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Realty Law Digest

The petitioner owns a building that abuts the respondent’s building. The petitioner was in the process of demolishing its existing building and building an eight-story mixed use building (project). The petitioner had retained an architect, a structural engineer, a contractor and an additional architect to “advise of site safety measures.” The DOB had approved the petitioner’s demolition phase of the project. Thereafter, the petitioner commenced a special proceeding pursuant to RPAPL §881 (§881).

The petitioner argued that it met the requirements of §881 and it needed a license “for temporary access to respondent’s building to install certain protection measures in order to comply with the buildings Code §3309” (§3309). The petitioner claimed a need to “install temporary overhead protection in the form of a rear yard shed in the rear yard of respondent’s building” (shed). The petitioner asserted that the DOB permitted the shed to protect the respondent’s building and it would “only have a small impact on respondent because the rear yard is unoccupied and the use of respondent’s rear yard during winter will be minimal.” The petitioner had offered a license fee of $1,500 per month for the shed.

The petitioner allegedly attempted to negotiate a license agreement with the respondent for several months and asserted that absent the requested access, “it will be impossible to continue with the project in a safe manner.” The petitioner argued that if the project was delayed and the DOB classified the project as “unsafe,” the petitioner will be subject to “exorbitant costs and expenses to make the building safe as well as violations, fines and penalties by the DOB.” The petitioner contended that the respondent was “using monetary demands as an excuse to delay the project” and to date, it reimbursed the respondent more than $14,000 for professional fees.

The respondent countered that the petitioner’s application for a license is “fatally deficient” and the petitioner had not been denied access pursuant to §881, but was “using litigation to bully an elderly woman with limited resources.”

The respondent claimed that the petitioner sought to install “party wall tie-backs which are permanent encroachments” and the petitioner failed to “respond or address the comments of respondent’s engineer on the tie-backs or the overhead protections in the rear yard.” The respondent claimed that she was willing to enter into a license agreement.

881 provides:

When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, 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 in the adjoining owner or his lessee for actual damages occurring as a result of the entry.

The court explained that “§881 ‘does not direct the court to grant a license to every applicant.’ …Under this provision, the petitioner must ‘make a showing as to the reasonableness and necessity of the trespass.’ …Indeed, courts are required to balance the interests of the parties and should issue a license ‘when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license is refused….’” courts will “‘consider the extent to which the access sought interferes with the owners use and enjoyment of the property, the risks it poses to the property, as well as the complexities which the access sought presents in drafting a license agreement….’”

New York courts have “interpreted §881 to allow for an encroachment as justice requires.… Where the petitioner is seeking a license for a permanent encroachment, ‘a petitioner must demonstrate that…it is virtually unavoidable.’” “Equity further requires that the respondent who is compelled to grant access should not have to bear any costs resulting from the access to his or her property.”

The court held a hearing with respect to the §881 license. The petitioner’s general contractor testified as to how the party wall tie-backs would be installed and noted inter alia, that … “it is done with a hand tool. Screwing in the pin takes, … ten seconds, … a couple of seconds to screw it in and then putting the brick back may take a couple of minutes.”

A respondent’s engineer testified that if the “pull testing failed, the party wall would be exposed for a certain period of time” and “pull testing was needed ‘to ensure that the anchors can adequately sustain the load for the application there being used in.’”

Another petitioner’s engineer testified that “the pull testing would be a test of those … anchors once they’re installed into the joist …” that they are not “done in every single (anchor).” They would “specify about 10 to 15 percent of them, to get a representative data essentially; … also a visual inspection as well, of the joists.”

The petitioner agreed to pay the respondent’s engineer to “observe the installation of the tie-backs to ensure the pull testing is done and the adequacy of the tie-back” and also stipulated that the plans “would be updated to provide for no more than six inches of debris with regard to structural load.”

The court found that the “intrusion into the adjoining property by way of the tie-backs is minimal and…is necessary until a new building is erected….” Thus, the court held that the petitioner “is entitled to a license to install the party will tie-backs.”

