Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the Oct. 23, 2014 mailing of "Constructive Notice":

Title Policy Leaps GIant Wall

The insured parcel adjoined a public street. For many years, the City had maintained a 1½-foot-thick stone retaining wall along the length of the street boundary. Due to the steep slope of the parcel, the wall was eight feet above grade at its shortest point and 34 feet above grade at its tallest. Vehicular access was impossible and pedestrian access would require a ladder.

Despite obtaining construction permits that allowed partial demolition of the wall, the insured owner commenced litigation against the title insurer. The insured alleged a policy breach for failing to disclose that the wall blocked access from the public street.

The Appellate Division upheld a grant of summary judgment in favor of the insurer. The panel expressly held the policy provision insuring against a ‘lack of a right of access to and from the land’ only protects against the absence of a legal right of access and “does not cover claims concerning lack of an existing means of physical access.” 43 Park Owners Group, LLC, et al. v. Commonwealth Land Title Insurance Company, et al. 2014 NY Slip Op 07120 (Second Dept., Oct. 22, 2014).

(Kudos to Constructive Notice subscribers Stuart Siris, Esq. and Michael Siris, Esq. of Solomon & Siris, P.C. on their impressive win.)


This holding puts New York in line with the majority rule on this issue. Unusual for a New York insurance case, the Court cited support from Florida, New Mexico and California, in addition to New York case law. In fact, the critical language quoted above is taken from an unpublished California Court of Appeal case. Although a California Rule of Court directs an unpublished opinion “not be cited or relied on by a court or a party in any other action,” the New York court found it authoritative enough to ignore the restriction.