When you own property in which someone else also holds a cotenancy interest in, but you don’t know that they have an interest, can you take title to the property exclusively by adverse possession? The Court of Appeals recently addressed that strange question, holding that being unaware of the cotenancy does not prevent you from showing adversity for purposes of adverse possession. Let’s take a look at that opinion and what else has been happening in New York’s appellate courts over the past week.
Court of Appeals
Golobe v Mielnicki, 2025 NY Slip Op 01670 (Ct App Mar. 20, 2025)
Real Property Law, Adverse Possession
Issue: May a cotenant adversely possess property when neither cotenant is aware of the existence of the co-tenancy?
Facts: “Dorothy Golobe died in 1992. Her estate included a three-story building at 265 West 30th St, New York. Dorothy’s nephew, John Golobe, became the estate’s administrator. He informed Surrogate’s Court that his father, Dorothy’s brother Zangwill Golobe, was Dorothy’s only surviving heir. An attorney and friend who had known the family for decades testified that Dorothy’s other brother, Yale Golobe, had predeceased her by six or seven years. Surrogate’s Court found that Zangwill was Dorothy’s sole distributee, and Zangwill renounced his interest in favor of Mr. Golobe. Mr. Golobe has possessed and maintained the property ever since. . . . But there’s a twist: when Dorothy died, Yale was still alive. He therefore should have inherited a one-half interest in Dorothy’s estate, including the Premises. The parties agree that until 2018, Mr. Golobe did not know that Yale had survived Dorothy. After discovering the error, Mr. Golobe brought this action claiming that he had acquired sole ownership of the Premises through adverse possession. Yale’s successor—the Emil Kraus Revocable Trust—counterclaimed for fraud and breach of fiduciary duty based on Mr. Golobe’s conduct as administrator of Dorothy’s estate.” Supreme Court sided with Mr. Golobe, and the Appellate Division affirmed.
Holding: Deciding this issue of first impression in New York, the Court of Appeals held that “a cotenant may obtain full ownership of jointly owned property [through adverse possession] even when neither party is aware of the other cotenant’s interest.” The Court explained, “[t]o establish a claim of adverse possession, the occupation of the property must be (1) hostile and under a claim of right (i.e., a reasonable basis for the belief that the subject property belongs to a particular party), (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (at least 10 years). The parties agree that Mr. Golobe actually, exclusively and continuously occupied the Premises for over 20 years, beginning in October 1992. We must determine whether Mr. Golobe’s possession was hostile, under a claim of right, and open and notorious. It was all three.”
“Hostility is complicated in a co-tenancy because each cotenant has an equal right to possess and enjoy all or any portion of the property as if the sole owner. There is therefore a common-law presumption that a cotenant’s possession is possession by and for the benefit of all other cotenants.” Under RPAPL 541, however, after the first ten years of exclusive possession, a cotenant may begin to hold the property adversely to his cotenant. The Court explained, “a cotenant’s possession may be hostile even where neither tenant is aware of the existence of the co-tenancy. After RPAPL 541’s 10-year period ends, the presumption of nonadverse possession ceases and the hostility element applies in the same way to cotenants as it does to other adverse possessors. Outside the context of co-tenancy, we have held that mutual mistake does not defeat hostility . . . [W]e held that the adverse possessor’s claim was hostile to the true owner’s because a mutual mistake as to ownership does not negate the hostility element. Here, Mr. Golobe and the Trust were mutually mistaken as to the true ownership of the Premises. That does not negate Mr. Golobe’s hostile possession.”
“Next, Mr. Golobe’s possession was under a claim of right. Surrogate’s Court’s found that Mr. Golobe’s father was the sole distributee of Dorothy’s estate, entitling Mr. Golobe to full ownership of the Premises once his father disclaimed. In October 1992, Mr. Golobe became the record owner of the Premises by Administrator’s Deed. Mr. Golobe thus had a reasonable basis for believing that he owned the Premises.” And finally, “Mr. Golob’’s possession was open and notorious. The requirements for open and notorious possession depend on the character of the property. Possession is open and notorious if it is sufficiently visible such that a casual inspection by the owner of the property would reveal the adverse possessor’s occupation and use thereof. Here, casual inspection would have revealed, at the very least, that Mr. Golobe had conducted large-scale renovations of the property. His possession was therefore open and notorious.”
Burrows v 75-25 153rd St., LLC, 2025 NY Slip Op 01669 (Ct App Mar. 20, 2025)
Landlord-Tenant Law
Issue: When tenants allege that a landlord engaged in a fraudulent scheme that resulted in unlawfully inflated rents, must the tenants, to invoke the fraud exception, which permits a tenant to bring overcharge claims arising from a landlord’s conduct outside the four-year statute of limitations and rental history “lookback” period, show reasonable reliance on the landlord’s alleged deceptive acts?