The court stated that the tie-backs were the “most reasonable option … under the circumstances and is ‘virtually unavoidable.’” Therefore, the petitioner was entitled to a license to install and maintain the shed. The court believed that the shed would protect the “occupants of respondent’s building, from potential danger from the demolition” and “will not result in a significant physical intuition because the rear yard is unoccupied.” The court further held that the petitioner was entitled to a license for “access to conduct a preconstruction survey” and directed that petitioner provide the respondent with a “copy of the signed … preconstruction survey report, which will include photos and … descriptions of the existing conditions….”

A license fee “compensates the owner for the use the petitioner makes of his or her property and his or her temporary loss of enjoyment of a portion of his or her property.” The court ordered the petitioner to pay a license fee of $1,500 per month, while the shed is installed. If the shed remains beyond 12 months, the license fee will increase to $2,000 per month. The respondent failed to show that such fee would be “inadequate compensation.” The rear yard was “unoccupied” and the shed would not be a “significant physical intrusion” on the respondent’s building.

Section 881 provides for reimbursement for “reasonable attorneys’ fees incurred in a §881 action.” The court explained that courts will “usually, and especially in a manner involving a large fee, be presented with an objective and detailed breakdown…of the time and labor expended, … (and) other factors he or she feels supports the fee requested.” The amount of the fee is “left to the sound discretion of the trial court.”

The respondent sought a significant legal fee award. The court found that the “exorbitant amount sought is not reasonable.” The respondent’s counsel’s invoice had not provided a “‘detailed breakdown’ of legal work performed.” The evidence did not show “the difficulty of the manner, the skill, time and labor required, her experience, ability and reputation, and the customary fee for similar services.” The court emphasized that “reasonable fees” did not mean “all fees allegedly incurred.” The court concluded that the respondent’s counsel was entitled to $42,972.50 for the work “litigating this proceeding.”

The court also awarded to respondent engineering costs of $12,568.75 for services by one engineering firm and $6,632.72 for a second engineering firm and directed that the petitioner reimburse the engineering fee for “oversight during the installation of the tie-backs.”

Thus, the court ordered that the petitioner be granted a license “to install a… hed, party wall tie-backs and conduct a pre-construction Survey” and that the petitioner pay a monthly license fee of $1,500 until the date that the developer “has completely removed the…shed.” The petitioner is to pay a monthly license fee of $2,000 per month after 12 months. The petitioner is to notify the respondent when all work has been completed and all protection excluding the tie-backs have been removed. The respondent’s property has to be returned to its original condition, excluding the party wall tie-backs.

The petitioner was also ordered not interfere with the respondent’s necessary access to its property and quality of life and take necessary measures to prevent damage to the respondent’s property. The petitioner was further ordered to add the respondent as an additional insured under its insurance policy. The petitioner will be liable for any damages incurred as a result of the license. Additionally, the petitioner will indemnify the respondent from any “liability, claims, damages or losses, including reasonable attorney’s fees,” arising from the petitioner’s work, “whether or not caused by the negligence of petitioner or its employees, agents, contractors or sub-contractors.”

The petitioner is to immediately report, in writing to respondent, any damage to respondent’s property caused by petitioner’s work, and cure any violations placed by any governmental or administrative agency resulting from the petitioner’s work. The petitioner must reimburse the respondent for any such fines or penalties. Finally, the court awarded the respondent attorney fees in the amount of $42,972.50, less the legal fees already reimbursed and $19,201.47 for reasonable engineering fees and the petitioner must pay engineering fees for the observation of the installation.

Comment: Adam Leitman Bailey, counsel to the petitioner, emphasized that petitioner had demonstrated that the proposed protection measures were necessary and reasonable and interference with the respondent’s property would be “nominal.” He also noted the petitioner’s willingness to pay for the engineering and legal costs incurred by the respondent. I was advised that a Notice of Appeal has been filed.

Tompkins 183 LLC v. Marsha Frankel, Supreme Court, New York Co., Index No. 159644/2019, decided Dec. 6, 2019, Rakower, J.

Original Article

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