County of Suffolk v Givens

[*1] County of Suffolk v Givens 2013 NY Slip Op 51562(U) Decided on September 16, 2013 Supreme Court, Suffolk County Whelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 16, 2013
Supreme Court, Suffolk County

County of Suffolk, Plaintiff,

against

Jamell Givens, HUDSON CITY SAVINGS BANK, ET ALS, Defendants.



13978-09



DENNIS M. BROWN, ESQ.

Suffolk County Attorney

By: PATRICIA A. ROUSE

Assist. County Atty.

PO Box 6100

Hauppauge, NY 11788

TWOMEY LATHAM, et al.,Attys. For Defendant Givens

33 West Second Street

Riverhead, NY 11901

Thomas F. Whelan, J.

Upon the following papers numbered 1 to11read on this motionby defendant Givens for various relief and cross motion by the plaintiff for summary judgment on its complaint; Notice of Motion/Order to Show Cause and supporting papers 1 - 4 ; Notice of Cross Motion and supporting papers5-7; Answering Affidavits and supporting papers; Reply papers8-9; 10-11; Other; (and after hearing counsel in support of and in opposition to the motion) it is

ORDERED that this motion (#006) by defendant, Jamell Givens for, among other things, partial summary judgment on his Sixth affirmative defense for, in effect, a judicial declaration that the plaintiff has neither a reverter interest in, nor title to, the premises at issue in this action together with an amendment of his first amended answer to include six new counterclaims for damages, is considered under CPLR 2512, 3212 and 3025 and is granted only to the limited extent set forth below; and it is further

ORDERED that the cross motion (#007) by the plaintiff, County of Suffolk, for summary judgment dismissing the affirmative defenses and counterclaims of defendant, Jamall Givens, and for an award of that same relief in favor of the plaintiff on its complaint is granted to the extent set forth below; and it is further

ORDERED that a hearing of the type contemplated by CPLR 6312(b) and 2512 regarding the amount of damages, if any, incurred by defendant Givens due to the issuance of a preliminary injunction is hereby scheduled for October 10, 2013, at 9:30 a.m. in the courtroom of the undersigned on the first floor of the Supreme Court Annex Building of the Courthouse located at 1 Court Street, Riverhead, New York.

In 2009, the plaintiff commenced this action pursuant to RPAPL Article 15 for a declaration of its clear title to a parcel of real property situated in Ocean Beach on Fire Island, New York. Underlying this demand for relief is the 2004 public auction of residential premises by the plaintiff, County of Suffolk [hereinafter "County"], that were subsequently conveyed to one, Jerrold Phifer, for $700,00.00 on March 21, 2005. The terms of such sale included a deed restriction imposing a reverter in favor of the County which was mandated by the adoption of Local Law #13-1990 and thereafter included in the Suffolk County Administrative Code at §A16-2(F) (see pages 10-11 of the Affirmation of defense counsel Kelley in support of the defendant's motion and Exhibit D of the cross moving papers of the County and Exhibit E of the cross moving papers of the County).

Local Law #13-1990 was adopted by the Suffolk County Legislature in February of 1990 in a resolution numbered 376-1990 and was therein denominated as a "Local Law to Mitigate Welfare Placement by Restricting Auction of County-Owned Real Property to Owner/Occupants" (see Exhibit E attached to cross moving papers of the County). Under the terms thereof, the purchasers or the natural children or the natural parents of the purchasers of all publicly auctioned parcels of residential property having structures capable of physical occupancy were required to occupy same [*2]for a period of five years from the transfer of title. Any breach of this condition resulted in an automatic reverter of the premises to the County, by operation of law (see Exhibit E of the cross moving papers of the County). Under the provisions of §A16-2(F) of the Administrative Code, the terms "natural" parents and "natural" children were expanded to include step and adoptive children and parents, while the term "occupancy" was defined as "to take, hold possession of and reside in as an owner, for activities pursued at home on a family or personal basis" (see pages 26-27 of Exhibit D of the cross moving papers of the County and the deed attached thereto as Exhibit A). Express exemptions from the reach of the law were included in the Administrative Code for commercial parcels, residential parcels having more than three units and properties on which an accessory use is residential (id). In accordance with these enactments, the deed issued in March of 2005 by the County in favor of Jerrold Phifer contained the following restriction: "FURTHER PROVIDED, that this parcel shall be occupied by the Grantee [Phifer] or Grantee's natural children or Grantee's natural parents for a period of five years from the date of conveyance herein. In the event that it is not so occupied, this parcel shall revert to grantor by operation of law" (see Exhibit A attached to the Affirmation of defense counsel Kelley in support of the defendant's motion).

