Real Property; Equity; Strict Liability; RPAPL §881
By: Carolina Boutureira | Staff Writer
Plaintiff wished to complete a demolition to construct a new building. In order to perform the demolition, Plaintiff needed to encroach on eighteen adjoining properties owned by Defendants. Moreover, the New York City Administrative Code mandates that a protective fence or another form of perimeter wrap be constructed to protect any adjacent properties involved that are within fifteen feet of a demolition. The Plaintiff affirmed that the fences proposed would be ten feet into the backyard of each abutting property. The Defendants refused to authorize the intrusion. Accordingly, the Plaintiff filed a motion pursuant to RPAPL §881 for a license to enter the adjoining properties owned by the respondents in order to complete their project.
RPAPL §881 authorizes the court full discretion to grant a license on equitable terms if no agreement has been achieved amongst both parties. Plaintiff contended that without the encroachment on the Defendants’ property, the project could not be completed efficiently and safely. Defendants opposed the encroachment due to its potential for hardship and destruction on their properties.
The Court opined that Plaintiff’s access to the Defendants’ properties was necessary to protect these abutting properties from the falling debris during the demolition process of the project. Further, the Court found that Defendants’ failed to demonstrate any special or extraordinary circumstances that would arise from building the fence to impede the Court from granting the license.
The Court further clarified that RPAPL §881 provides that Plaintiff is strictly liable for damage that may arise on Defendants’ properties. Since the statute calls for equity, the Court affirmed that any owner that must allow access to their property should not have to bear any cost resulting from this access, even the steps necessary to protect the property. However, the Plaintiff was not mandated to reimburse Defendants’ for any fees spent or incurred on retaining architects or lawyers while reviewing the Plaintiff’s plans. Ultimately, the Court held that the Plaintiff was mandated to procure insurance in the amount of $1,000,000, covering all Defendants and their properties in addition to a monthly fee as a condition of a license. Rather than set an arbitrary fee, the Court directed both parties to submit an expert affidavit from a real estate expert appraising the proposed use and occupancy of ten feet of a backyard piece of property. The Court provided relevant examples including Matter of Rosma, in which the Court awarded a $2,500 monthly fee as a condition of a license for the purpose of creating a sidewalk that abutted 10 feet into the defendants’ real property.
Therefore, because of the Court’s ability to reach an equitable decision for both parties in the present case, Plaintiff was awarded the license for the duration of one year pursuant to RPAPL §881.
Matter of 2225 46th St., LLC v. Hahralampopoulos, 1/17/2017 (Dufficy, J.)