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Adverse possession is a legal theory that allows one to assert a claim to property that is not his by taking, using and maintaining that property as if it were his. An adverse possession claim is typically asserted where one property owner makes use of part of a neighbor’s property, for example a portion of a driveway, for an extended period and then claims ownership to that part of the driveway when challenged by the true owner. To make out a claim for adverse possession, the adverse possessor must establish that he has been using that property, exclusively and openly, as if it were his, for a period of 10 years. In addition, in most situations, the adverse possessor must also improve or enclose the property. The idea is for the possessor to act as if he owns the property, ostensibly putting the true owner on notice that his property is being used by another.

Until recently, there was a question as to whether the possessor had to know that the property that he was using was not his to satisfy the requirement that it be used openly, as if he owned it. One appellate court held that a possessor’s knowledge that the property belonged to someone else would defeat an adverse possession claim because the possessor’s use could never be considered use as an owner. A different appellate court, however, held that the possessor’s knowledge is irrelevant to the determination of adverse possession. So long as the possessor used the property as if he owned it, his knowledge, intent, and good faith, are immaterial. This theory allows an adverse possession claim even if the possessor knew that the property which he used and now claims to own by adverse possession belonged to his neighbor during the time that he used it. Essentially, this allows one to use his neighbor’s backyard, in an open and notorious manner and years later claim ownership to that backyard, notwithstanding that the true owner was known to the possessor the entire time.

Recently, the question of the possessor’s knowledge reached New York’s highest court, the Court of Appeals. In Walling v. Przybylo, the court decided that so long as the possessor used the property as if it were his, to the exclusion of the true owner and without the owner’s objection, the possessor’s knowledge that the property was never his would not defeat the adverse possession claim. This decision surprised many as it seems to condone ownership by trespass.

Due to defendant’s failure to comply with certain court orders, the court entered a judgement for liability against defendant in plaintiff’s lawsuit after she fell on defendant’s steps. At inquest, plaintiff was awarded $150,000 for future pain and suffering. Plaintiff died the next day. Defendant argued that the $150,000 awarded for what was one day of pain and suffering was unfair and contrary to the legislature’s attempt to reform tort awards. The Court found that the legislature’s efforts were directed at awards above $250,000 and allowed the $150,000 award to stand, particularly where defendant caused plaintiff’s case to be significantly delayed.

Plaintiff underwent an abortion at defendant’s facility. Plaintiff specifically told defendant not to contact her at home, as she knew that her parents would not approve of the procedure. Nevertheless, not only did defendant call plaintiff at home, but the nurse provided enough information to plaintiff’s mother so that her mother understood that plaintiff had undergone an abortion. Although the court did not find that defendant conducted itself in bad faith or that defendant’s conduct was intentional, it found that punitive damages were permitted, as neither bad faith nor intentional conduct was required for such a finding. So long as the conduct complained of was negligent or reckless and sufficiently blameworthy, and advances a strong public policy to deter future conduct, punitive damages may be awarded. In this case, the court found that defendant’s failure to have a formal, written plan to protect its patient’s privacy, particularly given the sensitive nature of the procedures, and the failure by the Center to be sufficiently organized to prevent the kind of disclosure complaint of, together with the careless disclosure by the nurse of private information to one she knew to be plaintiff’s mother was sufficient to allow punitive damages.

Plaintiff, a luxury ship owned and used by its residents, sought to expel defendant, a resident, for improper conduct. Because the court found that the resident compromised the safety and comfort of other residents, in violation of the ship’s rules, the ship’s board acted in its discretion. Nonetheless, the court directed that defendant was entitled to compensation for his unit as the rental income was insufficient to cover his costs and resale was not likely to be achieved.

Bank sued homeowner for default of a mortgage. Defendant homeowner claimed that bank failed to deduct the monthly payments automatically as was agreed to between the parties. The court held that because homeowner attempted to make payments, and in fact made some of the payments manually, and that the mortgage payments were at all times available in his account, bank was unable to establish a default. (March 2007)

To retain and attract customers, companies and business must be creative in marketing their products and services. An attractive and popular way to do that, is to sponsor games such as contests or sweepstakes. These are typically less expensive than other methods as costs are often shared by more than one promoting company, and are popular with the public because prizes are awarded. It is important to keep in mind, however, that this type of marketing is governed by laws which vary by state, and has technical requirements that are not well publicized. As such, games must be well planned and properly executed. This article will provide an overview of the differences between sweepstakes and contests and highlight issues facing those who sponsor these games to the public.

