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RPAPL §881—License To Permit Use of Adjacent Property During Construction Denied—Constant Unapproved Changes to Construction Plans Did Not Rise to The Level of Proof Required by RPAPL §881 and Permanent Change to Respondent’s Property Preclude the Granting of a §881 License—No Reimbursement of Expert and Attorney Fees When License Is Not Granted

A petitioner moved pursuant to RPAPL §881 (§881), for a license to enter upon the respondent’s property “for an extended period of time.” The respondent opposed the application and counterclaimed for reimbursement of expert fees, attorney fees and costs.

The respondent’s property and the petitioner’s property share a common wall (south wall). The petition described construction that would occur along the east, south and west sides of the respondent’s property. The work would include, inter alia, removal of the south wall and trees and would involve excavation and foundation work related to such removal. The petitioner claimed that there was “no reasonable alternative to stabilize the (respondent’s property’s) soil then to replace the disturbed soil and install timber lagging to keep the soil in place.”

The petitioner stated that it had “not yet been determined what permanent reinforcement the West Wall will require after the project is completed if, in fact, any is required.” The petition also stated that “[t]he improvements constituting the Work are mostly temporary in nature and are all are intended to safeguard” the project property, the adjacent property and or the public during the contemplated construction and permit the project to be built.

The petitioner alleged that there had been an “extensive and lengthy negotiation for license fees and reimbursement to respondent, which ultimately failed, and that the breakdown in communication effectively amounts to a refusal by respondent to permit access to respondent’s property by petitioner.” The petition further alleged that the respondent would not suffer “any loss of use or enjoyment” of its property if the license were granted since the adjacent property is “unimproved and vacant.” The petition set forth several details of the contemplated work and was supported with expert affidavits.

The respondent countered that it had never refused access to the petitioner. The contemplated construction involves “permanent encroachments,” there are “unresolved boundary disputes between the parties,” the petitioner “cavalierly responded to requests for information necessary to effect a license agreement”, and that because of these issues the respondent has been “restrained from the ability to market and sell its property to another entity.” The respondent supported its opposition with expert affidavits.

The respondent also argued that the development plans are “not clear or precise,” and the petitioner has new plans which the respondent had yet to be provided with, including “the scope and the duration of the construction work to be completed.” The respondent noted that the petition omitted “dates and times for the many stages of the project.” It asserted that the petitioner was unfairly accusing the respondent of being “unreasonable.” The respondent sought reasonable attorney and expert fees and in the event that the license is granted, adequate protections.

The petitioner alleged, inter alia, that the respondent had been provided with “up to date documents in an attempt to finalize an access agreement.” It noted that the “depth and complexity of the tree roots will not be known until the tree on respondent’s property is removed.” The petitioner further alleged that the “timber lagging will be abandoned in place and will continue to serve this function unless and until the adjacent property is developed—it will not inhibit respondent’s ability to utilize the 7” of its property in a future development.” The petitioner emphasized that the respondent’s property is vacant and “there is no business or residence that would suffer interruption or disruption as a result of the access sought by petitioner.”

Thereafter, the petitioner advised the court that the “7 inches of timber-lagging will no longer remain on respondent’s property, and it is believed that respondent’s west-wall only needs to be braced temporarily.” Additionally, a respondent’s expert asserted that a sidewalk bridge “encroaches and trespasses between 3 3/4 inches and 8 3/4 inches onto respondent’s property.”

A petitioner’s expert affidavit addressed “altered plans with respect to the timber lagging,” indicating that instead of installing timber lagging, the contractor will “excavate approximately 9 feet horizontally onto the adjacent property….” This expert described a “new plan” that would eliminate “bracing/shoring” in the area of excavation related to the south wall and contemplated use of a “concrete deadman” in conjunction with the excavation. The expert further stated that “it is possible that bracing/shoring of the West Wall will be temporary.” The petitioner also contended that certain work should not be characterized as “encroachments,” but they are rather “protections” for the benefit of the respondent’s property. The petitioner also asserted that the disposal of excavated soil will comply with environmental regulations.