In its complaint, the County alleged that its title reverted when Phifer breached the occupancy condition set forth in the deed by failing to occupy the premises or when he arranged with his mortgagee a short sale of the premises for the sum $450,000.00 on January 8, 2009. That short sale effected a resolution of a foreclosure proceeding brought by Phifer's mortgagee in 2006. The purchaser of the premises was a corporation owned solely by defendant Givens known as Globalized, Inc. [hereinafter Globalized]. The $450,000.00 purchase price was principally financed by a mortgage given by Globalized to defendant Katz, a private lender. Defendant Givens' lawyer in the transaction was one, Ethan Ellner, Esq., an attorney regularly engaged in real estate transactions in Suffolk County and real estate work for the County until 2009, when he pled guilty to grand larceny charges in connection with his participation in an $82 million dollar mortgage fraud scheme led by others. Although a copy of the deed from Phifer to Globalized is not included in the record adduced on these motions, the facts surrounding this transaction and the others outlined below are not in dispute as they were advanced by defendant Givens in an affidavit submitted on prior motion practice.

One day after it took title from Phifer, Globalized conveyed the premises to one, Carina Valet, for $500,000.00 under a deed dated January 9, 2009. As in the case of the Phifer/Globalized deed, a copy of the deed from Globalized to Valet is not a part of the record on these motions. On January 16, 2009, Valet sold the premises to defendant Givens for some $890,000.00. This purchase was financed in large part ($667,500.00) by a mortgage funded by co-defendant, Hudson City Savings Bank. The mortgage provided funds sufficient to pay off the Katz mortgage given by Globalized, Inc. and other expenses. The deed from Valet to Givens, a copy of which has been included in the record, does not include the occupancy condition and reverter clause in favor of the County that was contained in the County's deed to Phifer (see Exhibit B of the moving papers of defendant Givens). The conveyances by Phifer to Globalized and by Globalized to Valet, rather than to a direct conveyance to Givens directly from Phifer, were purportedly recommended by Given's attorney Ellner for "estate tax planning purposes and other reasons" (see ¶ 7 of the Affidavit of [*3]defendant Givens offered in opposition to motion sequence #001 attached as Exhibit D of his moving papers on this motion).

Defendant Givens claims to have had no knowledge of the occupancy condition and/or the reverter in favor of the County until the commencement of this action notwithstanding that he was the sole principal of Globalized, the short sale purchaser from the County's transferee, Phifer. Givens' current counsel attributes this alleged lack of knowledge on the part of his client to the fact that neither the occupancy condition nor the reverter in favor of the County was included in the deed from Valet nor "the title report ordered by his attorney, Ethan Ellner" (see ¶ 7 of the affirmation of defense counsel Kelley attached to defendant Givens' moving papers). Following his purchase, Givens made improvements to the property so as to enhance the purpose for which he allegedly purchased it, namely, to rent it out as a beach house to those desirous a enjoying a get-away on a barrier beach fronting the Atlantic Ocean.

Defendant Givens claims that he rented the premises to a Manhattan accountant for the 2009 summer season and that he had a signed second lease for the 2010 season with that same individual, notwithstanding that this action had been commenced by the County in April of 2009. However, this second season rental was allegedly undone by a preliminary injunction granted by this court to the County in an order dated June 23, 2010. That preliminary injunction was, however, lifted by an order of the Appellate Division dated May 22, 2013 (see County of Suffolk v Givens, 106 AD3d 943, 967 NYS2d 387 [2d Dept 2013]). Evidence in the record indicates that the premises were advertised and rented out as a "share house" during the summer season, whereby multiple individuals and/or groups of individuals occupied the premises under separate arrangements with Givens or his lessee.

By the instant motion (#006), defendant Givens demands a lifting of the preliminary injunction previously granted to the County, an immediate hearing on the issue of his damages, or in the alternative, an order increasing the County's liability under CPLR 2512(b) that was set by order of this Court dated July 29, 2011 upon the stipulated consent of counsel. In addition, defendant Givens seeks summary judgment dismissing the plaintiff's complaint and an order granting him leave to amend his answer to assert new counterclaims for damages against the County on "taking" grounds. The County opposes all relief demanded by defendant Givens and cross moves for summary judgment on its complaint. All other named parties, including defendant, Hudson City Savings Bank, failed to participate in these motions.

