New York Zoning And Municipal Law Blog

The New York Court of Appeals held that the Freedom of Information Law carries the presumption of access to records. In reversing the holding of the Appellate Division and remitting the matter for a factual determination, the Court held in Matter of Data Tree, LLC v. Romaine that the Suffolk County Clerk, which claimed the requested documents were exempt from disclosure, “carries the burden of demonstrating that the exemption applies to the FOIL request.”

Data Tree is in the business of providing property records electronically and had requested that the County Clerk supply copies of various public land records from 1983 to the present, in an electronic format. When the Clerk failed to respond within five days, Data Tree treated this as a de facto denial and made an administrative appeal. The County Attorney denied the appeal citing three grounds (1) the request would require rewriting data which the Clerk is not required to do, (2) there would be an unwarranted invasion of personal privacy due to the volume and commercial nature of the request and (3) the records are otherwise available for copying individually in the Clerk’s Office. The determination was upheld by the Supreme Court and the Appellate Division.

The Court held that unless a specific exemption applies the records must be made available. After noting that the exemptions must be “narrowly interpreted” the Court agreed that the Appellate Division had engaged in improper burden shifting. It found that the burden is on the Clerk to prove an exemption applies not upon the applicant to prove an exemption does not apply.

In a case of first impression, the New York Court of Appeals ruled today that an open space restriction which appears solely on a subdivision map but is not otherwise recorded in land records is binding upon subsequent purchasers of the property. In O’Mara v. Town of Wappinger the Second Circuit Court of Appeals had certified the following question to the New York Court of Appeals: “Is an open space restriction imposed by a subdivision plat under New York Law §276 enforceable against a subsequent purchaser, and under what circumstances?”

The New York Court of Appeals held that such an open space restriction “when filed in the Office of the County Clerk pursuant to Real Property Law §334, is enforceable against a subsequent purchaser.” The property in question had been subdivided in 1963 and the plat had a notation indicating there was an open space restriction. It was then purchased by the Plaintiffs in 2000 at a tax sale. At the time of acquiring title, a title insurance policy was issued which did not disclose the open space restriction, which was only on the plat and not part of a separately recorded instrument. A survey was performed after purchase in order to obtain approvals for construction. Although the surveyor apparently observed the open space notation on the original subdivision plat he did not note it on the survey. Permits were issued and construction nearly completed on a house when the new building inspector discovered the open space notation and stopped work.

The Plaintiffs unsuccessfully brought a number of claims in federal court which resulted in certification of the question to the Court of Appeals. Their position was that the reservation of open space to the benefit of the Town was effectively a conveyance of an interest in real property which required recording in the County Clerk’s Office under Real Property Law §291, in the same manner as a deed. Plaintiffs argued that absent such a recording they were not, as subsequent purchasers, placed on notice and should not be bound by the restriction.