There are three elements to these types of games: Chance, consideration (meaning a payment of some kind, including the effort involved in creating and submitting something) and a prize. Lotteries, which contain all three elements, are state sponsored but otherwise illegal. Contests and sweepstakes contain only two of these three elements and for that reason are allowed. Contests, where people submit something hoping to win a prize, involve consideration (whatever is being submitted, such as an essay or drawing) and a prize. Sweepstakes have elements of chance and a prize. If a contest were to have an element of chance or, if a sweepstakes were to require consideration, that contest or sweepstakes would violate the law.

Despite well-planned events, the element of chance some- times creeps into a contest and can doom it. For example, where judging criteria is not properly set forth, or if the judges are not qualified to judge the entries, submissions are deemed to be subject to chance. In addition, a contest must require that the entrant exhibit a true skill, though not necessarily an advanced skill, otherwise it may be deemed to include an element of chance (such as “count the jelly bean” contest where no true skill is involved).

The plaintiff, a construction worker, fell and was hurt while working on defendant’s yacht. The plaintiff sued for his injuries. Under the labor law, one and two family dwellings are exempt from the rule that a property owner is liable for a worker’s injuries no matter the level of the homeowner’s control over the work site. The court found that a dwelling is defined as a structure in which people reside or sleep, but not limited to a building or primary residence. Because the defendant claimed that he and his family would regularly sleep in the yacht, and because the yacht had all the features of a small home and was treated by the defendant as a second home for tax purposes, the court found the yacht to be a home and defendant exempt from this law. The court dismissed the case. (11/06)

Defendant, employee, worked as a manager for a residential building. During the course of an eviction, the building learned that its employee allowed a tenant to remain in his rent-stabilized despite his potential ineligibility, because the employee felt that the tenant had a legal right to do so. The building sued its employee for fraud and breach of her employment contract, among other things. When the tenant was later allowed by the court to stay in the rent-stabilized apartment, the employee sought the dismissal of the action against her claiming that because her conduct was correct, and the employer would have been compelled to allow the tenant to remain, she caused the employer no injury and could not be held accountable. The court disagreed and held that under the faithless servant doctrine, the employee’s disloyalty was relevant, and not the consequences of her disloyalty. Thus, because the employee committed a wrong, she may be liable to her employer.

In the course of attacking his companion, defendant destroyed a fish tank and stepped on a goldfish killing it. Defendant claimed that the goldfish was not a companion animal and was therefore not subject to the criminal statute forbidding cruelty to animals. The relevant statute defines a companion animal as a dog or cat and any other domesticated animal. Defendant claimed that a goldfish cannot be a companion because it is not domesticated nor able to reciprocate feelings to its owner. Defendant claimed further that a domesticated animal has no desire or inclination to escape. A goldfish, however, would swim away if dropped into a body of water. The court, in rejecting defendant’s claims, held that the statute did not require feelings of mutual affection and that domestication merely meant an animal living with humans and not a wild animal. Loyalty was not required; many pets would escape if given the opportunity.

There has been a major change to the publication requirement of the LLC, PLLC and LLP laws. Presently, an entity must publish the fact of its creation, date of filing and/or formation, county where the entity is located, purpose, and address for service of process in two weekly newspapers, once a week for six weeks. The penalty for failing to publish is the loss of the entity’s ability to sue. As of June 1, 2006, the content of the publication and the penalty for failing to publish change dramatically. As of June 1, these entities must also publish the names of the ten members of the entity who are actively engaged in the business and hold the most valuable interest (all of the members’ names must be published where there are less than 10 members). The frequency of the publication is also changed, from six weeks in a weekly newspaper, to four weeks, but in one weekly and in one daily. Although unclear, the size of the notice of publication may be larger than is presently required. The penalty for failing to publish is the suspension of the entity’s right to carry on its business. In addition to being unable to carry on its business, this provision creates a significant concern that once the entity is suspended—which is automatic after 120 days from the date of entity’s formation—the members of the entity will continue to operate as a business but without the liability protection offered by the entity. Even if the suspension is cured, and publication is made, it is unclear whether the members/partners of the entity retained their liability protection for the period of the suspension. Mistakes or inadvertent omissions of a member or partner’s name will not void the publication. Certain investment companies/funds are exempt from the “10 person” portion of the disclosure. These new publication requirements also apply to entities formed before June 1, 2006, but entities formed before January 1, 1999 are deemed to be in compliance. Entities formed between January 1, 1999 and May 31, 2006, have 18 months to publish or face suspension. It appears that retroactive protection is retained for these entities, so long as publication under this new law is timely made (18 months from June 1, 2006). I have read that there is a competing bill, not yet signed into law, which will, among other things, shorten this cure period from 18 months to 120 days and change the publication period back to six weeks. This bill also states that absent publication, the members/partners are personally liable for the debts and obligations incurred by the entity after June 1, 2006.