Easement | Facebook Discovery | Landlord/Tenant

Original Content

The Right To Use Driveway Was Not Permanent

The Right to Use Driveway Was Not Permanent

In Serafin Props. v. Amore Enters. Inc. a court recently concluded that the plaintiff did not have a prescriptive easement in the defendant’s property.

Unlike the law of adverse possession, by which an individual in possession of land owned by another may over time become fully vested with title to the land, a prescriptive easement acquired over time provides only a limited interest in the land, but once acquired, that limited interest may not be involuntarily abridged or divested.

A prescriptive easement is a property interest acquired through a party’s unauthorized use of another’s real property for a certain period of time. If that party can prove their use met the required elements, the easement grants the party a right to use a specific portion of the property for a specific use. Because a prescriptive easement is by definition established without the landowner’s consent, an easement by prescription is generally demonstrated by proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the rescriptive period.

By contrast, New York’s adverse possession statute provides that an “adverse possessor gains title to the occupied real property upon expiration of the statute of limitations for an action to
recover real property pursuant to [CPLR §212], provided that the occupancy…has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.”

Although the period within which a prescriptive easement ripens is the same 10-year period required to vest title by adverse possession, the claimant to a prescriptive easement is not required to prove that his or her use of the land was exclusive.

Here, the plaintiff sought a prescriptive easement in a portion of defendant’s abutting commercial real property. The dispute arose from plaintiff’s use of a 30-foot strip of defendant’s property—a driveway. Both parties moved for summary judgment before trial. The Court noted that where “the party seeking a prescriptive easement establishes an open, notorious, and continuous use of property for the prescriptive period, a presumption arises that such use was hostile. Where the presumption of a hostile use arises, the burden shifts to the owner of the servient estate, here Defendant, to show that the use was permissive. The presumption of hostility has arisen in this matter.” The Court found material issues of fact existed over whether plaintiff’s use of the driveway during the prescriptive period was “hostile” or “permissive,” and directed that was the sole issue to be tried.

At the trial the Court found the testimony of defendant’s president, Mr. ModicaAmore, credible and consistent with testimony of non-party members of the industrial park complex. It noted the witnesses’ use of words and phrases, including “no disputes over it,” and “agreed upon,” connoted a permissive, rather than hostile, use of the premises, and were consistent with Mr. ModicaAmore’s testimony. Also, such testimony was consistent with a letter from an attorney to plaintiff’s predecessor in interest indicating they were allowed to use a portion of the driveway for ingress and egress. It ruled plaintiff did not currently have, nor ever had, a prescriptive easement in defendant’s property, dismissing the complaint.

Facebook is Opened Wide in Discovery

Facebook is Opened Wide in Discovery

In Forman v. Henkin, New York State’s highest Court held that the “threshold inquiry” for social media disclosure is whether the materials sought are “reasonably calculated to contain relevant information.” The Court rejected the “heightened threshold” previously applied by lower courts. That higher threshold had “conditioned discovery of material on the
‘private’ portion of a Facebook account on whether the party seeking disclosure demonstrated there was material in the ‘public’ portion that tended to contradict” plaintiff’s claims. The Forman case involved a horseback rider, who fell from a horse and allegedly suffered spinal and traumatic brain injuries, and brought a personal injury action against the owner of the horse. Although this case involved discovery in a tort action, there is no reason why it should be limited to that type of case and may, for example, be used by employers defending discrimination claims in which the plaintiff claims “emotional distress.” Social media accounts may be a good source of evidence of claimant’s feelings, thoughts, and mental impressions.

At her deposition, plaintiff stated that she previously had a Facebook account on which she posted “a lot” of photographs showing her pre-accident active lifestyle but that she deactivated the account about six months after the accident and could not recall whether any post-accident photographs were posted. She maintained that she had become reclusive as a result of her injuries and also had difficulty using a computer and composing coherent messages. She produced a document she wrote that contained misspelled words and faulty grammar in which she represented that she could no longer express herself the way she did before the accident. She contended that a simple email could take hours to write because she had to go over written material several times to make sure it made sense.

The defendant sought an unlimited authorization to obtain plaintiff’s entire “private” Facebook account, arguing the photographs and written postings would be material and necessary to his defense of the action, and when the plaintiff failed to provide the authorization, the defendant moved to compel, asserting that the Facebook material sought was relevant to the scope of plaintiff’s injuries and her credibility. The defendant noted that plaintiff alleged that she was quite active before the accident and had posted photographs on Facebook reflective of that fact, thus affording a basis to conclude her Facebook account would contain evidence relating to her activities. The defendant cited the claims that plaintiff can no longer cook, travel, participate in sports, horseback ride, go to the movies, attend the theater, or go boating, contending that photographs and messages she posted on Facebook would likely be material to these allegations and her claim that the accident negatively impacted her ability to read, write, word-find, reason and use a computer.