Facts: “Plaintiffs are tenants of a building in Queens that participates in the Real Property Tax Law § 421-a program, which grants tax benefits to owners in exchange for making all units in the building subject to the rent stabilization laws and imposes additional regulatory requirements on owners. In 2020, plaintiffs commenced this rent overcharge putative class action against defendant, alleging a fraudulent scheme pursuant to which the building’s previous owner registered a preferential rent as well as a higher legal regulated rent as the units’ initial legal regulated rent, and by doing so was able to calculate increases far greater than legally permissible . . . This scheme, according to plaintiffs’ complaint, lasted for many years and affected hundreds of tenants. Furthermore, plaintiffs allege that defendant later sought to conceal this conduct by registering a legal regulated rent that matched the preferential rent, making the correct rent unknowable without discovery.” Defendant moved to dismiss, arguing that the complaint was barred by the 4-year statute of limitations “because the initial rent was registered in 2007, 13 years before the complaint was filed. Defendant argued that plaintiffs were not entitled to application of the fraud exception because they could not demonstrate reasonable reliance on the improper filing of the initial legally regulated rent and the preferential rent, as both numbers were shown in the units’ registration history and in plaintiffs’ leases. Supreme Court denied the motion, holding that plaintiff had alleged ‘sufficient indicia of fraud’ to invoke the fraud exception.” The Appellate Division, however, reversed, holding that “because neither plaintiffs nor any of their predecessors could have reasonably relied on the inflated legal regulated rent figures that appeared on the face of the registration statements and in each tenant’s lease and since plaintiffs’ claims are based upon inflated figures for legal regulated rents that were registered far more than four years before the commencement of this action in 2020, their claims are time-barred.”
Holding: The Court of Appeals held that “for the fraud exception to apply, a plaintiff need not demonstrate each element of common-law fraud, including reliance. To withstand a motion to dismiss, a complaint must instead . . . allege sufficient indicia of fraud.” The Court clarified that its prior precedent, particularly a footnote in Matter of Regina Metro. Co., LLC v New York State Div. of Hous. & Community Renewal (35 NY3d 332, 356 n 7 [2020]), was not intended to “to alter the showing required to invoke the fraud exception. Indeed, Regina reaffirms our traditional approach to the fraud exception, which does not include a requirement that tenants demonstrate reasonable reliance on owners’ allegedly fraudulent conduct (here, registration of the initial legally regulated rent) . . . A reliance requirement would be misplaced; the fraud exception serves a far different purpose than an allegation of common law fraud. The fraud exception, applicable only to an overcharge claim, simply allows for review of the rental history outside the four-year lookback period and then . . . solely to ascertain whether fraud occurred—not to furnish evidence for calculation of the base date rent or permit recovery for years of overcharges barred by the statute of limitations. The exception operates to protect not only current tenants, who may or may not have relied on a fraudulent representation, but future tenants and the overall rent regulatory system. . . . Given the narrow purpose and scope of the fraud exception, there is no basis for imposing the pleading requirements of a common law fraud claim. Instead, we require plaintiffs to put forth ‘sufficient indicia of fraud’ or a ‘colorable claim’ of a fraudulent scheme but do not impose a burden to establish each element of a common law fraud claim.”
Appellate Division, Second Department
Real Property Tax Law, Property Tax Exemption for Not-For-Profit Corporations
Issue: When is a covered not-for-profit corporation is entitled to a full tax exemption pursuant to RPTL 420-a for property allegedly utilized primarily in furtherance of exempt purposes?
Facts: “Harrison Orthodox Minyan, Inc. is a religious not-for-profit corporation which operates a modern Orthodox Jewish synagogue on Union Avenue in Harrison. For more than two decades, nonparty Efraim Marcus has served as the synagogue’s Torah reader, while also leading its prayer services. In or about 2014, a member of the congregation purchased a residential property on Ramapo Circle in Harrison, located within walking distance of the synagogue, and donated it to the petitioner. The petitioner then permitted Marcus to reside at the property with his family.” In 2015, the Minyan applied for a real property tax exemption under RPTL 420-a for the residential property. The Town Assessor denied the exemption, determining that the residential property was not being use for an exempt purpose. The Minyan appealed to the Board of Assessment Review, arguing that the property was used in furtherance of its religious purpose. The BAR, however, denied the grievance.
