Second Department Issues Ruling in Adverse Possession Case


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


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


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

Court of Appeals Adopts “Fair Market Value at the Time of Breach” Rule to Measure Damages in a Contract of Sale absent Liquidated Damages.


The Court of Appeals has recently adopted the “fair market value at the time of breach,” rule for measuring a seller’s damages when a buyer breaches a real estate contract. This rule has consistently been endorsed by all four departments of the Appellate Division, but up until recently, has never been considered by the Court of Appeals. In White v. Farrell, the court declared that the proper method to measure a sellers damages for a buyer’s breach of a contract to sell real property in the absence of a liquidated damages provision is the difference, if any, between the contract price and the fair market value of the property at the time of the breach; a.k.a. the “fair market value at the time of breach” rule.

White involved an action by the plaintiff (buyer) for breach of contract, fraudulent inducement and negligent misrepresentation against the defendant (seller) to recover a $25,000 down payment on a contract of sale for the purchase of defendant’s newly constructed lakeside home in Skaneateles, NY. Defendants counterclaimed for breach of contract demanding $348,450 in actual damages (the difference between the original contract price of $1.75 million agreed to by the plaintiff’s and the eventual sale price of $1,376,550) and $217,636.88 in consequential damages (the alleged sum of mortgage and tax payments made on the property from date of breach to closing with the ultimate purchaser).

The defendants argued that the Supreme Court should have measured damages by calculating the difference between the original contract price and the subsequent lower contract price applying a principle articulated by the Third Department in Di Scipio v. Sullivan which stated in dictum that

[T]he measure of damages incurred as a result of a breach of a real estate contract is either the difference between the contract price and a subsequent lower price or, where no subsequent sale has occurred, the difference between the contract price and the market value of the property at the time of breach. 30 A.D.3d 677 (3rd Dept 2006) (emphasis added).

The Court of Appeals rejected the defendant’s argument and instead adopted the “fair market value” rule which the court found to be the rule followed in all four departments in the Appellate Division as evidenced by the catalogue of cases cited by the Court of Appeals in its decision. (2013 N.Y. Slip. Op. 01870, pgs 11-17).  The court held, in pertinent part,

The time-of-the-breach rule is longstanding in New York [and] seems to be the rule everywhere in the United States…and is consistent with the general contract principles that damages ‘are properly ascertained as of the date of the breach,’ and ‘the injured party has a duty to mitigate.’ (2013 N.Y. Slip. Op. 01870, pg 17).

The court went on to state,

This is not to say that resale price is irrelevant to the determination of damages; in fact, the resale price, in a particular case, may be very strong evidence of fair market value at the time of the breach. This is especially true where the time interval between default and resale is not too long, market conditions remain substantially similar, and the contract terms are comparable. (Slip. Op. No. 43, pg. 18).

On remand, the Court of Appeals instructed the lower court to consider the following factors relevant to damages: (1) whether the resale value in January 2007 for $1,376,550 reflects fair market value as of October 2005 (time of breach) given the lapse of time and any difference in market conditions and contract terms and (2) whether the defendant’s (sellers) made sufficient efforts to mitigate damages (i.e. resell at a reasonable price after the plaintiff’s default).

Click here for a link to the decision.

The author acknowledges Nicholas J. Cappadora, J.D. for his contribution to this article.

Posted by Michael H. Sahn

Sahn Ward Coschignano & Baker, PLLC Part of Unprecedented Legal Collaboration Seeking Justice for Indian Guest Workers


Recently, the Southern Poverty Law Center announced an unprecedented collaborative effort by several of the country’s most prestigious law firms to prosecute, on a pro bono basis, multiple human trafficking and racketeering lawsuits against Signal International, LLC and its network of recruiters and labor brokers. The lawsuits, filed in Mississippi and Texas, allege that the defendants trafficked over five hundred Indian guest workers to the United States after Hurricane Katrina and forced them to work for Signal under barbaric conditions.

