Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the May 15, 2012 mailing of "Constructive Notice":

Second Dept. Departs from Witter?

In an apparent departure from the Court of Appeals rule in Witter v. Taggart, 78 NY2d 234 (1991), the Appellate Division has held that a recorded instrument appearing solely in the chain of title of the dominant estate provides constructive notice to a subsequent purchaser of the servient parcel. Djoganopoulos v Polkes, 2012 NY Slip Op 03591 (2nd Dept., May 8, 2012).

Plaintiffs sought to utilize a previously-granted easement over the defendants’ parcel. The parcels at issue are located in Suffolk County, which uses a “grantor-grantee” indexing system. Because the Appellate Division opinion is rather short on facts, we have gleaned from the Supreme Court decision that the easement itself was created in a 1967 deed from the then-common owner to a predecessor in Plaintiffs’ chain of title. There is nothing in either the Supreme Court or Appellate Division reports to indicate that the easement appeared “in deeds or other instruments of conveyance in [the servient parcel’s] direct chain of title” as required by Witter. There is also nothing to indicate that there were indicia of use or other factors giving rise to inquiry notice. Yet the Court found that the defendants “had notice of the easement at the time they took title.”


The cases relied upon by the Appellate Division to bolster its opinion seem inapposite based on the facts presented. For instance, the Court finds that the defendants “had notice of the easement at the time they took title” and cites Webster v. Ragona, 7 AD3d 850 (3rd Dept., 2004). But Webster involved actual or inquiry notice based on long-time use and off-record communications between the parties.  In connection with constructive notice of recorded instruments, the Court cites Farrell v. Sitaras, 22 AD3d 518 (2nd Dept., 2005), a case involving a tract index recording system that is outside of the Witter rule. Most surprisingly, the Court states that “[t]he recording of a deed creating a right of way over a grantor's remaining land constitutes constructive notice to a purchaser who later takes title to the servient parcel from the same grantor (see Long Bldg., Inc. v. Brookmill Corp., 276 App Div 1087).” Long Bldg., Inc. is an obscure 1950 Second Department case that relies completely on the same department’s earlier opinion in Ammirati v. Wire Forms (273 AD 1010, aff’d only as to result 298 N.Y. 697). But this interpretation of Ammirati was explicitly rejected in the Witter opinion. It’s too soon to know if Djoganopoulos will be further appealed, but Constructive Notice will monitor any future developments.