The Minyan thus commenced a RPTL Article 7 proceeding to challenge the denial of the RPTL 420-a exemption. In support of the Minyan’s eventual summary judgment motion, the Minyan explained that Marcus became the regular Torah reader for the synagogue in about 1999, while living outside of Harrison. Marcus eventually moved his family to Harrison and lived in an apartment about a mile away from the synagogue, but that proved too far after his third child was born in 2014. Marcus thus advised the Minyan that “it was implausible for him to continue to serve as the synagogue’s Torah reader while living so far away, citing the challenges created by his need to be present at the synagogue and his concurrent inability, based on his religious beliefs, to drive to the synagogue on the Sabbath and Jewish holidays. After learning that Marcus required housing within walking distance of the synagogue in order to remain on as Torah reader, one of the members of the congregation purchased the property, located .2 miles from the synagogue, and donated it to the [Minyan]. Beyond its use as a residence for Marcus and his family, the affirmations and affidavits submitted by the [Minyan] established that the property was also utilized to tutor members of the congregation and to hold various religious events.” The Minyan thus argued that “that the property was exempt, even though it was Marcus’’s residence, because it was nonetheless used primarily in furtherance of the [Minyan’s] religious purposes. According to the [Minyan], Marcus’s use of the property as his residence served to ‘satisfy his indispensable function of reading from the Torah at worship services.’ The [Minyan] also asserted that the use of the property for other reasons, including to hold various events and for tutoring students, aided in establishing that it was used in furtherance of exempt purposes.”
Without submitting any affidavits based on personal knowledge of the Minyan’s religious practices, the Town argued that “taxpayers should not be required to pay the expense of the petitioner’s ‘choice’ to ‘accommodate’ Marcus’s desire to reside closer to the synagogue than his prior residence. Since the property was used primarily, if not exclusively, as Marcus’s residence, the respondents asserted that the property’s use could not be deemed primarily religious, as opposed to residential.” Supreme Court agreed, denied the Minyan’s motion for summary judgment, and granted the Town’s cross motion for summary judgment dismissing the Article 7 petition.
Holding: The Second Department reversed, and granted the Minyan the exemption for the residential property under RPTL 420-a. The Court explained, “this state has declared a policy that certain institutions, such as churches and schools, are more important than local taxes, and that it is in furtherance of the general welfare to exclude such institutions from taxation.” This mandate flows from the NY Constitution, which RPTL 420-a was adopted to implement. “Specifically, the statute provides a tax exemption for . . . real property owned by corporations organized or conducted exclusively for exempt purposes and used exclusively for carrying out such purposes. The term ‘exclusively,’ in the context of RPTL 420-a, is not to be read literally. Instead, the term has been broadly defined as principally or primarily, such that purposes and uses merely auxiliary or incidental to the main and exempt purpose and use will not defeat the exemption . . . Thus, there is a two-part test to determining entitlement to a property tax exemption: (1) whether the owner of the property is organized or conducted exclusively, or primarily, for an exempt purpose; and (2) whether the particular property for which the exemption is sought is itself primarily used for an exempt purpose.”
Clarifying the law in this area, the Court held that “New York has long recognized that residential property used for housing a covered institutions . . . staff may be entitled to a tax exemption under RPTL 420-a or similar statutes. Indeed, housing can qualify as an exempt use under RPTL 420-a where it is in furtherance of the property owner’s exempt purpose. The test . . . is whether residential property owned by a covered institution and occupied by its personnel and their immediate families is devoted to a use which is reasonably incidental to the major purpose of the institution.”
Here, the Court held, the Minyan “established that its religious purposes include . . . operating a synagogue, conducting Jewish worship thereat, and organizing Jewish people for various events, and that the property was utilized primarily in furtherance of those purposes.” “Marcus’s role as the synagogue’s Torah reader was full-time and similar to an assistant rabbi, even though he was not an ordained member of the clergy . . . Marcus played an active role in religious services occurring at the synagogue multiple times during the week, on the Sabbath, and on Jewish holy days, among other instances, and also spent time preparing for those services. He performed the rabbi’s duties when the rabbi was unavailable, while also tutoring congregants on Torah-related matters at the property. Beyond the use of the property for tutoring congregants, the petitioner established that it conducted other religious activities at the property on a regular basis.” The Minyan thus established its entitlement to the RPTL 420-a exemption for the residential property.
Appellate Division, Fourth Department
Criminal Law, Juvenile Delinquency
Issue: Is a private conversation between two students in which one threatens a mass shooting sufficient to demonstrate the requisite intent to find a juvenile guilty of making a terroristic threat?
Facts: Respondent, a juvenile, was “placed . . . in the custody of the Office of Children and Family Services for a period of 18 months based on the determination, after a fact-finding hearing, that respondent committed an act that, if committed by an adult, would constitute the crime of making a terroristic threat.”
Holding: The Fourth Department held that the evidence against the juvenile was insufficient to constitute a terroristic threat under Penal Law § 490.20(1). The Court explained, “a person is guilty of making a terroristic threat when ‘with intent to intimidate or coerce a civilian population, they threaten to commit or cause to be committed a specified offense and thereby cause a reasonable expectation or fear of the imminent commission of such offense’ (Penal Law § 490.20 [1]).” The Court held that the evidence that the juvenile “sent private messages to another student in a different school district that respondent was planning to commit a mass shooting to end bullying in his school” was insufficient to demonstrate an intent to intimidate or coerce a civilian population, because no evidence existed that “those threats were made to anyone other than the student or that respondent requested that the student relay the threats to others. A private conversation between immature teenage friends, without more, does not establish the element of intent to intimidate a civilian population.”
New York Appeals 