Do Good Fences Make Good Neighbors?

This was originally posted on the SGR Blog.

Ismael Realty Corp. filed suit to obtain a license for permission to enter upon the adjoining property owned by Helen Zervos in furtherance of a construction project in Astoria, New York. The area in dispute was a concrete alley that separated the neighboring properties.

A three day hearing was held in November, 2019. Abdul Navaraez, Kenneth Philogene, and George King testified on behalf of Ismael. Dennis Zervos, Louis Leonidas Zervos, and Nicholas Politis testified for the Zervos. As a threshold matter, the Court credited the testimony given by the Zervos’ witnesses. To the extent that the testimony of the Ismael’s witnesses was inconsistent with that given by the Zervos’ witnesses, the Court declined to credit such testimony.

Ismael purchased two contiguous lots in Astoria with the intention of erecting a 5 or 6-story residential building. Before construction could begin, it was necessary to demolish the then-existing structures on the two lots.  The properties lie immediately adjacent to the Zervos property, which consists of a 3-family home, with multiple tenants.

The Zervos property also contains a gated 15-foot long driveway, located in the front of the house; the driveway is about 10 feet across; and  it leads to an attached garage. A front yard, with approximately the same dimensions as the driveway, is to the right of the driveway. According to Mr. Zervos, there was, initially, no animosity between the two  property owners with respect to the construction project. In fact, Mr. Zervos testified that, in February, 2018, he accommodated Ismael by giving access to his property to facilitate demolition.

Any civility between the parties  completely eroded at some point after the start of demolition. At that time, Ismael built a fence on or near the property line. The fence, however, was removed at some time thereafter because of an apparent change to Ismael’s building plans.

There was now no fence dividing the properties. Mr. Zervos and his son, Dennis, erected a metal fence along what they believed to be the property line. On October 24, 2018, the fence was torn down by either Mr. Navaraez or individuals employed by him. As the fence was being removed, Mr. Zervos, who was 89 years old, stood on the lower part of this structure to see how the construction was proceeding. As he stood on the fence, one of the Ismael’s workers shook the fence with such force that Mr. Zervos fell down, injuring himself.

The Court did not make a finding whether or not this act was intentional. It was sufficient merely to note that this event marked the beginning of what appeared to be unresolvable hostility between the parties. Squandering any opportunity to attempt to settle this case, Ismael, instead,  escalated tensions between the parties by entering the Zervos property several times and excavating or digging under the concrete steps that are attached to the rear of the their house, the concrete alley, as well as the concrete slab in their driveway and front yard. As a result, the walkway and concrete steps essentially buckled, collapsing, after even further excavation. Both the driveway and the concrete front yard were also in danger of collapsing. As a result of the actions by the Ismael’s employees, the Department of Buildings issued a vacate order with respect to the Zervos’ steps and the alleyway.

In January 2019, the Department of Buildings issued a “stop-work order.” The decision was, for unknown reasons, rescinded on July 26, 2019, by a newly appointed Commissioner of the Department of Buildings. On August 6, 2019, the Court issued a temporary restraining order, directing that all construction work by Ismael cease. In November, 2019, the Department of Buildings, once again, issued a “stop-work order.”

Despite the  compelling evidence, Navaraez, one of the owners of Ismael, failed to understand why the Zervos harbored such distrust toward Ismael and its employees. The Court found that the attempt at the hearing to inject racism into this case (Navarez and his son are of the Islamic faith) to explain the motivation of the litigation by the Zervos family was both pathetic and offensive.

The Court addressed Ismael’s application for a license to enter the Zervos property. The application  was denied with leave to renew in accordance with the Court’s decision and once the “stop-work order” was lifted by the Department of Buildings and the parties were able to resolve their differences regarding the damages caused to the Zervos property.

Section 881 of the Real Property Actions and Proceedings Law which provides as follows:

In this case, the hearing testimony and the exhibits contained in the petition established that Ismael was making improvements on the merged lots by constructing a 5 or 6-story apartment building. In order to continue and complete this project and protect the Zervos’ home, its occupants, her property, and any visitors from falling construction debris, Ismael contended that it was necessary to enter the adjacent property and place 10-foot tall sidewalk sheds in her driveway and backyard.

The Zervos’ driveway is about 15 feet long and 10 feet across. The driveway can accommodate two cars parked parallel to one another. According to Kenneth Philogene, Ismael’s engineer, in order to set up those sheds, it would be necessary to place a series of steel posts up to 8 feet tall and 5 feet apart; the posts would be connected by a 1-inch horizontal steel bar and reinforced at the bottom by a 1-inch thick piece of wood, which is 12 inches long and 6 inches wide. Phylogenetic further testified that those posts would be placed along the Zervos’ driveway and run parallel, 6 or 7 feet apart. Although Ismael initially indicated that the sidewalk sheds would be placed on the contiguous property for 6 months, the hearing evidence established that the sheds would be up for as long as 18 months.

In addition, although it was unclear from the hearing evidence how many of the steel posts would have to be placed on the Zervos property, at least 6 would be placed in the driveway and an unknown number in their backyard. With respect to the driveway, it was quite clear to the Court that the sheds would pose an undue hardship on Mrs. Zervos, her family, as well as her tenants. As conceded by Philogene, the protective sheds would render the driveway completely unusable for the period of construction, which would be about 18 months.

