Webster v. Ragona, 503813.

CourtNew York Supreme Court Appellate Division
Writing for the CourtSpain
Citation2008 NY Slip Op 04036,51 A.D.3d 1128,857 N.Y.S.2d 780
PartiesGERARD WEBSTER et al., Respondents-Appellants, v. GIACINTO M. RAGONA et al., Defendants, and WALTER A. PEETERS, Appellant-Respondent.
Decision Date01 May 2008
Docket Number503813.
51 A.D.3d 1128
857 N.Y.S.2d 780
2008 NY Slip Op 04036
GERARD WEBSTER et al., Respondents-Appellants,
v.
GIACINTO M. RAGONA et al., Defendants, and
WALTER A. PEETERS, Appellant-Respondent.
503813.
Appellate Division of the Supreme Court of the State of New York, Third Department.
Decided May 1, 2008.

Cross appeals from an order of the Supreme Court (Dowd, J.), entered April 5, 2007 in Otsego County, which awarded plaintiffs damages for the diminution in value of their property plus counsel fees.

SPAIN, J.


This action to quiet title has twice been before this Court, resulting in determinations that defendants Giacinto M. Ragona and Antoinette M. Ragona enjoyed an easement over the lands of adjacent landowners, plaintiffs (7 AD3d 850 [2004]), and that plaintiffs were entitled to recover damages and counsel fees resulting from the breach of the warranties and covenants in the deed given them by the former owner of the encumbered

51 A.D.3d 1129

property, defendant Walter Peeters (hereinafter defendant) (40 AD3d 1360 [2007], lv dismissed 9 NY3d 900 [2007]). Following an inquest, Supreme Court awarded plaintiffs $7,000 in damages for the diminution in value of their property and $32,500 in counsel fees. Defendant appeals and plaintiffs cross-appeal, and we now affirm.

The propriety of the amount of damages and counsel fees awarded by Supreme Court is the sole issue before us in this latest appeal. We turn first to defendant's challenge to the $7,000 awarded to plaintiffs in damages. Prior to the inquest, as a condition of a settlement between the Ragonas and plaintiffs, the Ragonas surrendered their right to the easement over plaintiffs' property. In exchange, plaintiffs ceded a strip of land along their common boundary line to the Ragonas. The Ragonas then sold their parcel—the former dominant estate—to Haney Wellness, LLC. As a further condition of the settlement agreement, plaintiffs granted Haney a license to use, for ingress and egress, the same driveway over which the easement previously had existed for as long as Haney remains the sole fee owner of 32 Main Street, the former Ragona parcel.

Ordinarily, "damages for a breach of covenant against encumbrances or a breach of a warranty of title are measured by subtracting the value of the property after the defect is discovered from its value before the defect existed" (Yonkers City Post No. 1666, Veterans of Foreign Wars of U. S. v Josanth Realty Corp., 67 NY2d 1029, 1031 [1986]). However, at the inquest, no testimony or appraisals were offered with respect to the fair market value of plaintiffs' property before the easement existed, nor its fair market value after discovery of the easement. Instead, having already taken steps to eliminate the easement, plaintiffs measured their damages based on the costs incurred in that endeavor—specifically, the value of the land ceded to the Ragonas in exchange for their relinquishment of the easement. Gerard Webster testified that the strip of land surrendered by plaintiffs to the Ragonas measured 4.6 feet by 197.1 feet, or 908.6 square feet, and comprised roughly 2.8% of plaintiffs' 31,567-square-foot parcel. He further testified that he purchased the property for approximately $250,000 in 1995 and, as such, he was entitled to 2.8% of $250,000, or...