Those portions of the instant motion by defendant Givens wherein he seeks a lifting of the preliminary injunction previously issued by this court is denied as they were rendered academic under the terms of the May 22, 2013 order of the Appellate Division cited above. Also denied is the demand for an increase in the $25,000.00 maxim measure of the damages the County might incur by reason of the issuance of the preliminary injunction that was the subject of Givens' successful appeal, as said amount was the result of a "so-ordered" stipulation of counsel entered into on July 29, 2011 (see Order dated July 29, 2011).

In contrast, defendant Givens' demands for a hearing on the issue of the damages he may [*4]have sustained within the contemplation of CPLR 6312 and 2512(b) is granted. Contrary to the contentions of the County, the circumstances of this case do not warrant a deferral of any such hearing until such time as the merits of the claims have been finally adjudicated (see Margolies v Encounter, Inc., 42 NY2d 475, 398 NYS2d 877 [1977]; cf., Margolies v Encounter, Inc., 42 NY2d 475, 509 NYS2d 520 [1986]). The hearing shall thus be held as scheduled above.

Granted without opposition are those portions of defendant Givens' motion wherein he seeks leave to amend his first amended answer so as to include several new counterclaims for damages (see ¶ 53 of the Affirmation of Assistant County Attorney Rouse attached to the County's cross moving papers). The proposed answer containing such counterclaims shall be deemed served twenty (20) days after the date of this order. The time within which the County must answer or move against such claims under CPLR 3211 is hereby fixed at thirty (30) days from the date of service. Alternatively, the County may move for judgment under CPLR 3212 with respect thereto following the joinder of issue thereon by the service of its reply to such counterclaims.

Left for determination are the competing demands for summary judgment that are advanced in the moving and cross moving papers before the court. Underlying defendant Givens' demands for such relief are claims that the plaintiff is not entitled to a judicial declaration of its title to the premises by virtue of the automatic reverter set forth in the deed pursuant to RPAPL § 1953(4) because that statute is not applicable. Instead, the provisions of RPAPL §§ 1953(2) and (3) are alleged to control. The relevant provisions of that statute are as follows:

§ 1953. Effect of certain special limitations and conditions subsequent:

1. Except as provided in subdivision 4, a special limitation or condition subsequent created on or after September 1, 1958 shall be governed by this section in any case where it expressly or by necessary result restricts the use of land, but if such special limitation or condition subsequent also creates the possibility of reverter or right of reacquisition upon an event other than breach of such restriction, it shall be governed by this section to the extent only that the right of entry or possibility of reverter is conditioned on the use of the land.

2. No right of entry shall accrue by reason of breach of such condition subsequent, but upon the happening of such a breach those who are entitled to enforce the limitation or restriction...may maintain an action in the supreme court to compel a conveyance to him or them of the land, or interest therein, which is subject to the special limitation or condition subsequent.

3. The relief provided in subdivision 2 shall be granted only to protect a substantial interest in enforcement of the restriction, established by the person or persons in whose favor the relief is granted.... If it appears that the relief provided in subdivision 2 would be inequitable, the court may, in lieu thereof, restrain the repetition or continuation of a breach of the restriction, or it may grant the relief provided in subdivision 2 upon such terms as justice may require to avoid a forfeiture of the value of improvements or other unjust enrichment.

4. This section shall not apply where the special limitation or condition subsequent was created in [*5]a conveyance or devise, whether or not in trust, for benevolent, charitable, educational, public or religious purposes and restricts the use of land to such a purpose or to a particular application for means of carrying out such purpose, or was created by a lease for a term of years of less than one hundred years and restricts use of the leased premises.

Defendant Givens asserts that since the plaintiff has made no showing of any substantial interest in the enforcement of the deed's occupancy requirements, an award of summary judgment on his Sixth affirmative defense, wherein a lack of entitlement to the relief demanded by the plaintiff is asserted, is warranted together with a dismissal of its complaint with or without prejudice to the County's commencement of a new action under RPAPL §1953(2) and (3).

