Second Department Issues Ruling in Adverse Possession Case

Litigation

Case: Wright v. Sokoloff, 110 A.D.3d 989 (2nd Dept., October 23, 2013)

In the recent decision of Wright v. Sokoloff, 110 A.D.3d 989 (2nd Dept., October 23, 2013), the Appellate Division, Second Department, clarified the appropriate reading of NY RPAPL § 543(1), which states that “[n]otwithstanding any other provision of this article, the existence of de [minimis] non-structural encroachments including, but not limited to, fences, hedges, shrubbery, plantings, sheds and non-structural walls, shall be deemed to be permissive and non-adverse.” In reaching its holding, the Second Department explained that under RPAPL 543(1), non-structural encroachments, such as the ones provided in a non-exhaustive list in the statute, are permissive so long as they are de minimis, but upon a showing that such encroachments are not de minimis, those encroachments are adverse. 110 A.D.3d at 990-91.

In Wright v. Sokoloff, the plaintiff-petitioner owned property located at 237 Gin Lane in Southhampton. According to the plaintiff’s deed, the plaintiff was entitled to “a right of way for ingress and egress, and for all other purposes” over a 30-foot-wide strip of land running from Gin Lane to the plaintiff’s lot. Id. at 989. Part of this right of way was located on the defendant-respondent’s lot at 241 Gin Lane. In July 1999, the former owners of defendant’s lot planted an eight-foot-wide hedge on the portion of the right-of-way located on defendant’s lot. According to the plaintiff, he immediately objected and repeatedly requested that the former owner remove the hedge, which the owner refused to do. The defendants, who purchased the property in October 2006, also refused plaintiff’s requests to remove the hedge. Id. at 989.

Plaintiff commenced an action in July 2010 seeking to direct the defendants “to remove the hedges, tress, plantings, structures, and all impediments substantially and unreasonably interfering with [the plaintiff's] right of way.” The Supreme Court granted the defendants’ cross motion for summary judgment and dismissed the complaint (decision available here: WrightvSokoloff). Id. at 990.

On review, the Second Department reversed the lower court on the basis that the defendants failed to establish that the hedge did not in fact pose a substantial interference with the plaintiff’s right of way, nor did the defendants sufficiently prove that plaintiff’s action was time-barred by extinguishment of the right-of-way by means of adverse possession due to the language of RPAPL 543(1). Id. at 990. Under New York law, adverse possession occurs when there is actual, exclusive, hostile, open and notorious possession of property under claim of right for a continuous statutory period of at least ten years. See Estate of Becker v. Murtagh, 19 N.Y.3d 75, 80-81 (2012); NY RPAPL § 521. RPAPL 543(1), the Second Department explained, provides that the presence of a “de [minimis] non-structural encroachment” is permissive and, therefore, not adverse. Because the defendants failed to argue that the hedges were more than a de minimis non-structural encroachment, and therefore adverse, the Second Department found the plaintiff’s argument that the shrubs were permissive and non-adverse to be a triable issue of fact. See 110 A.D.3d at 990.

Despite recognizing the plaintiff’s argument of a triable issue of fact, the court rejected the plaintiff’s theory. According to the plaintiff, any of the non-structural encroachments provided in the statute’s non-exhaustive list are “de minimis non-structural encroachments” and, therefore, are inherently permissive regardless of size. Id. at 990. The Second Department, however, found that such an interpretation would render the use of “de minimis” superfluous. Presuming that all statute clauses serve a purpose, the Second Department rejected plaintiff’s interpretation and instead explained in dictum that in such cases in which RPAPL 543(1) is relevant, any of the non-structural encroachments at issue must be determined to be de minimis before being declared permissive. Id. at 991.

The author acknowledges Michael Barone, Jr., J.D. Candidate 2014, for his contribution to this article.

Posted by Adam H. Koblenz

Second Department Issues Ruling in Standing Case

Litigation

Case: In the Matter of Riverhead Neighborhood Preservation Coalition, Inc., et al. v. Town of Riverhead Town Board, 112 A.D.3d 944 (2nd Dept., December 26, 2013)

In the recent decision of In the Matter of Riverhead Neighborhood Preservation Coalition, Inc., et al. v. Town of Riverhead Town Board, 112 A.D.3d 944 (2nd Dept., December 26, 2013), the Appellate Division, Second Department, reaffirmed the long standing legal principle that in order to possess proper standing to challenge a municipal land use decision, the petitioner must demonstrate that it has suffered injury in fact that is different than the injury allegedly sustained by the public community as a whole.

