Matter of 379 Hawthorne LLC v. Hunter
2024 NY Slip Op 51451(U)
N.Y. Sup. Kings2024Background
- 379 Hawthorne LLC sought a court-ordered license under RPAPL § 881 to access neighboring property (383 Hawthorne Street) for construction (a new five-story, nine-unit residential building).
- Respondents (Hunter and Pesca) own and reside at 383 Hawthorne Street, adjacent to petitioner’s property on a block of attached homes in Brooklyn.
- Petitioner claimed access was necessary to install protections and scaffolding, and offered insurance and license fees; respondents denied access due to past damages and ongoing construction disruptions.
- Respondents documented alleged property damage, trespass, procedural shortcomings, and interference with their business (Pesca’s podcast) caused by petitioner’s construction activities.
- The court noted the petition was based on unsworn statements from petitioner’s attorneys without sufficient professional or admissible evidence.
Issues
| Issue | Plaintiff’s Argument | Defendant’s Argument | Held |
|---|---|---|---|
| Entitlement to license under RPAPL § 881 | Access is needed for necessary improvements/construction; minimal inconvenience to respondents; offered license fee and insurance. | Petitioner caused damages, acted without due notice/permits, trespassed, offered inadequate protections/compensation, interfered with use of home/work. | Petition denied; no license granted. |
| Sufficiency of Petitioner’s Proof | Petition provides site safety plan, insurance, and engineering documentation; pre-construction survey sufficient. | Documentation insufficient/unauthenticated; not by professionals with personal knowledge; prior survey found damage but was incomplete. | Petitioner failed to meet prima facie burden; petition denied. |
| Compensation for interference (license fee, studio rental, damage) | License fee/insurance are adequate; demands for studio rental/escrow are excessive. | License fees insufficient; additional compensation needed for business disruption, actual damages, and legal/engineering costs. | Court not required to set fee; did not reach studio issue, but recognized business impact. |
| Balancing Hardship/Inconvenience | Delay would harm Petitioner financially; inconvenience to respondents minimal and mitigated. | Respondents face significant ongoing hardship, property damage, business interference, and lack of trust in Petitioner’s compliance. | Inconvenience to Respondents outweighs hardship to Petitioner; license denied. |
Key Cases Cited
- Queens Coll. Special Projects Fund, Inc. v. Newman, 154 AD3d 943 (balancing hardship and inconvenience in RPAPL § 881 proceedings)
- Queens Theater Owner, LLC v. WR Universal, LLC, 192 AD3d 690 (courts should grant RPAPL § 881 licenses only with sufficient proof and terms to protect respondent)
- DDG Warren LLC v. Assouline Ritz 1, LLC, 138 AD3d 539 (owner compelled to grant access should not bear costs from access)
- Van Dorn Holdings, LLC v. 152 W. 58th Owners Corp., 149 AD3d 518 (respondents entitled to professional review and meaningful protections in RPAPL § 881 cases)
- McMullan v. HRH Constr., LLC, 38 AD3d 206 (utter failure to justify entry requires denial of RPAPL § 881 application)