Rule Against Perpetuities

How often do you see one of these?

It's a long decision.  I'm not editing down.  I am however, making you click a quarter way through to get to the rest of the case.  You could probably just click the link too.  Whatever you want to do is fine with me.

Bleecker St. Tenants Corp. v Bleeker Jones LLC, 2009 NY Slip Op 05196 (App. Div., 1st, 2009)

This appeal requires us to consider the centuries-old Rule against Perpetuities, [*2]specifically,
whether the exception to the prohibition against remote vesting of
options appurtenant to a lease is applicable to the renewal option
clause contained in the parties' lease.

Plaintiff Bleecker Street Tenants Corp. is the owner of the
building located at 277-279 Bleecker Street, a six-story walkup that
was converted to cooperative ownership effective September 1, 1983.
Contemporaneously with the co-op conversion, the building's first-floor
commercial space was leased to defendant Bleeker Jones LLC's
predecessor in interest, Bleecker Jones Leasing Company, a partnership
made up of the same four individuals who made up the sponsor

The lease, drafted by the tenant, provided for an initial term
of 14 years, with nine options to renew for consecutive 10-year
periods, exercisable through a series of notices. The tenant could
exercise the renewal options by giving written notice at least six
months before the end of the preceding term; the lease also provided
that the landlord would send the tenant a "reminder notice" regarding
the option, seven months before the end of the preceding term, if the
tenant had not already exercised the option. In the event that the
landlord did not send the seven-month notice and the tenant did not
exercise the option on six months' notice, then the renewal option
would remain in effect until such time as the landlord sent the tenant
notice of its right to exercise the option. Once the landlord sent the
tenant this final written notice, the tenant would have 60 days within
which to exercise the renewal option. The lease further provided that,
in the event that the renewal option went unexercised and the landlord
did not send the 60-day notice, then, "[i]f the term shall have
expired, Lessee shall remain in possession as a month-to-month tenant"
until such time as the landlord sent the 60-day notice.

At the end of the initial 14-year lease term, on August 30,
1997, there was no exercise of the lease option. Accordingly, the
commercial tenant thereafter remained in possession as a month-to-month

Plaintiff commenced this action in December 2007, seeking a
declaration that the lease renewal options are void under the statutory
and common-law rules against perpetuities and unreasonable restraints
on alienation.

Defendants moved, and plaintiff cross-moved, for summary
judgment. The motion court granted defendants' motion, ruling that the
Rule against Perpetuities does not apply because the lease's renewal
option is appurtenant to the lease, in that it " originates in one of
the lease provisions, is not exercisable after lease expiration, and is
incapable of separation from the lease'" (quoting Symphony Space v Pergola Props.,
88 NY2d 466, 480 [1996]). The court reasoned that during the period of
extended month-to-month possession, "[w]hile the term' of the lease may
expire upon the failure of either party to issue their respective
notices, the Lease itself does not."

New York's statutory Rule against Perpetuities includes a
codification of the common-law rule prohibiting the remote vesting of
interests and provides that "[n]o estate in property shall be valid
unless it must vest, if at all, not later than twenty-one years after
one or more lives in being at the creation of the estate . . ." (EPTL
9-1.1[b]). Stated another way, subsection (b) " invalidates any
interest that may not vest within the prescribed time period'" (Symphony Space v Pergola Props., 88 NY2d at 476, quoting Wildenstein & Co. v Wallis, 79 NY2d 641, 647-648 [*3][1992]).
The rule flows from "the principle that it is socially undesirable for
property to be inalienable for an unreasonable period of time" (Symphony Space,
88 NY2d at 475), and is designed to " ensure the productive use and
development of property by its current beneficial owners by simplifying
ownership, facilitating exchange and freeing property from unknown or
embarrassing impediments to alienability'" (id., quoting Metropolitan Transp. Auth. v Bruken Realty Corp.,
67 NY2d 156, 161 [1986]). Although the statutory period is lives in
being plus 21 years, where —- as here — the parties to the agreement
are corporate entities and no measuring lives are stated in the
instrument, "the perpetuities period is simply 21 years" (Symphony Space, 88 NY2d at 481; Bruken Realty, 67 NY2d at 161).

The rule against remote vesting has been held to be applicable to purchase options contained in leases (see Symphony Space at 476), as well as to lease renewal options contained in leases (see Warren St. Assoc. v City Hall Tower Corp., 202 AD2d 200, 200-201 [1994]).

