Real Estate Litigation

In keeping with this BLOG’s efforts to keep abreast of court practices and procedures promulgated to address COVID-19 concerns, practitioners should be aware of new foreclosure sale scheduling rules. By way of background, on July 24, 2020, Chief Administrative Judge Lawrence K. Marks issued Administrative Order 157/20 (“AO 157/20”) < HERE =">HERE</a>"> , which became effective on July 27, 2020 and established certain “procedures and protocols apply to the conduct of resident

In order for the conduct of business to proceed in an orderly fashion, folks need to be confident that, in general, the contracts that they enter into, particularly when “the parties set down their agreements in a clear, complete document” will “be enforced according to terms”.  159 MP Corp. v. Redbridge Bedford, LLC , 33 N.Y.3d 353, 358 (2019) (citations and internal quotation marks omitted).  This is consistent with the notion that “ n New York, agreements negotiated at ar

Every now and then a litigant or counsel fails to meet a deadline or otherwise acts in an untimely manner.  Sometimes there is a reasonable excuse and sometimes there is not.  Several “saving” provisions in the CPLR are available to assist a litigant or counsel when deadlines are missed.  Some such provisions are as follows: CPLR 2005 provides that “ pon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court s

On August 19, 2020, District Administrative Judge, Hon. Andrew A. Crecca, issued a Memorandum regarding the “Return to In-Person Operations in the 10 th Judicial District, Suffolk County – Phase 4.1” (the “Memo”) < HERE =">HERE</a></strong>"> .  According to the Memo, Phase 4.1 “builds upon our reopening efforts to date by providing for enhanced in-person operations in all courts throughout the District, the continued use of virtual technology where we have found it to be ap

Litigation can be a long and drawn out process.  As a result, parties sometimes die during the pendency of a lawsuit.  In such a case, CPLR § 1015 – Substitution Upon Death – is instructive and provides: (a) Generally.  If a party dies and the claim for or against him is not thereby extinguished the court shall order substitution of the proper parties. (b) Devolution of rights or liabilities on other parties.  Upon the death of one or more of the plaintiffs or defendants in

Generally, when a loan is made by a lender that is secured by real property, two of the documents delivered to the Lender by the borrower are a promissory note (which evidences the obligation to repay the borrowed sums) and a mortgage (which secures the obligation to repay the note by giving the lender a security interest in real property).  If a loan secured by a mortgage goes into default and the lender decides to protect its rights through litigation, a choice must be made

It makes sense that a “plaintiff appears merely by bringing it.”  Deutsche Bank Nat. Trust Co. v. Hall , ____ N.Y.S.3d ___, 2020 WL 4342753 (July 29, 2020) (citation and internal quotation marks omitted).  Once served with process, a defendant must appear in an action to avoid a default.  Section 320(a) of New York’s Civil Practice Law and Rules (the “CPLR”), which sets forth, inter alia, the manner in which a defendant can appear in an action provides that “ he defendant

In our prior Blog “ ’Love Thy Neighbor’ Is Not Always the Case ,” which should be reviewed in conjunction with the instant Blog, section 881 of New York’s Real Property Actions and Proceedings Law (the “RPAPL”) was explored.  Briefly stated, access to a neighboring property is sometimes necessary to improve or repair one’s own property (the “Work”).  In many cases neighbors can amicably resolve such access issues.  This can be done informally or through a formal access agree

This Blog has previously addressed issues concerning mortgage contingency clauses.  < HERE =">HERE</a>">   Briefly stated, mortgage contingency clauses in contracts for the sale of real property make the sale contingent on the purchaser obtaining a purchase money mortgage consistent with the clause’s requirements.  The failure to obtain a mortgage commitment after a diligent effort to do so, permits the potential purchaser to cancel the contract and demand the return of a dow

This Blog has previously addressed “economic duress” and the “voluntary payment doctrine.” < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and < HERE =">HERE</a>"> “Economic duress” is a theory upon which a “complaining party to void a contract and recover damages when it establishes that it was compelled to agree to the contract terms because of a wrongful threat by the other party which precluded the exercise of its free will.”  805 Third Ave. Co. v. M.W. Realty Assoc. , 58 N