Standing is defined as “[a] party’s right to make a legal claim or seek judicial enforcement of a duty or right.” BLACK’S LAW DICTIONARY (9th ed. 2009). In order for a petitioner to establish standing, the party must “show that it would suffer direct injury different from that suffered by the public at large, and that the injury asserted falls within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted.” Riverhead PGC, LLC v. Town of Riverhead, 73 A.D.3d 931, 933 (2nd Dept. 2010), citing Society of Plastics Indus. V. County of Suffolk, 77 N.Y.2d 761, 773-74 (1991).

The decision in Riverhead Neighborhood Preservation Coalition resulted from the review of an Article 78 proceeding filed by the plaintiff-petitioners (a group of local residents and the Riverhead Neighborhood Preservation Coalition, Inc.) to contest the proposed construction of a regional shopping mall in Wading River. 112 A.D.3d at 944. According to the petitioners, the primary entrance to the mall was located across Sound Avenue from Fairway Drive, the only road leading to the petitioner’s cul-de-sac community just north of Sound Avenue. The petitioner’s homes on Fairway Drive were located anywhere from 1,300 to 2,000 feet away from the site of the proposed construction. After considering these facts, the Supreme Court of Suffolk County granted the defendant-respondent’s motion to dismiss on the basis that the petitioners lacked standing for failing to sufficiently establish an injury in fact different then the harm suffered by the general public (decision available here; RiverheadvNeighborhoodPresCoal). Id.

On review, the Second Department affirmed the decision after explaining that the Supreme Court was supported by substantial case law. The court started its analysis by setting forth the requirements for standing in land use matters: “ ‘ . . . the plaintiff[s] . . . must show that [they] would suffer direct harm, injury that is in some way different from that of the public at large.’ ” Id. (quoting Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 304 (2009), quoting Society of Plastics Indus., 77 N.Y.2d at 774 (1991)). Beyond the presence of the mall’s entrance across the street from Fairway Drive and the general proximity of the site, the petitioners had failed to assert any arguments to establish injury at all. Id. at 945.

According to the facts on record, the Second Department found that the petitioners had failed to establish anything more than a generalized complaint, noting in particular that Fairway Drive was also used for entrance and egress from a local golf course. Id. at 945. Furthermore, the court noted that none of the petitioners could actually see the mall or its entrance from their home, nor were they within close enough proximity to the project, therefore, denying petitioners a presumption of injury in fact. Id.; see Matter of Harris v. Town Bd. of Town of Riverhead, 73 A.D.3d 922, 924 (2nd Dept. 2010) (“The individual petitioners do not live close enough to the site to be afforded any presumption of injury-in-fact on the basis of proximity alone.”); see Matter of Oates v. Village of Watkins Glen, 290 A.D.2d 758, 761 (3rd Dept. 2002) (“The test is whether the neighbor is close enough to suffer some harm other than that experienced by the public generally . . . ”); c.f. Matter of Barret v. Dutchess County Legislature, 38 A.D.3d 651, 654 (2nd Dept. 2007) (standing established where petitioner’s property directly abutted the planned site and the petitioners had a direct view of the planned construction from 1,200 feet). The lack of standing for the individual petitioners, as determined by the court, was, therefore, fatal to the Riverhead Neighborhood Preservation Coalition. 112 A.D.3d at 945; see Society of Plastics Indus., 77 N.Y.2d at 775.

The author acknowledges Michael Barone, Jr., J.D. Candidate 2014, for his contribution to this article.

Posted by Adam H. Koblenz

Federal Judge in NY Upholds NSA’s Bulk Collection of Data on Calls

Litigation

Case: ACLU, et al. v. Clapper, et al., 2013 WL 6819708 (S.D.N.Y. December 27, 2013)

The public discord over the reasonable expectation of privacy in the modern data era continues to gain momentum with the issue now infiltrating the federal court system. Developments and emerging trends in the expansion of constitutional rights under the Fourth Amendment can be seen in recent federal court decisions highlighted below.

