Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 24, 2013 mailing of "Constructive Notice":

Drafting Mistake

Leads to Disciplinary Action

A dispute over the ownership of a municipal street has resulted in a disciplinary sanction against an attorney for a deed drafting error. Matter of Hulme, 2013 NY Slip Op 00090 (2nd Dept. January 9, 2013, per curiam).

In the underlying action, East End Concrete & Stone Products, Inc., d/b/a East End Ready Mix v. Carnevale, #3231-2007 (Sup. Ct., Suffolk County), Carnevale claimed title to a local street in the Village of Westhampton Beach. The Village had been granted title to the street in 1931 by an unrecorded deed of which Carnevale and her attorney (who also served as trial counsel) had prior knowledge. Despite that prior knowledge, the attorney had prepared and recorded a deed that included the street bed from Carnevale to her wholly-owned corporation. The evidence adduced at trial indicated that the Village’s title was superior to the Carnevale claim. Following the close of testimony, the Court, sua sponte, relieved the attorney of his representation of Carnevale and her corporate entity.  Finding that the attorney "[misrepresented] the description of the premises” by preparing and recording the deed, the Court also referred three allegations of misconduct to the Grievance Committee for the Tenth Judicial Department for investigation. The Grievance Committee Special Referee sustained the misconduct charges and the Second Department panel confirmed the referee’s report. The attorney was “censured for his professional misconduct.”


In mitigation of the charges, the panel noted the attorney’s assertion that the misconduct “occurred due to a mistake as to the applicable law.” In addition, his previously unblemished record, his remorse over the incident, admission of error, acceptance of responsibility and the “absence of actual harm” all weighed in favor of censure, rather than more severe punishment. But the expense and anxiety of the disciplinary proceeding, along with the reputational damage of the sanction, might have been avoided with careful drafting. Full disclosure: Lance Pomerantz testified at the trial as the land title expert for the Village of Westhampton Beach.