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Home > Underwriting > Title News > Nineteen Volume Twelve

SERIES: Nineteen VOLUME: Twelve DATED: December, 2004


A recent Appellate decision, Bennett v. Citicorp Mortgage, Inc. et al (Appellate Division, Fourth Department, decided June 14, 2004) reviewed and reversed a lower court decision which had refused to dismiss litigation brought by a purchaser of real estate who claimed that the defendant seller had misrepresented the amount of acreage included in the proposed conveyance. The Court's memorandum decision and order held as follows:


It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint and cross claims against defendant Audrey Edelman & Associates are dismissed.

Memorandum: Supreme Court erred in denying the motion of defendant Audrey Edelman & Associates (Edelman) seeking summary judgment dismissing the complaint and cross claims against it. This action arises from the purchase of real estate by plaintiffs from defendant Citicorp Mortgage, Inc. (Citicorp) in a transaction in which Edelman was the listing agent and defendant Commonfund Mortgage Corporation was the mortgagee. Plaintiffs commenced this action after discovering that the deed conveyed fewer acres than they expected. Plaintiffs seek damages from Edelman for fraud and negligent misrepresentation based on alleged misrepresentations by Edelman that Citicorp had 15 acres to sell and that all 15 acres were included in the purchase.

We agree with Edelman's contention that any reliance by plaintiffs upon those alleged misrepresentations was not justified or reasonable. Citicorp's ownership of only five acres was a matter of public record, readily ascertainable from the abstract of title provided to plaintiffs' attorney for her review prior to the closing. Indeed, the deed accurately sets forth the description and boundaries of the property. Plaintiffs 'had the means available to [them] of knowing, by the exercise of ordinary intelligence, the truth concerning the description and boundary[ies] of the land . . . [and, because they] failed to make use of such means, [they] will not be heard to complain that [they were] induced to enter into the purchase by misrepresentation' ... We reject the contention of plaintiffs that they are not charged with notice of the discrepancies that their attorney failed to disclose to them ... We therefore grant the motion of Edelman and dismiss the complaint and cross claims against it."


In a recently decided action for a declaratory judgment that the plaintiffs possessed an easement by prescription over lands of the defendants, Asche v. Land & Building et al (Supreme Court, Appellate Division 2nd Department, decided November 8, 2004), the Appellate Court upheld a lower court decision which denied the existence of an easement by adverse use with the following decision and order:


ORDERED that the judgment is modified by adding thereto a provision declaring that the plaintiffs do not have an easement over the subject strip of land; as so modified, the judgment is affirmed, with costs to the respondents.

The plaintiffs claim that they are entitled to a permanent easement over a section of the defendants' property that is 18" wide, abuts the plaintiffs' driveway, and extends from the front of the building line to the rear (hereinafter the disputed strip). The plaintiffs and their predecessors-in-title have used the disputed strip as part of their driveway since 1951 when the subdivision that includes their property was created.

The party seeking to prove that an easement was established must do so by clear and convincing evidence . . . To acquire an easement by prescription, it must be shown that the use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period . . . In this case, the original owners of the plaintiffs' property and the original owners of the respondents' property executed a license in 1966 permitting the original owners of the plaintiffs' property to use the disputed strip. The terms of this agreement rebut the presumption of adversity needed to establish a prescriptive easement . . .

Furthermore, as to the establishment of an easement by necessity or an easement by implication, the plaintiffs had to prove, inter alia, the element of necessity. For the former they were required to show that their use of the disputed strip was absolutely necessary for the beneficial enjoyment of their property, and for the latter that their use was reasonably necessary for such enjoyment . . . The plaintiffs' property never had a garage in the rear, and the plaintiffs failed to show that the disputed use would provide anything more than a convenience . . .

We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the respondents rather than, in effect, dismissing the complaint . . . "

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