Petitioner brings this special proceeding, pursuant. to section 881 of the Real Propеrty Actions and Proceedings Law, for a license to enter on respondent’s premises for five days during a 30-day period in order to make certain repairs to-the side and front walls of petitioner’s premises. The statute, enacted in 1968, provides: ‘ ‘ When an owner or lessee seeks to make improvements or rеpairs to real property so situated that such improvements or repairs cannot he made by the owner or lessee without entering the premises of an adjoining ownеr or his lessee, and permission so to enter has been refused, the owner or lesseе seeking to make such improvements or
Petitioner alleges that the northerly wall of her premises has become damaged by moisture seeping through from the exterior and that to correct that condition, it is necessary that aluminum siding be installed on the northerly wall whiсh is to be waterproofed. The work can be accomplished, petitioner claims, only by erecting a .scaffolding which, of necessity, requires entry on respondent’s prеmises which adjoin petitioner’s property, and respondent has refused petitioner’s request for permission to do this. Respondent’s refusal is predicated on the fact that the aluminum siding to be erected will encroach on respondent’s property and thereby create an easement and a cloud on title. In her memorandum, petitioner concedes that the aluminum siding will encroach one inch on respondent’s proрerty which, she claims, will constitute a minor encroachment and therefore entry should be permitted by the court.
Since the answer interposed by the respondent denies the mаterial allegations of the petition, the court might ordinarily be required to direct a hearing of the issues in this proceeding in order to render a decision. In view of petitioner’s admission, however, that she seeks a license to enter on respondent’s proрerty not only to make repairs to the northerly wall of the building but to create, as well, an encroachment on that property, the court is constrained to deny the pеtition. Section 881 of the Real Property Actions and Proceedings Law was designed to permit an owner to make repairs to real property so situated that the repairs cannot be made without entering upon the premises of an adjoining owner. In recommending the legislation, the Law Revision Commission emphasized that a problem exists where a land owner .seeks access to an adjoining land to make improvements or repairs to his own property and the adjoining land owner denies permission to enter.
In Chase Manhattan Bank v. Broadway, Whitney Co. (59 Misc 2d 1085, 1087), the court, in construing this statute, said: ‘1 Implicit in the recommendation and in the statute is the requirеment that the work to be done is an improvement or repair.” The statute is thus limited to permission for the making of an improvement or repair. What the statute author
The cases cited by petitioner are not applicable since they involve existing minor encroachments which a court of equity will not enjoin. This petitioner seeks a liсense to create an encroachment now not in existence. The relief sоught transcends the statute and, even though the encroachment be deemed slight, it is contrary to elementary principles of equity. (Moran v. Gray,
Accordingly, the application is denied and the petition is dismissed.