DDG Warren LLC v. Assouline Ritz 1, LLC
138 A.D.3d 539
N.Y. App. Div.2016Background
- Petitioner DDG Warren LLC sought an RPAPL §881 license to access neighboring penthouse property for a multi-year development project at 16 Warren St.
- Respondents (Assouline Ritz 1, Lichten Ritz 2, and 16 Warren St. PH) opposed aspects of the license and sought contemporaneous license fees, a bond, and attorneys’ fees.
- Supreme Court denied respondents’ request for an immediate license fee (without prejudice), directed petitioner to post a $750,000 bond, and awarded attorneys’ fees to all respondents without a time limit.
- Petitioner appealed, arguing respondents’ appeal was moot and that payments for development/air rights eliminated respondents’ entitlement to license fees.
- The Appellate Division held the appeal was not moot, concluded contemporaneous license fees were appropriate given substantial interference over the planned 30-month period, and remanded for determination of the fee amount and possible recalculation of the bond.
- The court upheld the authority to order a bond despite petitioner’s insurance coverage and affirmed that awarding separate attorneys’ fees to multiple respondent groups (and not setting strict temporal limits) was within the court’s discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of respondents’ appeal | DDG: sale of penthouse before license moots appeal | Respondents: license fee will be awarded to current owner, not moot | Not moot; appeal proceeds because fee would go to current owner |
| Whether to award contemporaneous license fees under RPAPL §881 | DDG: prior payments for development/air rights eliminate need for additional license fee | Respondents: compelled access causes distinct harm; equity requires compensation during intrusion | Court: grant contemporaneous monthly license fee; remand to set amount |
| Authority to require bond | DDG: insurance coverage makes bond unnecessary | Respondents: bond appropriate to secure fees/damages | Court: bond proper; may be recalculated after fee determination |
| Allocation and timing of attorneys’ fees | DDG: limit fees and duration; avoid multiple fee awards | Respondents: each represented separately and entitled to fees | Court: awarding fees to all respondent counsel and no strict time limit was within discretion; petitioner may later challenge fees-on-fees |
Key Cases Cited
- None (opinion cites unreported/supplemental decisions and Misc. term slip opinions; no officially reported authorities were cited).