38 Misc. 3d 604
N.Y. Sup. Ct.2012Background
- Ponito Residence LLC owns 19 West 12th Street; 12th Street Corp. owns adjoining co-op at 13 West 12th Street.
- DOB issued a 127-linear-foot sidewalk bridge work permit for 2011–2012 to allow windows replacement at the co-op.
- The sidewalk bridge encroaches on Ponito’s property by about 20 feet and Ponito contends no permission was granted.
- Ponito sought a preliminary injunction to remove the bridge and/or to convert the action to RPAPL 881 license proceeding with limitations, fees, and damages.
- Responding, 12th Street Corp. argues no imminent irreparable harm, risks to public safety if removed, and points to ongoing negotiations and safety regulations.
- Delays by 12th Street Corp. in deciding how to proceed with the window project contributed to the extended need for the sidewalk bridge; attempts at a cooperative extension were made but stalled.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ponito is entitled to a preliminary injunction to remove the sidewalk bridge | Ponito would suffer irreparable harm and loss of access to repairs; removal is necessary | Removal threatens public safety and would violate building codes; no irreparable harm shown | Denied; no irreparable harm shown and public-safety concerns predominate |
| Whether to convert the action to an RPAPL 881 license proceeding | Conversion warranted to allow necessary repairs on adjoining property | Conversion improper or unnecessary absent consent issues forcing entry | Granted; action converted to RPAPL 881 license proceeding; provisions for duration and license terms imposed |
| What are the license terms and financial conditions | License terms should address duration, fees, and damages in Ponito | License terms should be limited; fee not clearly warranted | License for five months; $1,500 per month; insurance proof required; option to seek increased coverage; damages reserved for later determination |
| Damages and insurance considerations upon granting the license | Ponito may seek damages for injuries from the license period and needs adequate insurance | Damage damages to be assessed later; insurance may be sufficient | Ponito may seek damages after license period; proof of additional insured status required; potential increase of coverage allowed |
Key Cases Cited
- Mindel v. Phoenix Owners Corp., 210 A.D.2d 167 (1st Dept 1994) (license under RPAPL 881 reasonable; standard of reasonableness; balance of interests)
- Marsh v. Hogan, 81 A.D.3d 1241 (3d Dept 2011) (preliminary injunction requires demonstrating likelihood of success, irreparable harm, and balance of equities)
- Aetna Ins. Co. v. Capasso, 75 N.Y.2d 860 (1990) (preliminary injunction standards require 'clear right' to relief)
- City of New York v. 330 Cont. LLC, 60 A.D.3d 226 (1st Dept 2009) (drastic remedy; irreparable harm crucial factor in injunctions)