Defendant Givens further contends that the benevolent, public/religious purpose exemption provided by RPAPL §1953(4) is not applicable because the conveyance was not made for any benevolent, charitable, educational, public or religious purpose and no public purpose is served by it (see ¶¶ 18 an 19 of defense counsel Kelley's affirmation in support of defendant's motion). In this regard, defendant Givens claims that the County's conveyance of the subject premises to Phifer may not be considered as one made for public or charitable purposes since it was made solely as a revenue raising device by which properties taken by the County for non-payment of tax liabilities are auctioned off to purchasers for profit. Moreover, Givens asserts that no public purpose is served by the owner/occupancy restrictions requirements imposed by Local Law #13-1990.

In support of these contentions, defendant Givens relies upon the affidavit of Richard Schaffer, the County Legislator who sponsored Local Law #13-1990 described above. In paragraphs 3 thereof, Mr. Schaffer admits that by express legislative mandate, implementation of Local Law #13-1990, called for the imposition of the five year occupancy requirement upon "all homes sold at County auction" (see ¶ 2 of the affidavit of Richard Schaffer attached to defendant's moving papers). Mr. Schaffer then avers that his intent in promoting and voting for the law "was solely to prevent investors from purchasing these houses for the placement of families on public assistance into otherwise developed middle class neighborhoods to preserve the cohesion of exiting neighborhoods, the predominance of single family ownership as well as property values" (see id. at ¶ 3). Mr. Schaffer next avers that "it was not the intent of the Legislature or of this law to prevent investors from buying homes from the County and using them as rentals for high-end vacation summer homes (see id. at ¶ 4). Since defendant Givens' use of the house for rent "as a share house or summer rental or group rental to Manhattan professionals" was not the target of Local Law #13-1990, the deed covenants and reverter should not be enforced (id).

Summing up, defense counsel asserts that "the policy behind the law and the covenant the County now seeks to enforce was to keep welfare recipients out of middle class neighborhoods" (see ¶ 36 of the Affirmation of defense counsel Kelley) and that the affidavit of Mr. Schaffer establishes that RPAPL §1953(4) does not apply because "there was no public purpose and no restriction of use to such public purpose" (see ¶ 29 of the Affirmation of defense counsel Kelley in support of the defendant's motion).

Also inapplicable, according to defendant Givens, is the RPPAL §1955(5) statutory [*6]exemption from judicial diminishment of special limitations or conditions subsequent imposed in conveyances by, or agreements with, the United States, New York State, or any units, subdivision or agency thereof that is otherwise permitted by RPAPL §1955 [FN1]. As in the case of the exemption afforded under RPAPL §1953(4), the exemption afforded under RPAPL §1955(5) is alleged to control only where "a clear public or charitable purpose conveyance together with a related use restriction makes the law applicable" (see ¶ 21 of the Affirmation of defense counsel Kelley in support of the defendant's motion). Since there was no public, charitable, educational or religious purpose in the County's conveyance to Phifer that was reinforced by the occupancy restriction imposed by the terms of the County's conveyance of the subject premises, the exemption set forth in §1955(5) for conveyances creating restrictions for public, charitable or other qualifying purposes by a subdivision of the state of New York, such as the County, is inapplicable (see ¶ 27 of the Affirmation of defense counsel Kelley in support of the defendant's motion). For these reasons and those advanced above, defendant Givens claims an entitlement to an award of summary judgment dismissing the plaintiff's complaint.

In its cross submissions to the court, the County relies not upon the exemption against the diminution in conditions subsequent imposed in conveyances by state subdivisions set forth in RPAPL §1955(5), but instead, upon the exemption against diminishment in the enforceability of the deed occupancy limitations and conditions that is afforded by RPAPL §1953(4). The County rejects defendant Givens' claim that under both RPAPL §1953, it is the conveyance that must be public purposed. Instead, the County asserts that it is the purpose of the deed limitation or condition subsequent, not the conveyance, which governs the applicability of RPAPL §1953(4) (see ¶ 37 Affirmation of Assistant County Attorney Rouse attached to plaintiff's cross moving papers). The County further asserts the public purpose underlying the enactment of Local Law #13-1990 is set forth in the Resolution adopting it (#376-1990 attached as Exhibit E to the County's cross moving papers) and that such intent is binding upon all transferees under conveyances containing the deed restriction. The Legislative intent provisions of Resolution #376-1990 read as follows:

[*7]Section 1. "Legislative Intent

This Legislature hereby finds and determines that many County-owned parcels auctioned by the County of Suffolk, with structures on same, often wind up in the hands of absentee owners or landlords who do not invest time, money, or improvements in the structure so purchased, thereby causing an adverse economic and social impact on the community so affected.

