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Adam Leitman Bailey, P.C., Prevails in RPAPL § 881 Proceeding; Client Gains Access to Neighboring Property for Construction

Adam Leitman Bailey, P.C., prevailed for its client in a contested proceeding to obtain a license to enter upon a neighbor’s property to install protective measures necessary to allow the client’s construction project to proceed safely as required by the New York City Building Code.

The client, a Brooklyn-based developer, acquired a historic Park Slope mansion in 2015 for $9.5 million. The client proposed to dramatically expand the building and convert it from a single-family home into eight residential units.  The client’s next-door neighbor, a ten-unit co-op, opposed the project at every stage: first, before Brooklyn Community Board 6; next, before the New York City Landmarks Preservation Commission, where the client obtained a Certificate of Appropriateness for its renovation plans; and finally, in New York State Supreme Court, where Adam Leitman Bailey, P.C., defeated the co-op’s attempt to overturn the Landmarks Commission’s decision.

But the co-op was not done throwing up resistance. While all parties could agree that the developer needed to install a sidewalk shed on the co-op’s property for construction of a multi-story masonry wall to proceed safely and as required by the Building Code, the co-op claimed it could not grant access unless its engineer would first be permitted to review and second-guess the client’s construction plans. The co-op further claimed that it required vast sums of insurance coverage, as well as a damage escrow fund, an exorbitant license fee, and reimbursement for its excessive legal and engineering fees.

Unable to get the co-op to budge, the client engaged Adam Leitman Bailey, P.C., to seek a court-ordered license pursuant to Section 881 of New York’s Real Property Actions and Proceedings Law. The firm quickly engineered a procedural victory by ensuring that the special proceeding was assigned to the same judge who had recently sided with Adam Leitman Bailey, P.C., and its client in the related Landmarks case. In what must surely be a record, Adam Leitman Bailey, P.C., won the case and obtained a judicial license less than 48 hours after oral argument. Siding with Adam Leitman Bailey, P.C., on all the issues, the court found that the co-op was not entitled to see the client’s construction plans; that the client had proposed a reasonable amount of insurance coverage; and that no damage escrow was required. Notably, Adam Leitman Bailey, P.C., persuaded the court that the co-op should not receive any license fee, for which the only justification offered by the co-op was as retribution for the inconvenience of being taken to court. Finally, in an important timing victory for the client, the court ruled that any consideration of reimbursement for the co-op’s reasonable legal and engineering fees associated with the license should be deferred until after the completion of construction, now authorized to proceed immediately.

Adam Leitman Bailey and Jeffrey R. Metz represented the developer on behalf of Adam Leitman Bailey, P.C.

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