Opinion
No. 109593/2011.
2012-04-23
10 EAST END AVENUE OWNERS, INC., Petitioner v. TWO EAST END AVENUE APARTMENT CORP., Respondent.
Belkin Burden Wenig/Goldman, New York, for the Plaintiff. Quinn McCabe, LLP, New York, for the Defendant.
Belkin Burden Wenig/Goldman, New York, for the Plaintiff. Quinn McCabe, LLP, New York, for the Defendant.
DORIS LING–COHAN, J.
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough”.
Abraham Lincoln, Notes for a Law Lecture, July 1850
Http:// showcase.netins.net/web/creative/lincoln/speeches/quotes .htm
BACKGROUND
Petitioner and respondent are neighbors—owners of adjacent buildings. Petitioner 10 East End Avenue Owners, Inc. is a cooperative corporation that owns a 21 story building, containing 174 apartments, located at 10 East End Avenue, New York, NY. Respondent Two East End Avenue Apartment Corporation is a cooperative corporation which owns the building adjoining petitioner's building, located at 2 East End Avenue, New York, NY.
Petitioner commenced this special proceeding seeking an order pursuant to Real Property Actions and Proceedings Law (“RPAPL”) § 881, for a license to enter upon respondent's property, which abuts petitioner's property, for a period of at least six (6) months, to install protection, so that necessary brick reconstruction and waterproofing of the south facade of petitioner's building may be performed (“the Facade Project”), in order to comply with obligations pursuant to New York City Local Law 11 of 1998, and to repair parts of the facade and prevent leaks to petitioner's building. Local Law 11 of 1998 requires that buildings greater than six (6) stories inspect the facade of the building every five years and to undertake necessary repair work on the facade if the investigation uncovers conditions that mandates such repairs. In 2009, petitioner retained an engineer to undertake the inspection of its building facades and it was determined that various facades of the building needed to be repaired and waterproofed. All necessary plans for the Facade Project were prepared by petitioner's engineers and approved by the New York City Department of Buildings.
In seeking the within requested relief, petitioner maintains that the improvements cannot be made without access to respondent's adjoining building and the air space above the building. Petitioner agrees to be liable to respondent for any actual damages occurring as a result of the entry pursuant to the license and to take all reasonable steps to safeguard and protect respondent's property in connection with the license. Petitioner has agreed to name respondent as an additional insured on petitioner's liability and property damage insurance policy and will provide respondent with evidence of such.
The court notes that, subsequent to the filing of the within proceeding, “on January 7, 2012 a massive fire ripped through one of the penthouse apartments located at [respondent's property] ... [and] destroyed that penthouse apartment” [Jan. 9, 2012 Letter from Petitioner's Counsel], which created concerns with respect to safety and access; such concerns have since been alleviated, after examination by the parties' engineers.
Additionally, over the course of the last several months, as urged by this court, the parties have in fact engaged in significant good faith efforts to resolve the issues raised by the within application, and by stipulation dated March 29, 2012, a settlement has been reached with respect to many of the issues between the parties, including the granting to petitioner of a limited license “to access [respondent's] [p]remises solely for the purpose of installing, inspecting, maintaining and, upon completion of the [p]roject, removing, the [t]emporary [p]rotections, pursuant to the terms and conditions set forth in [their] [a]greement”, for a period of 38 weeks. Exh. A, March 29, 2012 Stipulation.
The parties failed, however, to reach an agreement with respect to the following issues: (1) the design of the temporary construction protections; (2) the payment by petitioner of a license fee to respondent; (3) the payment by petitioner of respondent's engineering and attorneys' fees; and (4) the furnishing by petitioner of a temporary protection bond in the amount of $500,000, to secure petitioner's obligations under the license.
DISCUSSION
RPAPL § 881 was enacted in “recognition of the fact that property owners often build right up to the building line and in furtherance of the public interest in preventing the urban blight which results when such a building, for want of a license, cannot be repaired”. Sunrise Jewish Center of Valley Stream, Inc. v. Lipko, 61 Misc.2d 673, 675 (Supreme Court, Nassau County 1969) (citation omitted). Such statute provides as follows:
“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 his 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 to the adjoining owner or his lessee for actual damages occurring as a result of the entry”.
In support of the within petition, petitioner has satisfied the above criteria for the granting of a license to enter respondent's property to make the necessary repairs to petitioner's property, and in particular to install protections, so that the Fascade Project may be completed, in order to comply with New York City Local Law 11 of 1998. As indicated, after extensive negotitations, by stipulation dated March 29, 2012, respondent has in fact consented to the granting of a limited license to petitioner, which petitioner has agreed is acceptable.