More troubling to the Court was the fact that the driveway leads to the Zervos’ front door. The placement of the posts would pose an unnecessary danger to both the Mrs. Zervos and her husband, both of whom were advanced in age, in entering and exiting their home.

Although the record indicated that the front yard would be devoid of obstructions, this area consisted of some grass and, mostly, shrubbery — conditions that would make also make it extremely difficult and dangerous for two elderly people to navigate for any period of time.

Finally, the neighborhood in Astoria had very limited street parking. The planned sidewalk sheds would prevent  Mrs. Zervos and her husband from the daily use of their car, their sole method of transportation. Given that one of the their tenants was permitted use of the driveway, it would also prevent the tenant from using it to park his/her car and make it inordinately difficult to find parking nearby.

The proposed sidewalk sheds were not the only means of ensuring that the construction project could proceed safely and provide protection to the Zervos’ property and the people living or visiting their home. Both engineers agreed at the hearing that a cantilever system could be used as a substitute for the sidewalk sheds. A cantilever system could be attached to the building under construction. Politis testified that supports for a cantilever system could be incorporated into the metal rebar of the building presently under construction. He further testified that once an additional level was added to the building, the cantilever design could be constructed and would facilitate future repairs to the building and obviate the need to place obstructions on the Zervos property. A cantilever system was more expensive than the proposed sidewalk sheds.

Under RPAPL § 881, if an owner or lessee seeks to make repairs or improvements to real property and such repairs cannot be made without entering the premises of an adjoining owner, who refuses permission to enter to effectuate such repairs, a Court, pursuant to a special proceeding, may issue a license for entry:

Despite the mandatory language used in the statute, the section, permitting a “court to award a property owner a license to access an adjacent property for improvement or repair of the property[,]” nevertheless required the Court to make a discretionary determination. An  RPAPL 881 application is addressed to the sound discretion of the court. And the statute requires a court to balance the interests of the parties and to 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 the neighbor if the license is refused.

The factors which the court may consider in determining the petition include 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.

In this case, the Court took into account that the license proposed and requested by Ismael would render the Zervos’ driveway unusable for at least 18 months. Mr. Zervos and at least one tenant would be completely unable to park their cars in the driveway. Given that parking was at a premium in this area of Astoria, it would, essentially, deprive them of the use of their vehicles. Equally important, it would make it extremely difficult and unsafe for Mrs. Zervos, who was in her late 80s, and her husband, who recently turned 90, to navigate in and out of their house. The Court, therefore, found that the maze of metal posts proposed by Ismael presented a clear and present danger to people of such advanced age.

Equally important to the Court, Ismael, by its conduct, had already destroyed one of two important means of ingress and egress to and from the Zervos’ home. By approving the proposed sidewalk sheds the Court would, in effect, render it totally unsafe for Mrs. Zervos and her husband to go into and out of their home. In addition, the impact on the tenants, with respect to entering and exiting the home, was another factor considered by the Court. These factors all established that the Zervos’ and their tenants from the ability to live in and enjoy their home. It was quite obvious to the Court that the inconvenience to the Zervos’ and their tenants was not relatively slight.

The severe inconvenience to the Zervos and any other individuals who live at and visit the location could easily be avoided by the use of a cantilever system instead of the proposed sidewalk sheds. As acknowledged by Ismael’s expert, the stumbling block to the use of a cantilever system was a question of cost, not availability.

The Court noted that Ismael was investing in a multi-million dollar construction project and presumably could absorb the added cost of a cantilever system. This was especially so given that Ismael never disclosed during the hearing, in support of its burden of proving a hardship if the license was refused, what the added cost of a cantilever system would be. For that reason, the Court found that the added cost of a cantilever system did not present an undue hardship to Ismael, especially when compared to the hardships facing the Zervos family if the Court permitted the use of sidewalk sheds on their property. Accordingly, the Court concluded that there was an alternative means of performing the work without causing undue hardship to Ismael.

The Court recognized the public interest in the completion of the project. But the Court also found that the license fee offered by Ismael to the Zervos, $250.00 a month, was woefully inadequate financial compensation. Under the circumstances, where the Zervos were going to lose the use of their driveway and the ability to go into and out of their home safely, no amount of compensation was reasonable. This was especially so where the intrusion could be accomplished by a different type of protection device.

After weighing all the requisites factors required by law, the Court found that, on balance, Ismael failed to show the reasonableness and necessity of the trespass. It was  quite clear that Ismael failed to establish the reasonableness and necessity of the scaffolding device known as sidewalk sheds, which would need to be attached to the Zervos’ entire driveway and backyard.

Ismael’s application under RPAPL § 881 was denied and the petition was dismissed with leave to file a new petition. And the Court, in the exercise of its discretion, directed Ismael to pay the costs incurred by Mrs. Zervos in having to hire the services of an expert, Nicholas Politis, in order to defend herself.

In addition, the Court admonished Ismael that when a new petition is filed, it must submit plans to the  Zervos and provide specific details concerning the alternative protection, the length of disruption to the Zervos and comply with all other requirements mandated by law.

The Court noted that the letter from Ismael’s attorney to the Administrative Judge requesting that the case be reassigned to another judge and the various charges asserted in that letter did not affect the outcome of the case.

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