On their face, all except the first of the renewal options
provided for here would run afoul of the rule, as they vest more than
21 years after execution of the lease (see e.g. Warren St. Assoc., supra).
However, an exception to the rule's generally strict application exists
for options appurtenant to a lease, which are considered "part of" the
lease (see Buffalo Seminary v McCarthy, 86 AD2d 435, 441 n5 [1982], affd
58 NY2d 867 [1983]). The required characteristics of such options are
that they (1) "originate[] in one of the lease provisions," (2) are
"not exercisable after lease expiration," and (3) are "incapable of
separation from the lease" (Symphony Space, 88 NY2d at 480).

Continue reading “Rule Against Perpetuities”

Worth Checking Out

When you get a chance, head over to Full Court Pass, a blog discussing mostly New York appellate law.  Authored by Norman A. Olch, who, going by his profile (the "about me" section of his blog), is full of the smarts.  I don't think he has a twitter account.

Anyways.  The blog is relatively new.  I chanced upon it when I was over at Sui Generis, checking to see if any of my posts (here or at the other blog) made it to her New York Legal Blog Round Up.  It didn't.  Fingers crossed for next week. 

So go have a look.  I like it.


Stern v Bluestone, 2009 NY Slip Op 04740 (Ct. App. 2009)

In August 2006, Supreme Court granted Stern summary judgment as to
liability on his first cause of action, concluding that Bluestone's
faxes "indirectly advertise[d] the commercial availability and quality"
of his services as a legal malpractice attorney. Supreme Court also
found "as a matter of law that Bluestone willfully and knowingly
violated the TCPA." In that regard, the court noted that Bluestone "was
served with a similar complaint for violation of the TCPA in 2003,
leading to summary judgment against him in this court [in] 2004." Upon
Bluestone's appeal, the Appellate Division, with two Justices
dissenting, reiterated Supreme Court's reasoning and affirmed. We now

In 2006, when it amended its rules implementing the TCPA and
the Junk Fax Prevention Act of 2005 (Pub L 109-21, 119 US Stat 359,
amending 47 USC § 227), the Federal Communications Commission (FCC)
elaborated on what constitutes an "unsolicited advertisement" (see 71 Fed Reg 25967 [2006], codified at 47 CFR

§ 64.1200). With respect to "informational messages" via facsimile, the FCC stated that

"facsimile communications that contain only information,
such as industry news articles, legislative updates, or employee
benefit information, would not be prohibited by the TCPA rules. An incidental advertisement contained in such a newsletter does not convert the entire communication into an advertisement . . . Thus, a trade organization's newsletter sent via facsimile would not constitute an unsolicited advertisement, so long as the newsletter's primary purpose is informational, rather than to promote commercial products" (id. at 25973 [emphasis added]).

conclude that Bluestone's "Attorney Malpractice Report" fits the FCC's
framework for an "informational message," and thus the 14 faxes are not
"unsolicited advertisement[s]" within the meaning of the TCPA. In these
reports, Bluestone furnished information about attorney malpractice
lawsuits; the substantive content varied from issue to issue; and the
reports did not promote commercial products. To the extent that
Bluestone may have devised the reports as a way to impress other
attorneys with his legal expertise and gain referrals, the faxes may be
said to contain, at most, "[a]n incidental advertisement" of his
services, which "does not convert the entire communication into an
advertisement" (id.). As a final matter, we note that Bluestone
did not cross-move for summary judgment in Supreme Court, and, unlike
Supreme Court and the Appellate Division, we are not empowered to
search the record and grant summary judgment to a nonmoving party (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]).

To read more about this case, head over to  Simple Justice and New York Personal Injury Law blog both contain a great discussion about the case and its implications for bloggers.

CPLR R. 5015 Relief from judgment or order; Poundage; CPLR § 321

CPLR R. 5015 Relief from judgment or order

CPLR § 5701 Appeals to appellate division from supreme and county courts

CPLR § 321 Attorneys
(a) Appearance in person or by attorney

Kurtzman v Bergstol, 2009 NY Slip Op 03871 (App. Div., 2nd, 2009)

The order dated May 27, 2008, did not decide a motion made on
notice, but merely directed a hearing to aid in the determination of
the appellants' motion. Therefore, no appeal lies as of right from that
order (see CPLR 5701[a][2]
). Inasmuch as leave to appeal has not been granted (see
CPLR 5701[c]), and we decline to grant leave to appeal in light of the
fact that the order dated May 27, 2008, was superseded by the order
dated August 1, 2008, the appeal from that order must be dismissed (see Mohler v Nardone, 53 AD3d 600).