This Legislature also finds and determines that such structures often become havens for slumlords to deposit unacceptable concentrations of afflicted individuals who are unable to fend for themselves. This, in turn, leads to welfare placement in communities that then develop undeserved reputations ad [sic] undesirable places to live because they are viewed as welfare havens.

Therefore, the purpose of this law is to restrict the public auction of County-owned parcels that have structures affixed thereto to those individuals who agree to occupy such parcels for a minimum of five (5) years subsequent to purchase as a condition precedent to purchase so as to discourage welfare placement; to encourage the continuity and the development of middle-class neighborhoods; and to protect and promote the health, safety, and general welfare of the residents of the County of Suffolk.

In support of its demands for relief, the County emphasizes that except for the limited exceptions for commercial property, multiple units of more than three and accessory residential parcels, the law extends to all parcels of residential property having structures capable of physical occupancy that were sold at public auction (see Administrative Code § A16-2(F)(I), at page 25 of Exhibit D to the County's cross moving papers [Terms and Conditions of Sale]). The term occupancy was defined in subsection II of §A16-2(F) of the Administrative Code as: "to take, hold possession of and reside in as an owner, for activities pursued at home on a family or personal basis" (see pages 26-27 of Exhibit D of the cross moving papers of the County and the deed attached thereto as Exhibit A). Implementation of the purpose of Local Law was effected by its mandate that all County conveyances of such parcels include the condition that they be occupied by the purchaser or by qualified family members for a period of five years from the taking of title and that any breach of this condition would result in an automatic reverter of the premises to the County by operation of law (see id., and see ¶ 2 of the affidavit of Richard Schaffer attached to the defendant's moving papers; see also Resolution 376-1990 attached as Exhibit E of the cross moving papers of the County quoted above).

The County thus claims that as a matter of law, Local Law #13-1990 was enacted for the public purpose of promoting owner/occupancy of auctioned parcels capable of residential use so as to maintain the stability of middle class family, residential neighborhoods and to discourage occupancy by non-owners, especially transients such as welfare recipients, and to promote the health, safety and general welfare of the residents of the County of Suffolk. The County further claims that the failure of Phifer, the County's grantee under the terms of its March 21, 2005 deed of the subject premises, to occupy the subject premises for the five year period following the conveyance gave rise to a breach of the occupancy condition subsequent and the concomitant reverter arising therefrom [*8]in favor of the County. As a result, the County claims title to the premises clear and free of the interests of defendant Givens and the other named defendants, including mortgagor defendant Hudson City. The effective date of such title is alleged in the complaint to be March 21, 2005, the date of the County's conveyance to Phifer (see ¶¶ 9, 10 and 17 of the Complaint; compare, Wherefore Clause of the Complaint).

In his reply papers, defendant Givens' counsel frames the issue before the court as follows: "As to the defendant's request for partial summary judgment and for plaintiff's cross motion for summary judgment, the question to be addressed by the court is whether the original conveyance by the plaintiff qualified under RPAPL §1953(4)" (see ¶ 8 of the Reply Affirmation of defense counsel Kelley). Counsel concludes that defendant Givens must prevail since the transaction by the County was not one for a public purpose nor was the use of the property restricted to the public purpose for which the property was conveyed (such as the maintenance of a school on the premises or its use as a park) and because the plaintiff sues under the wrong statute (see id., @ ¶ 9). For the reasons stated below, the court rejects these contentions and denies defendant Givens' demands for summary judgment and grants the plaintiff's cross motion for summary judgment to the limited extent set forth below.

Reverter interests and rights of re-entry are deeply rooted in ancient common law doctrines governing the creation and effect of future interests in real property. The legislature entered the field in the 1850's with the enactment of R.S, pt.2 c.1, tit.2 in 1855 (L.1855 c.17) which was revised upon the enactment of RPL §30 et. seq., in 1896. Future interests in both real and personal property are now governed by EPTL Article 6 and the current versions of these ancient future interests are markedly different from their common law predecessors.

