Court Adjudicates Disputed RPAPL 881 Application
East Edge BK, LLC moved by Order to Show Cause for an Order, pursuant to RPAPL § 881, granting East Edge access to the adjacent premises of Audrey Nedd, located at 78 East 53rd Street, Brooklyn, New York 11203, to install safety protections.
In support of the application, East Edge submitted an affidavit from its member, Samuel Eshaghoff, who stated that the entity was the record owner of the neighboring property, a vacant lot, located at 76 East 53rd Street, Brooklyn, New York 11203. Eshaghoff averred that East Edge’s plans had been filed and accepted by the NYC Department of Buildings to develop the property and make improvements. However, to proceed with the construction, East Edge and its general contractor, Boulder Builders, LLC, required access to the side and rear yards, and front curb of Nedd’s premises “to install, maintain, inspect and ultimately remove certain protections as required by the DOB to safeguard the [Nedd’s premises} from potential damage during completion of its work”. Eshaghoff also stated that such access was needed to Nedd’s roof to install and maintain protection, and to remove debris that is a by product of the work. He estimated that access would be needed for approximately a 1 year and 4 months.
Eshaghoff maintained that he had attempted to enter into a license agreement with Nedd since August 2020; yet, she has refused to have a discussion. East Edge offered to do the following: 1) pay up to $1,000 of Nedd’s attorney’s fees; 2) install a new fence along the shared property boundary at its own expense; 3) install security cameras in the direction of the Nedd Premises; 4) indemnify and hold Nedd harmless against any claims against her with respect to the work; and 5) name Nedd as an additional insured on its contractor’s insurance policy. Eshaghoff concluded that East Edge’s livelihood was being adversely impacted, as it could not proceed with the work on its premises. East Edge, by its attorney’s affirmation, cited NYC Building Code §§ 3309.1 and 3309.10, to stress that the protection of the premises was statutorily mandated.
In opposition, Nedd submitted an affirmation by her former counsel, Steve G. Williams, Esq.; her own affidavit as a pro se litigant once she relieved Williams; and another affirmation by her current counsel, Vincent Pallaci, Esq. In her initial affidavit filed by Williams, Nedd noted that the premises was a two-story house owned by her family, and currently occupied by tenants. She alleged that East Edge’s preliminary construction activities caused cracks to the side yard of her premises. Nedd also contended that the proposed agreement neither contained a provision for her to be compensated for her adversary’s access nor provided protection from dust/debris, the interference of light, and the obstruction of the foundation and sewer lines. As a result, Nedd requested $2,500 per month or a lump sum payment as compensation. Nedd’s affidavit was buttressed by Williams’ affirmation, annexed to which was a copy of East Edge’s proposed license agreement.
However, after Nedd relieved Williams, she filed a pro se affidavit, stating that her initial affidavit supported East Edge’s interest rather than her own. She also asserted that she wanted East Edge to waterproof and underpin her house’s foundation. Nedd further stressed that she did not want scaffolding and equipment on her property and did not want East Edge to have easement rights.
Nedd subsequently retained Pallaci, who was given the opportunity to submit opposition papers on her behalf. Pallaci asserted that more than 50% of Nedd’s roof, front yard, entire side yard, including several windows, as well as her rear yard would be affected by the access sought by East Edge. Thus, he requested that Nedd receive an access fee of $4,000/month. Moreover, he stressed that East Edge’s offer of commercial general liability insurance of $1,000,000 per occurrence and $2,000,000 in the aggregate was inadequate. Instead, Pallaci proposed that the insurance have limits of not less than $5,000,000 per occurrence; and include a requirement that East Edge fully defend and indemnify Nedd from property damage, injuries or death. He further argued that the license should require East Edge to repair any property damage; and that it post a bond of not less than $250,000 to cover potential future damage to Nedd’s premises. Lastly, he averred that it was customary for an adjacent homeowner to be reimbursed for its legal and engineering fees.