The appellants' contention that the judgment should have been
vacated because the court lacked jurisdiction to issue it is without
merit; the sheriff was not required to commence a plenary action to
collect poundage
(see Martin v Consolidated Edison Co. of N.Y., 146 Misc 2d 756, 758, affd 177 AD2d 548; Knoll v Knoll,
78 Misc 2d 710, 711), as the party to be charged the poundage already
was a party to the lawsuit, and the enforcement of the money judgment
was conducted within the framework of the predicate actio
n (see Martin v Consolidated Edison Co. of N.Y., 146 Misc 2d at 758).

Pisciotta v Lifestyle Designs, Inc., 2009 NY Slip Op 04040 (App. Div., 2nd, 2009)

On appeal, Lifestyle argues that the plaintiffs failed to "bring . .
. proceedings for entry of a default judgment" within the requisite
one-year period, which should have resulted in the dismissal of their
complaint (see CPLR 3215[c]). Lifestyle also argues that, upon
renewal, its motion to vacate the order, inter alia, directing the
entry of a default judgment should have been granted because it
established a "reasonable excuse" for its failure to oppose the
plaintiffs' motion to strike its answer. Specifically, Lifestyle points
to the "uncontroverted medical testimony" of a skin disorder suffered
by Alex Szulman, the president and sole shareholder of Lifestyle,
which, Lifestyle claims, prevented him from personally participating in
the litigation. These arguments are without merit.

The entry of so much of the order entered October 2, 2003, as
struck Lifestyle's answer was the functional equivalent to Lifestyle
having defaulted in appearing or answering as of that date
(see Fappiano v City of New York, 5 AD3d 627, citing Rokina Opt. Co. v Camera King, 63 NY2d 728; see also Jones v Corley, 35 AD3d 381),
and the Supreme Court thus properly directed the entry of a default
judgment against Lifestyle in the same order. The record reveals that
the plaintiffs "[took] proceedings for the entry of a [default]
judgment" (CPLR 3215[c]) by serving and filing a note of issue and
certificate of readiness dated October 17, 2003. The service and filing
of the note of issue and certificate of readiness constituted the
plaintiffs' attempt to schedule the inquest that had also been directed
in the same order. That the Supreme Court failed to schedule an
inquest, possibly due to the pendency of Lifestyle's motion to vacate
that order, is not a circumstance that can be ascribed to any
procedural default or neglect on the part of the plaintiffs. Therefore,
there is no merit to Lifestyle's argument that the plaintiffs failed to
"bring . . . proceedings for entry of a default judgment" within the
requisite one-year period.

Similarly without merit is Lifestyle's argument that Szulman's
skin disorder prevented him from participating in the litigation, thus
providing Lifestyle with a "reasonable excuse" for its failure to
oppose the motion that resulted in the order, inter alia, directing the
entry of a default judgment. Szulman's personal medical disorder does
not excuse the corporation's failure to oppose the motion to strike its

An order made on default should, in general, not be vacated
pursuant to CPLR 5015(a)(1) unless the movant can show "a reasonable
excuse for failing to oppose the [prior] motion"
(Faga v Harrison Cent. School District, 40 AD3d 690,
690). Whether a party seeking relief under CPLR 5015(a)(1) has
demonstrated a reasonable excuse is a matter that is left to the
provident exercise of the discretion of the Supreme Court (see Green Apple Mgt. Corp. v Aronis, 55 AD3d 669). The Supreme Court did not improvidently exercise its discretion in the order now under review.

The only explanation Lifestyle proffered to the Supreme Court
and this Court for its nonappearance at the conference is that, at the
time the order, inter alia, directing the entry of a default judgment
was entered, Lifestyle was proceeding "pro se." However, Lifestyle's
purported "pro se" status violates CPLR 321(a), which requires a
corporation to appear by attorney only. Reliance on such a violation
cannot constitute a reasonable excuse for a default (see Jimenez v Brenillee Corp., 48 AD3d 351,
352 ["(a) corporate defendant's failure to comply with CPLR 321
provides no basis for vacating a judgment entered against that
defendant"]; Mail Boxes Etc. USA v Higgins, 281 AD2d 176; cf. Guerre v Trustees of Columbia Univ. in City of N.Y., 300 AD2d 29).

In the absence of any valid explanation for its default,
Lifestyle failed to establish a "reasonable excuse for failing to
oppose the [prior] motion" (Faga v Harrison Cent. School District, 40 AD3d at 690).

The bold is mine.

And one other case that was just interesting enought to get in here, Diamond Truck Leasing Corp. v Cross Country Ins. Brokerage, Inc., 2009 NY Slip Op 03862 (App. Div., 2nd, 2009).