The possibility of reverter is now defined in §6-4.5 of EPTL as follows: "A possibility of reverter (f/k/a reverter) is the future estate left in the creator or in his successors in interest upon the simultaneous creation of an estate that will terminate automatically within a period of time defined by the occurrence of a specified event". The closely related right of reacquisition (a/k/a re-entry) is defined in EPTL §6-4.6 as "the future estate left in the creator or his successors upon the simultaneous creation of the estate on a condition subsequent" (see EPTL §6-4. 6). Both these future estates are now disfavored by the law because they gives rise to an automatic forfeiture of the interests of the transferee. Common law doctrines have thus been supplanted by statutory provisions aimed at ameliorating the harsh effects imposed upon transferees whose interests are burdened with restrictive limitations and conditions subsequent that create possible reverter and reacquisition rights in the grantor.

Under the subparagraphs 2 and 3 of RPAPL §1953 set forth above, the automatic nature of future estates resting upon reverter and reacquisition rights has been abrogated by the requirement that the grantor or other possessor of such future estate bring an action to compel a conveyance in his or her favor and upon a showing that a substantial interest would be served (see RPAPL §1953[2]). The court in such an action is vested with wide discretion in fashioning any just remedy under the provisions of RPAPL §1953(3). An exemption from this statutory abrogation of the [*9]automatic forfeitures arising upon a breach of limitations and/or conditions that give rise to reverters and/or rights of reacquisition is set forth in the RPAPL §1953(4). This exemption is, however, quite limited as it is applicable only in cases where the special limitation or condition subsequent was created in a conveyance or devise, whether or not in trust for benevolent, charitable, educational, public or religious purposes and it restricts the use of land to such a purpose or to a particular application for means of carrying out such purpose or was created by certain leases.

The condition subsequent set forth in the March 21, 2005 deed to Phifer is clear and unambiguous as it expressly provides "that this parcel shall be occupied by the Grantee [Phifer] or Grantee's natural children or Grantee's natural parents for a period of five years from the date of conveyance" and "in the event it is not so occupied, this parcel shall revert to grantor by operation of law". The posted Terms and Conditions of Sale under which the property was put up for bid included in ¶24 thereof was a clear statement that each of the parcels so put for bid were subject to a covenant requiring occupancy of the parcel sold by the bidder or his natural children or parent for a period of at least five years from the conveyance. Attached to such Terms and Conditions of Sale was a copy of §A16-2(F) of the Suffolk County Administrative Code which stated that all parcels approved for disposition which have structures affixed thereto capable of physical occupancy shall only be offered for sale to the highest bidder at public auction who is willing to agree, in writing, to a restrictive covenant in the deed requiring occupancy by the bidder, his natural children or parents for a period of at least five years from taking of title (see page 29 of the Terms and Conditions of Sale). The court thus finds that the occupancy restriction set forth in Phifer's deed imposed a limitation or condition subsequent within the meaning of RPAPL §6-4.5, which if breached, was intended to result in an automatic reverter of the premises in favor of the County.

Contrary to the contentions of defendant Givens, a public purpose was served by the imposition of the occupancy limitation in the deed to Phifer that was mandated by the provisions of Local Law #13-1990. It is well established that in determining legislative intent, the text of a provision is the clearest indicator of the enactors' intent, "and courts should construe unambiguous language to give effect to its plain meaning" (Matter of DaimlerChrysler Corp. v Spitzer, 7 NY3d 653, 660, 827 NYS2d 88 [2006]; see McKinney's Cons. Laws of NY, Book 1, Statutes §§ 91; 92; Yatauro v. Mangano, 17 NY3d 420, 426, 931 NYS2d 36 [2011]; Roberts v Tishman Speyer Props., L.P., 13 NY3d 270, 286, 890 NYS2d 388 [2009]). To ascertain legislative intent or purpose, inquiry may be made into "the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history" (Nostrom v A.W. Chesterton Co., 15 NY3d 502, 507, 914 NYS2d 725 [2010]; see McKinney's Cons. Laws of NY, Book 1, Statutes §111; Sedacca v Mangano, 18 NY3d 609, 942 NYS2d 30 [2012]).

Here, the purpose of Local Law #13-1990 was expressly described by the Legislature in the text of the resolution adopting it as a law "to restrict the public auction of County-owned parcels that have structures affixed thereto to those individuals who agree to occupy such parcels for a minimum of five (5) years subsequent to purchase as condition precedent to purchase so as to discourage welfare placement; to encourage the continuity and the development of middle class neighborhoods and to protect and promote the health, safety and general welfare of the residents of Suffolk County" (Text of Resolution #376-1990 attached as Exhibit E to County's moving papers). Implementation [*10]of the law's purpose was effected by the mandate of its text, and that of its corresponding Administrative Code provisions, that all County conveyances of such parcels include the condition that they be occupied by the purchaser or by qualified family members for a period of five years from the taking of title and that any breach of this condition would result in an automatic reverter of the premises to the County by operation of law (see id., and see ¶ 2 of the affidavit of Richard Schaffer attached to the defendant's moving papers; see also Resolution #376-1990 attached as Exhibit E of the cross moving papers of the County quoted above).

