin advising as follows: "Effective January 1, 2010, section 253.1-a(a) of the Tax Law was amended to provide an exemption from the special additional mortgage recording tax (SAMRT) on...

Michael Berey http://www.tax.state.ny.us/pdf/memos/mortgage/m10_1r.pdf]]> tag:nysbar.com,2010:/blogs/RPLS//19.2389 2010-03-31T16:33:19Z 2010-09-01T22:04:41Z

The Appellate Division, Second Department, has ruled that the failure to properly give notice, as required under the Home Equity Theft Prevention Act (Chapter 308 of the Laws of 2006), is a defense that can be raised at any time...

Michael Berey The Appellate Division, Second Department, has ruled that the failure to properly give notice, as required under the Home Equity Theft Prevention Act (Chapter 308 of the Laws of 2006), is a defense that can be raised at any time during the forelosure; it need not be raised only as an affirmative defense. Further, according to the Court, the foreclosing lender has the burden of showing that it strictly complied with the notice requirements of the Act. First National Bank of Chicago v. Silver, decided March 23, 2010, is reported at 2010 WL 1078805. tag:nysbar.com,2010:/blogs/RPLS//19.2323 2010-03-08T14:58:57Z 2010-09-01T22:04:41Z

Articles of Organization (“Articles”) for a newly formed limited liability company (the “LLC”), formed by a son and the daughter of the grantor of the deed in question, were executed on October 4, 2001 but not filed with New York’s...

Michael Berey Articles of Organization (“Articles”) for a newly formed limited liability company (the “LLC”), formed by a son and the daughter of the grantor of the deed in question, were executed on October 4, 2001 but not filed with New York’s Department of State (“Department”) until November 16, 2001. On November 2, 2001, before the Articles were filed, the mother of the two persons above-referenced executed a deed transferring the ownership of certain property to the LLC. The deed was recorded on December 3, 2001. After the grantor died, representatives of the children of two predeceased children of the grantor asserted that the property was not properly conveyed to the LLC and should be distributed as an asset of the Estate. The Surrogate’s Court, Kings County, held that the conveyance was valid, holding that the LLC was operated as a valid “de facto” company prior to the filing of the Articles. The “de facto” company doctrine, traditionally applicable to corporations, applies “where there exists (1) a law under which the corporation might be organized, (2) an attempt to organize the corporation, and (3) an exercise of corporate powers thereafter”. The Appellate Division, Second Department, reversed the Order of the Surrogate, holding the conveyance to be void because there was no attempt to file the Articles before the deed was executed. The Court of Appeals affirmed. According to the Court, while the de facto corporation doctrine applies to limited liability companies, “the formation of a de facto company requires a ‘colorable attempt to comply with the statutes governing incorporation’ prior to the exercise of corporate powers, including the filing requirement”. In this case, there was no bona fide attempt to file the Articles before the deed was executed. “Because an entity that is neither de facto nor de jure cannot take title to real property [citation omitted], there was no entity in existence capable of receiving title to the real property and the purported conveyance is therefore void”. Estate of Hausman, decided December 1, 2009, is reported at 13 N.Y. 3d 408.