Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the December 12, 2014 mailing of "Constructive Notice":

Actual Notice & Contempt

The Third Department has clarified when failure to abide by a court ordered stipulation is not punishable with contempt. Matter of Bemis v. Town Of Crown Point, 2014 NY Slip Op 7393 (Third Dept., Oct. 30, 2014).

In 1996, Bemis commenced litigation, seeking access over Narrowtown Road, which traversed the Cummings parcel. In 1997, the Town passed a resolution declaring Narrowtown Road a town road. In 1999, Bemis sued the Town to require it map and maintain Narrowtown Road as a town highway. The proceeding was settled by a so-ordered stipulation whereby the Town agreed to Bemiss demands. Cummings was not a party to the Town litigation or the stipulation, although he was aware of them.

Cummings subsequently interfered with the Towns efforts to comply with the stipulation and Bemis sought to have both Cummings and the Town held in contempt. The Court found Cummings cannot be held in contempt of the 1999 stipulation because he was not a party to it and was not otherwise bound by it. Likewise, the Town could not be held in contempt given that the main issues of this dispute have remained unresolved i.e., the ownership and status of Narrowtown Road and [the Town] may or may not have a legal right to enter and maintain the road.


Property owners frequently try to use local municipal authority to justify their position in a land title dispute. Such attempts will usually rely on taxing, highway, zoning, building, safety or environmental police power. They typically fail at the local stage, because municipalities are reluctant to take action in the face of a purely private dispute. In cases where the municipality does act, it is very difficult to prove the unequivocal mandate" needed to support a contempt citation.