The recently filed lawsuits stem from the case of David v. Signal International LLC, No. 08-cv-1220 (E.D. La.), which is proceeding on behalf of twelve Indian guest workers alleged to have been trafficked by the defendants. With Joseph R. Bjarnson, Esq. as lead counsel for the Firm, Sahn Ward Coschignano & Baker, PLLC serves as pro bono co-counsel on behalf of the Plaintiffs in David v. Signal International LLC. Click here for SPLC Press Release.

Posted by Joseph R. Bjarnson

Sahn Ward Coschignano & Baker, PLLC Wins Decision in International Contract Dispute


The Firm successfully opposed a plaintiff’s attempt to amend a complaint in a complex international contract dispute concerning the purchase and shipment of confectionary equipment involving European business entities.  Partners, Jon A. Ward, Esq. and Andrew M. Roth, Esq., and associate Joseph R. Bjarnson, Esq., represented the business entity being sued in the United States District Court for the Eastern District of New York by the plaintiff, a purchaser based in Switzerland, for, inter alia, breach of contract and breach of the implied covenant of good faith and fair dealing.

In GFE Global Finance & Engineering Ltd. v. ECI Limited (USA), Inc., et al., No. 12-CV-1801 (E.D.N.Y.), the plaintiff sought to amend its complaint, for the second time, to assert claims of breach of contract and breach of the implied covenant of good faith and fair dealing against ECI Limited (USA), Inc. (“ECI”) based on the allegation that ECI did not assist plaintiff in obtaining a copy of a bill of lading meant for plaintiff that ECI instead delivered to plaintiff’s agents, who were allegedly not acting with plaintiff’s authority or on its behalf.  In its previous complaints, plaintiff had asserted causes of action for breach of contract, specific performance and conversion based on similar facts.

The District Court denied plaintiff’s motion pursuant to Federal Rule of Civil Procedure 15(a)(2) for leave to amend its complaint on the grounds that plaintiff’s claims for breach of contract and breach of the implied covenant of good faith and fair dealing were futile.  Specifically, the District Court held that after ECI had delivered the bill of lading to plaintiff’s agent, as was contemplated under the contract and in prior dealings between the entities, ECI was not under further duty to supply plaintiff with a duplicate bill of lading after plaintiff’s agents failed to deliver the document to it.  The District Court noted that plaintiff could not point to any provision of the contract, or case authority, requiring ECI to take further actions, nor could plaintiff point to any allegation that ECI acted in bad faith by delivering the bill of lading to plaintiff’s agents, especially since plaintiff acknowledged that ECI had rightfully relied upon the agents’ apparent authority to act on plaintiff’s behalf at the time ECI delivered the bill of lading.  To read the Memorandum & Order, click here.

For more information on this case, or to discuss commercial litigation matters generally, please contact us.

Posted by Joseph R. Bjarnson

Electronic Filing of Litigation Documents to Become Mandatory in Suffolk County for All Commercial Division and Medical Malpractice Cases


On March 15, 2013, the electronic filing of litigation documents through the New York State Courts Electronic Filing System (“NYSCEF”) will become mandatory in Suffolk County for all Commercial Division and Medical Malpractice cases. For Commercial Division cases, the program applies only to those cases meeting the requisites of Uniform Rules of the Trial Courts § 202.70. As of March 15, those cases must be commenced electronically and initiating documents will not be accepted in hard copy form. Service of documents shall be in the traditional hard copy, however, the plaintiff/petitioner must serve the defendant/respondent a Notice of Commencement of Mandatory E-Filed Case. Thereafter, with limited exceptions, all documents must be e-filed.

Court fees are to be paid shall be paid by Master Card, Visa or American Express through NYSCEF. There will be no additional fees to utilize NYSCEF, to file documents in the system, serve documents through it, or print out hard copies from it.