CPLR. 3211(a)(1) Documentary Evidence

CPLR R. 3211(a)(1) defense is founded upon documentary evidence

Surace v Commonwealth Land Tit. Ins. Co., 2009 NY Slip Op 04050 (App. Div., 2nd, 2009)

On April 5, 2005, the plaintiffs obtained a mortgage interest in
real property in the principal sum of $360,000. The plaintiffs obtained
title insurance from the defendant. The defendant did not submit the
mortgage document for recording until January 30, 2006. In the interim,
on July 14, 2005, a second mortgage was taken out on the property. This
second mortgage was recorded on August 1, 2005. Thus, the second
mortgage was recorded before the first mortgage held by the plaintiffs,
and became the first lien on the property. The plaintiffs commenced
this action, alleging, inter alia, a breach of the title insurance
policy and the negligent failure to timely record the mortgage.

To prevail on that branch of its motion which was to dismiss
the complaint pursuant to CPLR 3211(a)(1), the defendant was required
to demonstrate that "the documentary evidence utterly refutes
plaintiff's factual allegations, conclusively establishing a defense as
a matter of law" (Goshen v [*2]Mutual Life Ins. Co. of N.Y., 98
NY2d 314, 326). Insofar as the defendant's motion is predicated upon
CPLR 3211(a)(7), the court is required to "accept the facts as alleged
in the complaint as true, accord plaintiffs the benefit of every
possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory"
(Leon v Martinez, 84 NY2d 83, 87-88).

The complaint states a valid cause of action alleging a breach
of the title insurance policy. The complaint also states a valid cause
of action alleging negligence, which is independent of the parties'
contract of insurance (see Gem Servs. of N.Y. v United Gen. Tit. Ins. Co., 28 AD3d 516; Cruz v Commonwealth Land Tit. Ins. Co., 157
AD2d 333). Moreover, contrary to the arguments of the defendant, the
documentary evidence failed to refute the plaintiffs' allegations.

Etzion v Etzion, 2009 NY Slip Op 03688 (App. Div., 2nd, 2009)

In order to prevail on that branch of their cross motion which was to
dismiss the complaint pursuant to CPLR 3211(a)(1), the defendants were
required to demonstrate that "the documentary evidence utterly refutes
plaintiff's factual allegations, conclusively establishing a defense as
a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d
314, 326)
. Insofar as the defendants' cross motion was predicated upon
CPLR 3211(a)(7), the court is required to "accept the facts as alleged
in the complaint as true, accord plaintiffs the benefit of every
possible favorable inference, and determine only whether the facts as
alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88). "Whether the plaintiff can ultimately establish the allegations is not part of the calculus'" (Aberbach v Biomedical Tissue Servs., Ltd., 48 AD3d 716, 717-718, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19).

Conflict of Law / Choice of Law

Begley v City of New York, 2009 NY Slip Op 03856 (App. Div., 2nd, 2009)

In this action, the plaintiffs, who reside in New York, allege that
their son was exposed to various substances at the Forum School in New
Jersey, which caused a severe allergic reaction that led to his death.
The Forum School moved for summary judgment dismissing the complaint
and cross claims insofar as asserted against it on the ground that it
is immune from liability under New [*2]Jersey's
charitable immunity statute (NJ Stat Ann § 2A:53A-7), which provides,
in relevant part, that a nonprofit organization that is organized
exclusively for educational purposes is not liable for damages caused
by the charity's negligence. This case presents a conflict of law
problem because the New York Court of Appeals abandoned the concept of
charitable immunity more than 50 years ago on the ground that it "was
out of tune with the life about us, at variance with modern day needs
and with concepts of justice and fair dealing"
(Bing v Thunig, 2 NY2d 656, 667).

Where, as here, there is a "true conflict" between the law of
New Jersey and the law of New York and the local law in each
jurisdiction favors its own domiciliary, the law of the place of the
injury ordinarily governs the case
(see Neumeier v Kuehner, 31
NY2d 121, 128). In this case, however, the Supreme Court properly
applied the public policy exception to the ordinary choice of law rule
because (1) there were sufficient contacts between the parties, the
occurrence, and New York and (2) enforcing New Jersey's charitable
immunity statute would violate the public policy of New York State
(see Schultz v Boy Scouts of Am., 65 NY2d 189, 202) as embodied in the New York State Constitution article 1, § 16 and judicial decisions (see Rosenthal v Warren, 374 F Supp 522; Scharfman v National Jewish Hosp. & Research Ctr., 122 AD2d 939; Rakaric v Croatian Cultural Club Cardinal Stepinac Org., 76 AD2d 619).