Recognizing the “continuing restrictions on the filing and prosecution of foreclosure matters in New York State arising during the course of the COVID-19 public health emergency,” on June 23, 2020, Chief Administrative Judge Lawrence K. Marks issued a memorandum (the “June 23 Memorandum”) on temporary protocols (the “Protocols”) for residential and commercial foreclosure proceedings.  The temporary protocols became effective as of June 24, 2020. The Protocols are as follows:

As noted on numerous occasions in this BLOG, the New York State Legislature has responded to the residential foreclosure crisis by promulgating a series of rules designed to protect residential homeowners.  These rules, however, place additional burdens on foreclosing lenders and courts throughout New York State have demonstrated little sympathy for foreclosing lenders that fail to follow these rules. For example, RPAPL 1304 requires that at least ninety days prior to commen

It is an accepted principal of contract interpretation that “when parties set down their agreement in a clear, complete document, their writing should be enforced according to its terms.”  Vermont Teddy Bear Co. v. 538 Madison Realty Co. , 1 N.Y.3d 470 475 (2004) (quoting W.W.W. Assoc. v. Giancontieri , 77 N.Y.2d 157, 162 (1990)) (ellipses omitted).  Such a rule “imparts stability to commercial transactions by safeguarding against fraudulent claims, perjury, death of witnesse

In VRA Family Limited Partnership v. Salon Management USA, LLC , decided on May 6, 2020, the Appellate Division, Second Department, affirmed the motion court’s grant of summary judgment in favor of a commercial landlord as against a tenant that abandoned the subject premises and improperly assigned its rights under the subject lease. The facts of VRA are simple, plaintiff, as landlord, and Salon Management USA, LLC, as tenant, entered into a 10-year commercial lease.  At the

Article 63 of New York’s Civil Practice Law and Rules (“CPLR”) governs, inter alia , the provisional remedy of the preliminary injunction.  Thus, CPLR 6301 provides, in relevant part: Grounds for preliminary injunction and temporary restraining order.   A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff's rights respecting

In general, statutes of limitation govern the time in which a cause of action must be interposed after accrual.  [This BLOG has previously addressed Statute of Limitations issues < HERE =">HERE</a>"> and < HERE =">HERE</a>"> .]  Article 2 of the CPLR addresses statute of limitations issues in New York.  Section 201 of the CPLR provides that “ n action … must be commenced within the time specified in this article unless a different time is prescribed by law or a shorter time

In New York State, money judgments are valid for 20 years.  CPLR § 211(b) .  Money judgments recorded in the county in which real property is located remain liens on that real property for only 10 years.  CPLR § 5203(a) .  The CPLR, however, permits a judgment creditor to obtain a “renewal judgment,” which would operate to extend the lien of a money judgment on real property for an additional 10-year period.  CPLR § 5014 .  Thus, CPLR § 5014 presently provides, in pertinent p

On numerous occasions, this Blog has addressed issues surrounding certain notice obligations imposed on mortgage lenders foreclosing on residential property.  For example, section 1303 of the Real Property Actions and Proceedings Law (“RPAPL”) requires that, under certain circumstances relating to residential property, a foreclosing mortgagee must send statutory notice to the mortgagor and tenants advising them, among other things, that they are in danger of losing their hom

This Blog has addressed many issues related to mortgage foreclosure. < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> , < HERE =">HERE</a>"> ,  < HERE =">HERE</a>"> , < HERE =">HERE</a>"> and .  As to the issues relating to the standing of a lender to commence a foreclosure action, this Blog has not

Recording a mortgage puts the world on notice of the mortgagee’s interest in the real property that is the subject of the mortgage.  “New York has a ‘race-notice’ recording statutory scheme whereby the mortgage recorded first by a mortgagee without notice of any other mortgages will maintain priority over such other mortgages.”  Alliance Funding Co. v. Taboada , 39 A.D.3d 784 (2 nd Dept. 2007).  Section 291 of New York’s Real Property Law , which governs the recording of co