Posted by Elaine Colavito

Sahn Ward Coschignano & Baker, PLLC Wins Dismissal for Employers of Fair Labor Standards Act and New York Labor Law Claims in Employment and Labor Lawsuit


The Firm recently won dismissal in a complex employment and labor case for three (3) separate companies operating under a trade name in the commercial kitchen cleaning and repair business. Partner, Jon A. Ward, Esq., and associates Ralph Branciforte, Esq. and Adam H. Koblenz, Esq. represented the businesses being sued in Manhattan Federal Court by former industrial cleaning employees for, inter alia, violations of the Fair Labor Standards Act, New York Labor Law and unjust enrichment for alleged nonpayment of overtime wages. To read the Decision/Order, click here.

Posted by Adam H. Koblenz



On January 23, 2013, the Commercial and Federal Litigation Section of the New York State Bar Association met in Manhattan for a pair of panels exploring the future of commercial litigation in the State, with a significant focus on recently proposed reforms to the Commercial Division. (NYLJ, Pierson, Panel Suggest Ways to Execute Reforms to Commercial Division, January 24, 2013). The Commercial Division of the New York State Supreme Court handles complex, commercial/business cases throughout the State.

The genesis of this critical review dates back nearly a year ago when Chief Judge Jonathan Lippmann first convened a panel entitled “The Chief Judge’s Taskforce Report on Commercial Litigation in the 21st Century: From Ideas to Implementation,” which focused on the execution of key reforms to the Commercial Division.

The latest panel was moderated by former Chief Judge Judith Kaye, who also co-chaired the Chief Judge’s task force. Other distinguished panelists included presiding judges from the Court of Appeals and Supreme Court, and other notable practitioners in the private sector.

Panelists noted the modicum of success achieved by the implementation of the Commercial Division, but emphasized that further changes are still needed to ensure a high quality is maintained and to “attract major players with important cases.” As one panelist aptly noted, “[t]o be a great court, you gotta get great cases.”

To this end, Judge Kaye put forth an initiative that could be achieved by “court rule without new money, leaving aside the taskforce’s recommendation for more judges and more judicial support.” Recent proposed measures include raising the threshold to enter the Commercial Division from $150,000 to $500,000 or more, ensuring that cases are assigned to the Commercial Division as early as possible without motion practice, and a proposed rule that a party must ask to have a case assigned to the Commercial Division within 90 days (or be precluded from having such case assigned to the Commercial Division).

We will continue to provide further updates on this task force and other proposed reform measures to the Commercial Division.

Posted by Adam H. Koblenz



On October 26, 2012, New York State Governor Andrew M. Cuomo issued Executive Order Number 47 declaring a disaster emergency in all 62 counties in the State of New York due to the impact of Hurricane Sandy.

Subsequently, on October 31, 2012, Governor Cuomo issued Executive Order Number 52 that, among other things, temporarily suspends and modifies certain statutory provisions under the New York Civil Practice Law and Rules (“CPLR”), as well as the Court of Claims Act, the Criminal Procedure Law (“CPL”), and the Family Court Act.  In relation to the time limitations for bringing a lawsuit, or taking an appeal, Executive Order Number 52 temporarily suspends (1) the deadline to bring a lawsuit if the statute of limitations for a claim was to expire during the immediate period following the Governor’s declaration of a disaster emergency (CPLR § 201); and (2) the deadline to take an appeal, cross-appeal or move for permission to appeal if such a deadline was to expire during the immediate period following the Governor’s declaration of a disaster emergency (CPLR § 5513; Court of Claims Act § 25).  Further, Executive Order Number 52 will remain in effect “until further notice.”

This Executive Order only pertains to those statutory provisions that a Court typically does not have jurisdiction to change or otherwise modify, which generally includes the time to commence an action and the time to appeal a decision or order of the Court.  As such, agreements amongst counsel, including, but not limited to, stipulations governing, for example, the time to answer or otherwise respond to a complaint, a discovery request, and motion practice are not covered by Executive Order Number 52.

Please consult us if you have any questions or concerns as to whether a claim you have, or that may arise in the near future, is affected by this Executive Order.  We will continue to provide further updates if any changes occur in this area of the law.

Executive Order Number 52 can be accessed here:  Suspension Of Time Limitations.

Posted by Jon A. Ward