The record thus reflects that a right of reverter upon a limitation or condition subsequent was created in favor of the County in its March 21, 2005 conveyance to Phifer by the deed's inclusion of the above quoted language restricting the use of the premises for a public purpose, namely, "to protect and promote the health, safety and general welfare of the residents of Suffolk County" by "restricting the auction of County-owned property to owner/occupants" (see Resolution #376-1990 enacting Local Law #13-1990 attached as Exhibit E to the County's cross moving papers). The occupancy limitation in Phifer's deed constituted "a particular application for means of carrying out such [public] purpose" within the contemplation of RPAPL § 1953[4], as it implemented the legislative intent underlying the law. The effect thereof was to limit occupancy of auctioned residential parcels to purchaser/owner/occupants such as Phifer or those within one degree of consanguinity to such purchaser (natural children or parents as defined in the Administrative Code), for period of five years from the conveyance.

Defendant Givens' claim that the exemption afforded by RPAPL §1953(4) is inapplicable because the conveyance to Phifer was without a public purpose and/or the occupancy limitation didn't restrict the use of the land to a public purpose is unsupported by the record. Nothing in the legislative history before the court supports contention that certain investors, like Phifer and Givens, who acquire County auctioned parcels for purposes of using them as high-end vacation rentals rather than for purposes of collecting income from the housing of transients such as welfare recipients, are beyond the legislative intent and the purposes underlying the enactment of Local Law #13-1990 and the effects of its occupancy limitation like the one in the deed to Phifer. Indeed, the legislative intent of applying the occupancy limitation to all County auctioned parcels having structures capable of physical occupancy by individuals resonates loud and clear from a reading of the legislative enactments put before the court. Givens' claims that the reverter arising from a breach of the occupancy limitation in the County's conveyance to Phifer is beyond the reach of the exemption against judicial diminution set forth in RPAPL§1953(4) are thus rejected as unmeritorious.

Also rejected as unmeritorious is defendant Givens' attempt to equate the exemption afforded under RPAPL §1955(5) with the exemption afforded by RPAPL §1953(4) and his claim that the case authorities applicable to the former are equally applicable to the latter. RPAPL §1955 is entitled "Modification or extinguishment of certain restrictions on the use of land held for charitable purposes" and it allows a landowner whose premises are held for charitable, educational, public or religious purposes to bring a suit to modify or extinguish certain restrictions such as special limitations, conditions subsequent or other contingencies upon the land so held for such purposes and it provides an exemption therefrom for property conveyed by the State of New York any [*11]subdivision thereof (see RPAPL §1955[5]). The provisions of §1953 are markedly different in that there is no requirement that land burdened with like restrictions, limitations and/or conditions be held for public purposes or for any of the other benevolent purposes enumerated in RPAPL §1955. The fact that the condition in Phifer's deed did not expressly restrict his use of the subject premises to a park, an art center, a culinary institute, a place of worship or the like does not disqualify such condition from the reach of the public purpose exemption set forth in RPAPL §1953(4). As indicated above, the subject occupancy limitation constituted "a particular application for means of carrying out such [public] purpose" and as such falls within the exemption against modification or diminution of automatic reverters that is provided by RPAPL §1953(4).

That neither Phifer nor his natural children or parents fulfilled the five year occupancy requirement set forth in the deed is not disputed. A breach of the limitation or condition subsequent giving rise to the County's reverter thus occurred upon the failure of qualified Phifers to satisfy that occupancy requirement. The County's conveyance to Phifer thus created the future estate now known as a possibility of reverter in favor of the County that ripened upon Phifer's breach of the limitation or condition subsequent set forth in the deed of March 21, 2005.