Travelers Cas. & Sur. Co. v Honeywell Intl., Inc., 2009 NY Slip Op 04360 (App. Div., 1st, 2009)

In Certain Underwriters at Lloyd's, London v Foster Wheeler Corp. (36 AD3d 17 [2006], affd
9 NY3d 928 [2007]), this Court, after noting that a contract of
liability insurance is generally "governed by the law of the state
which the parties understood was to be the principal location of the
insured risk"
(id. at 21-22 [internal quotation marks omitted]),
held that "where it is necessary to determine the law governing a
liability insurance policy covering risks in multiple states, the state
of the insured's domicile [at the time of contracting] should be
regarded as a proxy for the principal location of the insured risk" (id. at 24), and that, for such purposes, a corporate insured's domicile is the state of its principal place of
business, not the state of its incorporation
(id. at 25; see also Appalachian Ins. Co. v Di Sicurata, 60 AD3d 495
[2009]). There is no dispute that the principal place of business of
the insured's predecessor, the purchaser of the policies, was in New
Jersey. Neither the predecessor's use of a New York address on some of
the policies (while also using a New Jersey address on some of the same
policies or only a New Jersey address on yet other policies), nor the
predecessor's use of New York brokers, nor the use of New York
amendatory endorsements on some of the policies (while New Jersey's or
other states' or no state-specific amendatory endorsement was used on
others), nor any of the other incidental connections to New York on
which appellants rely, raises a triable issue of fact as to whether the
predecessor made a conscious choice of New York law at the time of
contracting, or whether the application of New York law constituted the
parties' reasonable expectation, where not one of the policies contains
a choice-of-law provision and all parties knew that the risks were
spread nationwide and that the predecessor's principal place of
business was in New Jersey
(cf. Foster Wheeler at 27-28).

The bold is mine.

I’m still about a week behind

But now that Typepad no longer forces me to tag the blockquotes myself, I should be caught up by the end of the week.  The week after that, I'll be in LA talking about WEB 2.0 – Five Things Every Practice Should
Know about Web 2.0 Technology, at LegalTech.  Twitter has a wealth of information about LegalTech, in 140 Characters or less.  Click here to get most of them.  If you plan on using twitter on a daily basis, consider using  tweetdeck.  There are others, but I like it the best, so far.

Qualified Privilege and Hearsay

Garcia v Puccio, 2009 NY Slip Op 04121 (App. Div., 1st, 2009)

On a prior appeal in this action (17 AD3d 199 [2005]), we found that
plaintiff, a teacher, stated a cause of action for defamation where he
alleged that defendant Puccio told a student's parent that plaintiff
had been accused of corporal punishment before. We noted that
defendants' claims of truth and qualified privilege were affirmative
defenses to be raised in the answer and that "[d]efendants may then
move for summary judgment on any such defense available to them and,
upon their making a prima facie showing of truthfulness or qualified
privilege, the burden would shift to plaintiff" (id. at 201).

Defendants' summary judgment motion included Ms. Puccio's
unequivocal denial of making the subject statement, establishing a
prima facie showing of a lack of the requisite publication of a
defamatory statement
(see Parker v Cox, 306 AD2d 55 [2003]; Snyder v Sony Music Entertainment, Inc.,
252 AD2d 294, 298 [1999]). In opposition, plaintiff failed to establish
a triable issue of fact as to whether the alleged statement was made
and published (see id.; see also Alvarez v Prospect Hosp.,
68 NY2d 320, 324 [1986]). Rather, plaintiff offered only hearsay, i.e.,
an out-of-court statement by the parent's mother that Ms. Puccio had
made the alleged statement. The statement by the mother that Ms. Puccio
made the statement was offered for its truth (i.e., that Ms. Puccio had
made the statement).
The only statement Ms. Puccio admitted making,
that she told the parent that there were "problems" or "problemas" with
plaintiff, was a true statement made in response to a direct question,
without any elaboration, was not susceptible of a defamatory meaning
and did not constitute defamation (see Dillon v City of New York,
261 AD2d 34, 38 [1999]). In any event, the statement would be protected
by a qualified privilege, having been made by a high school principal
to a student's parent who had a [*2]common interest in the subject matter of the conversation
(see Garcia v Puccio, 17 AD3d at 201; Hoesten v Best, 34 AD3d 143, 157-158 [2006]).

The bold is mine.

Look for posts tomorrow. Maybe later today

 A lot of good stuff has come out in the past few weeks, but I've been busy lawyering, tinkering with my other blog and trying to figure out wordpress, among other things. Today, I built a house.  That was a gigantic pain in the ass.  You see those stairs to the right of the dog?  He is petrified of going up or down them.  Petrified. Thenewhouse