43 Misc. 3d 623
N.Y. Sup. Ct.2014Background
- North 7-8 Investors seeks a RPAPL 881 license to access respondent Newgarden's adjoining property for construction-related shoring, deck protection, and scaffolding.
- The rear wall of Newgarden's single-story garage abuts about 25 feet of North 7-8's property; project is two seven-story buildings with 159 residential units.
- Initial plan required shoring of the garage wall and covering the roof deck; DOB issued a partial stop-work order pending access conditions.
- After negotiations, North 7-8 revised plans to reduce intrusion, eliminating shoring the garage wall and covering the roof deck, and proposing a cantilevered safety balcony with netting.
- Respondent argued access was not necessary and sought reimbursement for architectural and legal fees; the petition and scope of access remained contested.
- Court granted a one-year license with detailed safety, insurance, indemnity, and fee provisions, and denied access to main rooftop extension and underpinning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether RPAPL 881 license to enter should be granted | North 7-8 requires access to complete the building. | Access should be limited and safeguarded; may not be necessary for all work. | Yes, license granted with conditions. |
| Scope and duration of access | Access needed to finish exterior east wall and related work. | Limit access to air space and protect property; no underpinning. | Limited to air space over garage for one year; no underpinning. |
| Allocation of fees for architectural and attorneys' fees | Respondent should bear reasonable review and monitoring fees. | Fees should not be required or unnecessarily burdensome. | Petitioner must reimburse respondent's architect and attorneys' fees; fees tied to license terms and proportional to project. |
| Access for chimney extension and main building roof work | Chimney extension is required by code and within license scope. | Roof access beyond temporary license is improper. | Chimney extension access denied as beyond RPAPL 881 scope; other access approved with safeguards. |
Key Cases Cited
- Sunrise Jewish Ctr. of Val. Stream v Lipko, 61 Misc 2d 673 (Sup Ct, Nassau County 1969) (access necessary for construction where needed to complete project)
- Matter of Rosma Dev., LLC v South, 5 Misc 3d 1014[A] (Sup Ct, Kings County 2004) (recognizes license for improvements; provides framework for damages and safeguards)
- Deutsche Bank Trust v 120 Greenwich Dev. Assoc., 7 Misc 3d 1006[A] (Sup Ct, NY County 2005) (recognizes RPAPL 881 license framework and safeguards)
- MK Realty Holding, LLC v Scneider, 39 Misc 3d 1209[A] (Sup Ct, Queens County 2013) (fees and safeguards under license approach)
- Ponito Residence LLC v 12th St. Apt. Corp., 38 Misc 3d 604 (Sup Ct, NY County 2012) (explicitly awards license fees in certain RPAPL 881 licenses)
- Matter of Broadway Enters., Inc. v Lum, 16 AD3d 413 (2d Dept 2005) (permits extended access considerations; encroachment issues)
- Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1 (1986) (attorneys’ fees as incidents of litigation and equitable considerations)
- 10 E. End Ave. Owners, Inc. v Two E. End Ave. Apt. Corp., 35 Misc 3d 1215[A] (Sup Ct, NY County 2012) (unreported decision on attorney fees under RPAPL 881; distinguished by court)