The respondent argued that the “plans are constantly changing and the majority of the areas of concern remain uncertain….” It asserted that the petitioner’s use of “essentially the entirety of the respondent’s property for an unknown duration places a severe hardship and inconvenience upon respondent….”

Section 881 provides for a license when a neighbors contemplated “improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused….” Section 881 further provides that the petition “shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.”

The court explained that the granting of a §881 license is “addressed to the sound discretion of the court, which must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted.” Courts are to consider “the nature and extent of the requested access, the duration of the access, the protections to the adjoining property that are needed, the lack of an alternative means to perform the work, the public interest in the completion of the project, and the measures in place to ensure the financial compensation of the adjoining owner for any damage or inconvenience resulting from the intrusion.”

Courts have held that “[w]here a petitioner seeks a license to create a permanent encroachment now not in existence, however slight, the ‘relief sought transcends the statute… and it is contrary to the elementary principles of equity.’” The court also stated that if a petitioner “fails to provide items sought that had been memorialized in detailed, specific plans approved by the Department of Buildings, a petitioner has failed to make a showing of reasonableness and necessity of the trespass.”

The court denied the §881 license. The petitioner failed to provide the court with a “clear–cut detailed, and specific plan about how they intend to use respondent’s property, nor the duration of the use.” Although both parties indicated that the contemplated duration of the petitioner’s use of the respondent’s property is approximately 24 months, the court was “concerned about the ever—changing and unreliable construction plans….” The court was also concerned “about the bracing of the south wall and the west wall, what it would ultimately entail and the permanency of the eventual solution.”

The court cited the petitioner’s changing description of the necessary work and noted that the petitioner’s environmental report was a “purely speculative report of what will be done with the soil from respondent’s property.” Moreover, the “scope and nature” of the petitioner’s use of access to respondent’s property was “ambiguous with respect to the substantial alterations.” The timber lagging was originally described as “not permanent but would remain on respondent’s property after the project completion” and then the timber lagging was eliminated in favor of “extensive excavation,” in connection with “bracing, that may or may not be permanent to a large portion of the respondent’s property for an unknown duration of time.”

The court refused to accept that “any permanent changes to respondent’s property would entail mere ‘protection’ rather than ‘encroachment’ of respondent’s property.” The court also did not agree that because the respondent’s property is a vacant lot, there would be “no business or residence that would suffer interruption or disruption as result of the access sought by petitioner.”

The respondent provided evidence that it intended to sell the property and such sale “could not progress due to the continued negotiations and uncertain nature of the work to be done to the property.” The court stated that the fact that the respondent’s property is “an unused commercial lot does not permit the petitioner to use the property however and whenever they see fit, and to make permanent changes to the property in the process.”

The court emphasized that decisional precedent held that “before it can grant a license pursuant to … §881, it is critical that the court be apprised of the exact nature, timing and extent of the work requiring the license.” The court held that the “constant unapproved changes to the construction plans do not rise to the level of proof required pursuant to…§881, and the permanence of the changes to respondent’s property requires that the court deny petitioner’s application.”

The court denied the respondent’s request for attorney and expert fees, explaining that case law has held that “if a respondent is successful in opposing an 881 petition and no license is granted then that respondent would not be entitled to attorneys’ fees for successfully opposing the petition.”

Comment: Adam Leitman Bailey, counsel for the respondent, emphasized that as Justice Guzman held, the movant’s plans “must be detailed and specific and provide the neighbor with the ability to understand the potential work and damage that might occur.” He stated that this decision illustrates that absent compliance with such requirement, access will be denied.

Darius P. Chafizadeh of Harris Beach PLLC and Thomas Smith of Smith Buss & Jacobs LLP, counsels for the petitioner stated they understand the court’s concerns and they are pleased that the parties were able to reach a mutually acceptable license agreement following the court’s decision.

Highbridge Facilities v. Cromwell Avenue Investors, LLC, Supreme Court, Bronx County, Index No. 810953-2021E, decided Feb. 23, 2022. Guzman, J.

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