The plaintiff opposed the motion arguing that defendant failed to establish a basis for access to the “private” portion of her Facebook account because the “public” portion contained only a single photograph that did not contradict plaintiff’s claims or deposition testimony.

The Court of Appeals was faced with the Appellate Division’s conclusion in the discovery dispute that the defendant had not met his threshold burden of showing that the materials from plaintiff’s Facebook account that were ordered to be disclosed by the Supreme Court’s order “were reasonably calculated” to contain evidence “material and necessary” to the litigation. In reversing the Appellate Division, the Court of Appeals ruled that the Appellate Division “erred in modifying Supreme Court’s order to further restrict disclosure of plaintiff’s Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial. With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff’s Facebook account was reasonably likely to yield relevant evidence. At her deposition, plaintiff indicated that, during the period prior to the accident, she posted “a lot” of photographs showing her active lifestyle. Likewise, given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff’s assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.”

In addition, the Court stated “it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiff’s claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, particularly her claim that she is painstakingly slow in crafting messages.”

100% Abatement For Warranty Of Habitability Breach Found Excessive

100% Abatement for Warranty of Habi tability Breach Found Excessive
In Israel Realty v. Shkolnikov, a Sublessor (i.e., the “landlord” of the subtenant) appealed from a final judgment awarding its subtenant a 100 percent rent abatement, dismissing the nonpayment summary proceeding, and awarding the subtenant over $28,000 in attorney fees. The Subtenant cross-appealed the judgment limiting her attorney fees recovery to the amount the trial court had found reasonable.


The Appellate Court found evidence supported the trial court’s decision of a “breach of the warranty of habitability” when the subtenant’s ground floor terrace was closed to be used as a staging area to erect scaffolding to perform mandatory Local Law 11 repair work on the building facade.


New York’s Real Property Law § 235-B, titled “Warranty of habitability” provides, in part, as follows:

In every written or oral lease or rental agreement for residential premises
the landlord or lessor shall be deemed to covenant and warrant that the
premises so leased or rented and all areas used in connection therewith in
common with other tenants or residents are fit for human habitation and for
the uses reasonably intended by the parties and that the occupants of such
premises shall not be subjected to any conditions which would be dangerous,
hazardous or detrimental to their life, health or safety. When any such
condition has been caused by the misconduct of the tenant or lessee or
persons under his direction or control, it shall not constitute a breach of
such covenants and warranties.

The Court rejected the sublessor’s attempt to avoid liability for breach, and recognized that a “subtenant may properly assert the warranty of habitability as a defense to a nonpayment claim by a sublessor/proprietary lessee of an apartment” and it made no difference that “the ‘culprit’ is the cooperative, since the statutory warranty of habitability can apply to conditions resulting
from events beyond a landlord’s control.” Additionally, the Court recognized that an “exculpatory clause in the parties’ sublease agreement was not a bar to the defense of the breach of the warranty of habitability, ‘since section 235-b of the Real Property Law voids any lease provision that purports to modify any tenant’s rights arising thereunder.’”

However, the Court concluded that the 100 percent abatement was excessive, ruling instead that a 60 percent abatement more closely represents “the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach.” The Court reasoned: “This reduced batement, though substantial, was warranted by the evidence, which showed, inter alia, that respondent was completely deprived of use of the patio area, which was nearly twice the size of the interior of the apartment, and that the scaffolding work and the resulting dust accumulation prevented respondent from opening her windows and reduced the amount of light, air and ventilation inside the partment.”

The Court concluded that as the “prevailing party in this proceeding,” the subtenant “was entitled to attorneys’ fees pursuant to paragraph 28 of the proprietary lease, which was incorporated by reference into the sublease, and the reciprocal provisions of Real Property Law §234. Viewing the evidence presented in light of all relevant factors, including the time and labor required, the difficulty of the questions involved, and the lawyer’s experience, ability and reputation, we find, based upon our independent review of the record, that the fee award was reasonable under the circumstances.”

This newsletter is provided by Hamburger, Maxson & Yaffe, LLP to keep its clients, prospective clients, and other interested parties informed of current legal developments that may affect or otherwise be of interest to them, and to learn more about our firm, our services and the experiences of our attorneys. The information is not intended as legal advice or legal opinion and should not be construed as such

Original Content