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Claims involving adjoining land owners have proliferated in the last several years as construction activities in the New York City area have continued to be especially active. One area of concern, especially for builders of town houses and other residences is how to deal with party walls.  The First Department, in Ehrenberg v. Regier, 142 A.D.3d 765, 37 N.Y.S.3d 10 (1st Dep’t 2016), addressed various issues of note regarding these structures.

A party wall is a wall between two adjoining properties which exists for the common benefit of both owners. These walls provide for the support of structures on each property and can only be altered by one owner if they do not damage the building owned by the adjacent neighbor. Each owner of a party wall owns it to the extent the wall is on his property, and each owner has an easement of use and support over the wall to the extent it is on the neighbor’s property.

In Ehrenberg, the party wall in question dated to the 1840’s. After a bulge was found in a section of the party wall the Ehrenbergs removed and replaced a portion of the wall. After this work was performed it was discovered that the party wall was damaged. The Ehrenbergs commenced a legal action alleging that the damage was the result of the Reiger’s negligent maintenance of the Reiger’s side of the party wall. Reiger counterclaimed, alleging that the reconstruction and repair to the party wall undertaken by the Ehrenbergs had caused the damage.

A New York court recently recognized the importance of the public’s access to government records. On December 13, 2016, Justice Robert J. Muller granted Petitioners access under the Freedom of Information Law (“FOIL”) to a hearing officer’s report and recommendation that was considered by the City of Glens Falls Common Council (the “Council”) in the termination of a City of Glens Falls (the “City”) employee.

Petitioner’s sought a copy of the hearing officer’s report and recommendation regarding Lauren M. Stack, the City’s assessor, after she pled guilty in August 2016 to, among other things, driving while ability impaired. The City brought disciplinary charges against her and the Council ultimately terminated her employment on the recommendation of the hearing officer.

Petitioner Maury Thompson, a reporter for The Post-Star and Petitioner Kathy Barrans, a television producer at WNYT-TV, submitted separate FOIL requests to the City’s records officer, who denied their requests. This determination was upheld on administrative appeal by the records appeal officer and an Article 78 proceeding ensued.

The Second Circuit, acting after receiving guidance from the New York State Court of Appeals, has rejected the assertion of a New Jersey attorney that New York’s “working office” requirement was unconstitutional.  In Schoenfeld v. Schneiderman, et al., 2016 WL 1612845 (2nd Cir. 2016), decided on April 22, 2016, a divided panel upheld the requirement of N.Y. Judiciary Law § 470 that a nonresident member of the state bar could only conduct the business of law in the State of New York if she had a physical office for the transaction of business within the State.  For now, the ruling clarifies the type of office needed to meet this requirement beyond merely having an address at which to receive service.

In Schoenfeld, the plaintiff was a resident and attorney of the State of New Jersey who had passed the New York bar and believed that the working office requirement was a violation of the Privileges and Immunities Clause of Constitution (U.S. Cons., art. IV, § 2) prohibiting discrimination by one State against the citizens of another State.  Plaintiff argued that, insofar as New York residents could fulfill the office requirement with a home office, it was discriminatory against non-resident attorneys who could not similarly practice law out of their homes.  After a judge in the Southern District of New York agreed, the New York Attorney General (“NYAG”) appealed the decision to the Second Circuit.  The NYAG argued that the no constitutional impediment should be found because (1) the office requirement could be met by having an address at which service could be made within the State and, (2) even if non-resident attorneys were treated differently, any burden was insubstantial and substantially related to the oversight of service of papers within the State.  Upon the filing of the appeal, in order to determine if there was a threshold constitutional question, the Second Circuit certified a question for the New York Court of Appeals to answer: what are the minimum requirements necessary to meet the working office requirement of Judiciary Law § 470?  In an opinion that tracked the history of the statute and its predecessors, the New York Court of Appeals determined that, since the original requirement that an office was needed for service of process concerns had been severed from later versions of § 470, the wording of the statute at present could only mean that a physical office located within the State of New York, and not just an address for service of papers, was required. Schoenfeld v. State of New York, et al., 25 N.Y.3d 22 (2015).

Having received the answer to its certified question, the Second Circuit then ruled, based on its interpretation of the U.S. Supreme Court opinion in McBurney v. Young, 133 S. Ct. 1709 (2013).  The Second Circuit held that, in the absence of any “protectionist” intent with respect to the passage of the original version of the statute, the mere fact that citizens of other states may be treated differently did not automatically result in a violation of the Privileges and Immunities Clause.  2016 WL 1612845, at *5.  With specific regard to Judiciary Law § 470, the Second Circuit found that the statute had been enacted to ensure that non-resident attorneys could practice in New York, not to protect New York attorneys from non-resident attorneys.  Thus, no protectionist intent was shown. Id., at *5 – *7.  The Second Circuit further noted that the working office requirement was not a substantial burden on a non-resident attorney’s ability to practice law. Id., at *8.  Indeed, the Second Circuit argued that plaintiff herself was seeking favoritism in light of her request to be freed from a restriction that applied to every member of the New York State Bar wishing to practice law in the State. Id., at *9.

On February 24, 2015, the New York Court of Appeals granted appellants’ motion for leave to appeal in Glick v. Harvey, 2015 WL 753795 (N.Y. Feb. 24, 2015), which should result in a significant ruling by New York’s highest court concerning the parameters of the implied public trust doctrine.  The public trust doctrine provides that public parkland is impressed with a public trust, and requires the consent of the State Legislature before parkland can be alienated or used for non-park purposes. The Glick case concerns an Article 78 proceeding challenging a New York City Council resolution approving an expansion plan for New York University which seeks to use four land parcels that had been used as New York City parks since the 1980’s and 1990’s, to be used for non-park purposes.  The New York State Legislature has not consented to the use of this parkland for non-park purposes.  NYU’s expansion plan called for the construction of four new buildings, and the use of the following four parcels of parkland for non-park purposes: Mercer Playground, LaGuardia Park, LaGuardia Corner Gardens (a community garden), and the Mercer-Houston Dog Run.  Accordingly, petitioners, a series of individuals and citizens’ groups, sought to enjoin the implementation of NYU’s plan unless and until they obtained the consent of the State Legislature to use the parkland for non-park purposes.  The respondents in the case are various agencies and authorities of the State and the City of New York that had approved NYU’s plan.

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