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8 practice notes
  • Town of Verona v. Cuomo, No. 4624–13.
    • United States
    • United States State Supreme Court (New York)
    • June 27, 2014
    ...at 901, quoting Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 40 A.D.3d 1177, 1179 [2007], and citing Webster v. Ragona, 51 A.D.3d 1128, 1131–1132 [2008] and Beneke v. Town of Santa Clara, 45 A.D.3d 1164, 1165 [2007], lv denied 10 N.Y.3d 706 [2008] ). This principle, in the Cour......
  • Rensselaer Polytechnic Inst. v. Schubert, 526889
    • United States
    • New York Supreme Court Appellate Division
    • March 7, 2019
    ...from the encroaching driveway, defendants' remedy for such a breach would be a claim for money damages (see e.g. Webster v. Ragona, 51 A.D.3d 1128, 1129–1130, 857 N.Y.S.2d 780 [2008] ). Simply stated, any 95 N.Y.S.3d 457such breach of warranty that might possibly be found would not affect t......
  • Sharipova v. BNV Home Care Agency, Inc., 530614
    • United States
    • New York Supreme Court Appellate Division
    • February 4, 2021
    ...the Board's decision to the contrary is not supported by substantial evidence (see Matter of Marotta v. Town & Country Elec., Inc., 51 A.D.3d at 1128, 857 N.Y.S.2d 340 ; Matter of Camino v. Chappaqua Transp., 19 A.D.3d 856, 857, 796 N.Y.S.2d 736 [2005] ; Matter of Sullivan v. L'Heureux, 18 ......
  • John L. Bell, Individually And, Inc. v. White
    • United States
    • New York Supreme Court Appellate Division
    • December 12, 2013
    ...the law of the case, and, despite his protestations, we perceive no legitimate basis upon which to revisit them ( see Webster v. Ragona, 51 A.D.3d 1128, 1131–1132, 857 N.Y.S.2d 780 [2008]; Shawangunk Conservancy v. Fink, 305 A.D.2d 902, 903, 762 N.Y.S.2d 109 [2003] ). Turning to the fee awa......
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8 cases
  • Town of Verona v. Cuomo, No. 4624–13.
    • United States
    • United States State Supreme Court (New York)
    • June 27, 2014
    ...at 901, quoting Town of Massena v. Healthcare Underwriters Mut. Ins. Co., 40 A.D.3d 1177, 1179 [2007], and citing Webster v. Ragona, 51 A.D.3d 1128, 1131–1132 [2008] and Beneke v. Town of Santa Clara, 45 A.D.3d 1164, 1165 [2007], lv denied 10 N.Y.3d 706 [2008] ). This principle, in the Cour......
  • Rensselaer Polytechnic Inst. v. Schubert, 526889
    • United States
    • New York Supreme Court Appellate Division
    • March 7, 2019
    ...from the encroaching driveway, defendants' remedy for such a breach would be a claim for money damages (see e.g. Webster v. Ragona, 51 A.D.3d 1128, 1129–1130, 857 N.Y.S.2d 780 [2008] ). Simply stated, any 95 N.Y.S.3d 457such breach of warranty that might possibly be found would not affect t......
  • Sharipova v. BNV Home Care Agency, Inc., 530614
    • United States
    • New York Supreme Court Appellate Division
    • February 4, 2021
    ...the Board's decision to the contrary is not supported by substantial evidence (see Matter of Marotta v. Town & Country Elec., Inc., 51 A.D.3d at 1128, 857 N.Y.S.2d 340 ; Matter of Camino v. Chappaqua Transp., 19 A.D.3d 856, 857, 796 N.Y.S.2d 736 [2005] ; Matter of Sullivan v. L'Heureux, 18 ......
  • John L. Bell, Individually And, Inc. v. White
    • United States
    • New York Supreme Court Appellate Division
    • December 12, 2013
    ...the law of the case, and, despite his protestations, we perceive no legitimate basis upon which to revisit them ( see Webster v. Ragona, 51 A.D.3d 1128, 1131–1132, 857 N.Y.S.2d 780 [2008]; Shawangunk Conservancy v. Fink, 305 A.D.2d 902, 903, 762 N.Y.S.2d 109 [2003] ). Turning to the fee awa......
  • Request a trial to view additional results

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