In rebuttal, East Edge objected to Pallaci’s contention that the typical license fee for New York City-area construction ranged from $3,000 month for minimal access to $7,500 for more extensive access. East Edge averred that it had been prejudiced by delays attributed to Nedd and had incurred significant costs.
East Edge maintained that the project would be minimally intrusive, as roof coverage would only occur during the framing of the fourth floor, which should be completed in about a week. Moreover, netting would temporarily cover one-half of Nedd’s front and side yards, and would protect her windows. East Edge would be able to walk underneath and retain access to Nedd’s yards. And East Edge’s counsel added that her client was ready to repair damages that resulted from the work; and that Nedd was encouraged to take photographs to document the condition of her property throughout the construction.
RPAPL section 881 allows a property owner to petition for a license to enter the premises of an adjoining owner if such entry is necessary for making improvements or repairs to the petitioner’s property and the adjoining owner has refused such access. A proceeding pursuant to RPAPL section 881 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 inconvenience to the adjoining owner if it is granted. When a license is granted by the court, a petitioner may be ordered to fulfill certain terms and conditions including obtaining insurance coverage, indemnifying the adjacent landowner and/or paying for the use of the license.
It was undisputed that East Edge’s plans were filed and accepted by the DOB; and that it was mandated to install certain protections to safeguard Nedd’s property, pursuant to New York City Building Code § 3309 which, in pertinent part, provides that “[a]djoining public and private property, including persons thereon, shall be’protected from damage and injury during construction or demolition work in accordance with the requirements of this section. Protection must be provided for footings, foundations, party walls, chimneys, skylights and roofs.”
After a review of the respective contentions, it was evident to the Court that both parties agreed to the following; 1) Nedd was entitled to attorney’s fees; 2) East Edge would indemnify and hold harmless Nedd against any claims asserted against it and its affiliates, in connection with its work; 3) East Edge would name Nedd as an additional insured on its contractor’s insurance policy; and 4) Safety protections must be installed to protect Nedd’s property. East Edge further agreed to install a new fence along their shared property boundary; and install security cameras in the direction of Nedd’s premises to monitor Nedd’s sidewalk. The Court noted that ,during the hearing, both parties’ engineers agreed to make mutually acceptable revisions to their respective engineering reports, and update drawings.
The Court, in its sound discretion, directed that the license to enter Nedd’s property included the following terms and conditions:
East Edge was directed to pay Nedd $2,000 in attorney’s fees as a condition of the license– because its demand to make use of her property required Nedd to hire an attorney to negotiate a license agreement.
East Edge was ordered to procure and maintains an insurance policy with limits of not less than $2,500,000 per occurrence, naming Nedd and listing 78 East 53rd Street, Brooklyn, New York 11203, as part of the covered work site—so that Nedd would be insured for any liability that she may incur for property damage, personal injury or wrongful death as a result of East Edge’swork.
East Edge was ordered to indemnify and hold harmless Nedd to the fullest extent permitted by law for any liability, claims, damages or losses that Nedd might incur as a result of East Edge’s work.
East Edge was responsible for the installation, maintenance and removal of all temporary protections. At the conclusion of the license, East Edge was directed to return Nedd’s property to its original condition, and all to remove all construction materials and debris from the work areas.
And East Edge was ordered to install a new fence along the shared property boundary at its own expense; to install security cameras in the direction of Nedd’s premises to monitor her sidewalk; and to notify Nedd in writing when it had completed the work under the license.
The license term was to commence fifteen (15) days after East Edge delivered a copy of the insurance policy to Nedd. And was to end twelve (12) months from the start of construction, subject to renewal upon application by East Edge.
Turning to the issue of a license fee, the Court noted that Nedd and Williams, her former counsel, requested $2,500/month. Nedd subsequently retained new counsel, who markedly increased her request to $4,000/month—without citing case law to support that specific request. Following a review of similar cases, and the application of the reasonableness standard, the Court found that a license fee of $2,500/month was appropriate.