Under these circumstances, the court finds that under the County's March 21, 2005 deed to Phifer, the County retained a future estate known as a possibility of reverter and that the exemption afforded by RPAPL §1953(4) is applicable thereby immunizing the County's reverter from judicial modification or diminution of the type contemplated by RPAPL §1953(2) and (3). The County's reverter was thus automatic upon a breach of the occupancy condition imposed in his deed (see New York City Economic Dev. Corp. v Corn Exch., LLC, 85 AD3d 545, 924 NYS2d 787 [1st Dept 2011]; DiPietro v County of Westchester, 237 AD3d 325, 658 NYS2d 318 [2d Dept 1997]). The court further finds that Phifer breached the occupancy requirements imposed in such deed by failing to occupy the subject premises for the required five year minimum term that commenced upon the County's conveyance of March 21, 2005.

Pursuant to CPLR 3212(g), the foregoing facts are hereby fixed and determined by this court for all purposes in this action. The court thus grants partial summary to the County to the extent that the court declares that the County is possessed of a valid and enforceable reverter in the subject premises that became automatic upon Phifer's breach of occupancy requirement during the five year term imposed in the deed and that such reverter is exempt under RPAPL §1953(4) from judicial modification and/or diminution within the contemplation of the other provisions of RPAPL §1953. The County is further awarded partial summary judgment dismissing all affirmative defenses asserted in the First Amended answer and in the Second Amended Answer attached to defendant Givens' moving papers that are premised upon the provisions of RPAPL §1953(1), (2) and/or (3), including his demands for recovery of the cost of parcel improvements under theories of unjust enrichment or otherwise and all of defendant Givens' counterclaims wherein affirmative relief pursuant to these statutory provisions are demanded.

No further awards in favor of the County on its complaint are made herein due to failures on the part of the County to adduce proof of the following facts: 1) the precise date on which the breach [*12]of the occupancy condition set forth in the deed occurred; 2) the date on which the County's reverter interest (a future estate when created in the March 21 2005 deed to Phifer) vested into a present possessory estate in the subject premises; and 3) due proof of the nature of the interests of the other defendants in the action and of the County's entitlement, if any, to an extinguishment of any of such interests as demanded by it in the Wherefore clause of its complaint. Awards of summary judgment, in favor of the County, except for those set forth above, are thus precluded by these unresolved factual issues and its demands for such further relief are denied. Such denial is, however, without prejudice to the interposition of a new motion under CPLR 3212, duly supported by all pleadings and other required papers, with respect to these unresolved matters and such others as may be deemed appropriate.

The County's cross motion (#007) is thus granted only to the following extent: 1) the court's fixation, pursuant to CPLR 3212(g), of the facts found herein regarding the County's retention of a future estate in the form of a possibility of reverter in its March 21, 2005 deed to Phifer and Phifer's breach of the condition giving rise to the County's automatic reverter which is exempt under RPAPL §1953(4) from judicial modification and/or diminution within the contemplation of the other provisions of RPAPL §1953; 2) the award of partial summary judgment in the form of the limited declaratory relief set forth regarding the County' possession of said reverter as set forth above; and 3) the further award of partial summary judgment dismissing the affirmative defenses and counterclaims of defendant Givens for relief under RPAPL §1953, including his demands for recovery of the cost of improvements he made to the premises under theories of unjust enrichment or otherwise.

Those portions of the motion-in-chief (#006) by defendant Givens wherein he seeks partial summary judgment on the Sixth affirmative defense set forth in his first Amended answer is denied. The remainder of defendant Givens' motion-in-chief is decided as set forth above.

DATED: __September 16, 2013_____________________________________________

THOMAS F. WHELAN, J.S.C. Footnotes

Footnote 1: §1955. Modification or extinguishment of certain restrictions on the use of land held for Charitable Purposes:

1. Where land is held, whether or not in trust, for benevolent, charitable, educational, public or religious purposes, and the use of such lands is restricted to such purpose, or to a particular application or means of carrying out such purpose by a special limitation or condition subsequent created in the conveyance or devise under which the land is so held, or by agreement to convey, reconvey or surrender the land or the estate so held upon a contingency relating to its use, an action may be brought in the supreme court to obtain relief from such restriction as provided in this section.

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5. This section shall apply to a special limitation or condition subsequent created or agreement made either before or after September 1, 1958, except that it shall not apply (a) where a right of entry or right to a conveyance, reconveyance or surrender of the property has accrued or a reverter has occurred prior to such date, or (b) where the conveyance creating the restriction was made by or the agreement creating the restriction was made with the United States, the state of New York or any governmental unit, subdivision or agency of the United States of the state of New York.