For instance, the issue concerning the constitutionality of the National Security Agency’s (hereinafter “NSA”) collection of millions of Americans’ telephone records fell directly into the courts in the case of American Civil Liberties Union, et al. v. James R. Clapper, et al., No. 13 Civ. 3994, 2013 WL 6819708 (S.D.N.Y. Dec. 27, 2013), where U.S. District Judge William H. Pauley III in New York ruled on December 27, 2013 that not only is the NSA’s program statutorily legal, but that it does not place an unconstitutional burden on individual First and Fourth Amendment rights (decision available here: ACLUvClapper).

In reaching this historic decision, Judge Pauley reasoned in dicta that the mass collection of phone data “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.” 2013 WL 6819708, at *18. Judge Pauley added: “As the September 11th attacks demonstrate, the cost of missing such a threat can be horrific.” Judge Pauley concluded the program was a necessary extension of steps taken after the September 11th terrorist attacks. Id. at *27. These policies, as permitted by Section 215 of the PATRIOT Act, allow for the collection of “telephony metadata,” so long as the Executive first gets the judicial approval of the FISC and provides semi-annual reports to various congressional committees. Id. at *3; see 50 U.S.C. §§ 1861, 1871.

According to the relevant NSA documents and statutes, the “[t]elephony metadata” collected through the surveillance program as information for each call includes the involved telephone numbers, date, time, duration, and other limited information such as international mobile identifying numbers and calling card numbers. The Judge further explained that information such as conversation content, and typical identifying information such as names, addresses, cell location, or financial information about the individuals involved in the conversation is not collected. 2013 WL 6819708, at *4.

Ultimately, Judge Pauley held that, in accordance with Supreme Court precedent, such a program does not violate the Fourth Amendment freedom from unreasonable search and seizure because individuals have no legitimate expectation of privacy regarding the numbers that they dial due to the fact that the user knowingly provided the information to the phone company. Id. at *22 (referencing Smith v. Maryland, 442 U.S. 735 (1979)). In Smith v. Maryland, the United States Supreme Court held, inter alia, that:

The fortuity of whether or not the [tele]phone company in fact elects to make a quasi-permanent record of a particular number dialed does not . . . make any constitutional difference. Regardless of the [tele]phone company’s election, petitioner voluntarily conveyed to it information that it had facilities for recording and that it was free to record. Smith, 442 U.S. at 745.

Although the Smith decision is nearly 35 years old and some courts have been keen to claim that telecommunication relationships have changed (see Klayman v. Obama, No. 13-0851, 2013 WL 6571596, at *21 (D.D.C. December 16, 2013)), Judge Pauley held that while that may be the case, the fact of the matter remains that the relationship between the telephone user and the telephone company has not, therefore, the telephone user today has no more legitimate of an expectation of privacy regarding the aforementioned collected information than he or she had in 1979. 2013 WL 6819708, at *22.

Judge Pauley similarly held that the program does not violate the First Amendment right to associate. In deciding as much, the Judge referred to the recent Supreme Court decision of Clapper v. Amnesty International USA. 133 S.Ct. 1138 (2013). According to Judge Pauley, the Amnesty International decision “compels the conclusion that the bulk metadata collection does not burden First Amendment rights substantially.” 2013 WL 6819708, at *24 (citing 133 S.Ct. at 1152). Following Second Circuit precedent, Judge Pauley held that because the NSA metadata collection is not substantial and because “ ‘mere incidental burdens on the right to associate do not violate the first amendment,’ ” the collection of metadata is accordingly, not a violation of the First Amendment. Id. at *24 (quoting Tabbaa v. Chertoff, 509 F.3d 89, at 101 (2nd Cir. 2007).

The ruling by Judge Pauley and the disparate view held by U.S. District Judge Richard Leon in Washington, D.C. in a recent decision centering on similar privacy issues, creates a platform for federal appeals courts to consider the delicate balance between individual rights set out in the Constitution and the need to protect national security.

Indeed, the emergence of immeasurably diverse opinions by the federal bench on the reasonable expectation by Americans of privacy presents a myriad of issues and potential legal challenges, not only as it relates to the NSA’s program, but also the reach of the Fourth Amendment. Both cases now advance to federal appeals courts and a debate some intimate will eventually be settled by the U.S. Supreme Court.

The author acknowledges Michael Barone, Jr., J.D. Candidate 2014, for his contribution to this article.

Posted by Adam H. Koblenz