As to the issues which remain in dispute and are submitted for resolution by this court, while respondent argues that it is entitled to a license fee, the payment of its attorneys' and engineering fees, a temporary protection bond in the amount of $500,000 and the installation of raised temporary construction protections, significantly, the statute does not provide for such relief and Respondent has provided no cases in which the relief it requested was granted in full.
Further, as to any payment of money to the licensor in exchange for the right to enter respondent's property, RPAPL § 881 merely requires that the licensee “be liable ... for actual damages [which occur], a result of the entry”. RPAPL § 881. The unreported case cited by respondent in support of its argument that it is entitled to a license fee upon the granting of a license, Rosma Develoment, LLC v. South, 5 Misc.3d 1014(A), 2004 WL 2590558 [Sup Court, Kings County 2004] ), is not binding on this court, as it is a trial level decision. Morever, the Rosma case is distinguishable, in that it involved a voluntary project by a developer erecting a new structure, unlike here where petitioner is mandated by City law to undertake the subject project. The court notes that there are very few reported cases which discuss RPAPL § 881, and none which have been cited or that this court could locate, which award the licensor a fee in exchange for the granting of a license to enter. See eg. Sunrise Jewish Center of Valley Stream, Inc. v. Lipko, 61 Misc.2d 673 (Sup Ct, Nassau County 1969); Chase Manhattan Bank v. Broadway Whitney Co., 57 Misc.2d 1091 (Sup Ct, Queens County 1968), affirmed24 N.Y.2d 927 (1969); see also Board of Managers of the Residence on Madison Condominium v. Burlington House Condominium 24 East 82nd St. Tenants Corp., Sup Ct, New York County December 17, 2010, Lobis, J., index No. 112754/2010. While RPAPL provides that the court may issue a license “upon such terms as justice requires”, this court does not construe such provision to warrant the imposition of a monetary license fee or award to the licensor, in exchange for access, given that, the statute speaks to monetary damages separately later in the statute, and limits such damages to “actual damage occurring as a result of the entry”. RPAPL § 881. The court further notes that, according to petitioner, “there is a history between the parties of informal cooperation without charging licensing fees or seeking damages for loss of use and enjoyment of their residents' property when required work is being performed”. [Petitioner's counsel's November 29, 2011 letter submission, in accordance with this court's November 29, 2011 order].
Furthermore, with respect to respondent's request for attorneys' fees, it is well settled that attorneys' fees may not be recovered unless authorized by agreement between the parties, statute or court rule. Matter of A.G. Ship Maintenance Corp. v. Lezak, 69 N.Y.2d 1, 5 (1986); Cier Indus. Co. v. Hessen, 136 A.D.2d 145, 148 (1st Dept 1988). Here, respondent has failed to rely upon any such agreement, statute or court rule, which would warrant the imposition of attorneys' fees in respondent's favor upon the granting of a license agreement.
As to respondent's request that petitioner post a $500,000 protection bond, it is noted that, according to petitioner, there is a $10,000,000 insurance policy in effect, which provides respondent with ample protection; this court agrees. Moreover, a bond is not mandated by RPAPL § 881.
Accordingly, it is
ORDERED and ADJUDGED that the within petition seeking a license agreement pursusant to RPAPL § 881 is granted, in accordance with the terms and conditions of the temporary license as agreed to in the parties' March 29, 2010 stipulation/agreement, which are incorporated into this judgment/order (see attached Exhibit A), and which shall be effective, upon service of a copy of this order/judgment; and it is further
ORDERED that upon completion of the repair work under the within license, petitioner shall: (1) notify respondent in writing that the work under the license has been completed; (2) return respondent's property to its original condition; and (3) all materials used in conjuction with the within project and any resultant debris shall be removed from respondent's property; and it is further
ORDERED that petitioner shall be liable to respondent for any damages which may occur, as a result of the granting of the within license, as per RPAPL § 881. At the expiration of the terms of the within license, respondent may move for the scheduling of a hearing, which shall be before a Special Referee in accordance with CPLR § 4317, to determine the amount of actual damages incurred by the respondent, if any, as a result of petitioner's entry upon respondent's property, pursuant to the within granted license; and it is further
ORDERED that petitioner shall serve a copy of this order/judgment upon respondent, within 20 days.
Should an extension of time be needed on such license, the parties are encouraged to cooperate with each other and work towards an amicable resolution, prior to seeking Court intervention. Should weather conditions become a factor in the above, the parties are again encouraged to cooperate with each other and work towards an amicable resolution, prior to seeking Court intervention. Any further application to the court for an extension shall include details and information as to the result of such conversations.