Opinion
Index 152145/2021
02-22-2022
144 BARROW STREET LLC Petitioner, v. THE BOARD OF MANAGERS OF 130 BARROW STREET CONDOMINIUM, Respondent.
Unpublished Opinion
PRESENT: HON. ALEXANDER TISCH Justice.
DECISION + ORDER ON MOTION
ALEXANDER TISCH, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 56, 57, 58, 59, 60 were read on this motion to/for ___ MISCELLANEOUS.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 39 were read on this motion to/for ___ DISMISS.
Upon the foregoing documents, petitioner moves for a license pursuant to Real Property Actions and Proceedings Law (RPAPL) § 881 and respondent moves to dismiss the petition for lack of jurisdiction.
Respondent argues that the petition must be dismissed for lack of jurisdiction because the notice of petition set the return date as April 5, 2021 but respondent was not served until April 29, 2021. However, if a notice of petition has an incorrect return date, or even fails to include one at all, it is a defect that may be disregarded pursuant to CPLR 2001 (see Matter of Kennedy v New York State Off, for People with Dev. Disabilities, 154 A.D.3d 1346, 1347 [4th Dept 2017]; Matter of Oneida Pub. Lib. Dist. v Town Bd. of Town of Verona, 153 A.D.3d 127, 129-130 [3d Dept 2017]). The decisions of the Appellate Divisions unequivocally hold that respondent's argument is entirely untenable and without merit. Here, respondent failed to articulate any prejudice and, indeed, the Court finds there was no prejudice to the respondent as the petition was adjourned a few times and the parties were able to submit papers in a timely fashion (see, e.g.. Young v City of New York. 164 A.D.3d 711, 713 [2d Dept 2018] ["Under these circumstances, given that no substantial right of the defendants was prejudiced, the Supreme Court should have disregarded the irregularity and determined the motion on the merits"]).
The Court notes that the motion itself is arguably frivolous as defined under 22 NYCRR 130-1.1 (c), which states in relevant part that "conduct is frivolous if... it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law."
As to the petition pursuant to RPAPL § 881, the relevant statute states 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 determining whether or not to grant a license pursuant to Real Property Actions and Proceedings Law § 881, courts generally apply a standard of reasonableness" (Matter of Board of Mgrs. of Artisan Lofts Condominium v Moskowitz, 114 A.D.3d 491, 492 [1st Dept 2014]). "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'" (id., quoting Chase Manhattan Bank (Natl. Assn.) v Broadway. Whitney Co.. 57 Misc.2d 1091, 1095 [Sup Ct, Queens County 1968], affd sub nom. Chase Manhattan Bank v Broadway, Whitney Co., 24N.Y.2d927[1969]).
The parties here have entered into five prior licensing agreements for petitioner's project. It is not seriously disputed that the license requested is necessary for petitioner to perform its work under the applicable laws. The nature of the inconvenience and interference with use and enjoyment of respondent's property because of the proposed work is generically described in the affidavit of respondent's president, Robert Michel (NYSCEF Doc No. 53).
"Although the determination of whether to award a license fee is discretionary, in that RPAPL 881 provides that a 'license shall be granted by the court in an appropriate case upon such terms as justice requires' (emphasis added), the grant of licenses pursuant to RPAPL 881 often warrants the award of contemporaneous license fees" (DDG Warren LLC v Assouline Ritz l.LLC, 138 A.D.3d 539, 539-40 [1st Dept 2016]). "After all, '[t]he respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it... Equity requires that the owner compelled to grant access should not have to bear any costs resulting from the access'" (id. at 540, quoting Matter of North 7-8 Invs., LLC v Newgarden, 43 Misc.3d 623, 628 [Sup Ct, Kings County 2014]). Here, the Court finds that the $2,000.00 per month licensing fee, which appears to be the amount negotiated under prior agreements, should continue for this license as well. Should the amount of the fee prove to be insufficient or otherwise need to be changed, either party may make an application to this Court to determine the appropriate amount; such application should be supported by adequate proof (see generally NYSCEF Doc No. 40, Kaufman aff at ¶ 38).
As for the professional fees, "[a] property owner compelled to grant a license should not be put in a position of either having to incur the costs of a design professional to ensure petitioner's work will not endanger his property, or having to grant access without being able to conduct a meaningful review of petitioner's plans" ("North 7-8 Invs., LLC, 43 Misc.3d at 630).
The parties' fifth and last agreement was an "Amended SOE [Support of Excavation] Agreement" dated March 19, 2021 (see NYSCEF Doc No. 40 at ¶ 2). It states in relevant part as follows:
Professional Fees. Project Owner agrees to reimburse Adjacent Owner's Professional Fees incurred in connection with the negotiation, drafting, and execution of this First Amendment in the amount of $17,500.00. Simultaneously with the execution of this Agreement, Project Owner has delivered to Adjacent Owner a check (or wire payment) in the amount of $17,500.00, receipt of which is acknowledged, subject to collection, which payment represents reimbursement of Adjacent Owner for its Professional Fees as agreed herein. No further fees shall be due and owing by Project Owner to Adjacent Owner in connection with the negotiation and execution of this Agreement. Notwithstanding the foregoing, Project Owner shall reimburse Adjacent Owner for any additional Professionals' Fees reasonably incurred by Adjacent Owner in connection with any modifications of the Additional SOE Drawings and/or this Agreement and/or if any issues arise under this Agreement that reasonably require Adjacent Owner to seek advice from its engineer and/or attorney (NYSCEF Doc No. 33, Amended SOE Agreement at ¶ 4).The parties do not dispute that the license sought in this petition is another amendment to the SOE agreement (see NYSCEF Doc No. 40 at ¶ 7). As such, the clear terms of the agreement between the parties do not prohibit respondent's entitlement to professional fees since March 19, 2021 (see Greenfield v Philles Records. Inc.. 98 N.Y.2d 562, 569 [2002] ["a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms"]). The Court additionally finds that respondent has not shown why the Court should deviate from the parties' unambiguous terms and order petitioner to pay fees incurred prior to that date (see id. at 569-70 ["if the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity"]).
Accordingly, the matter is referred to a Special Referee to ascertain the amount of reasonable attorneys' and experts' fees incurred since March of 2021 in connection with the petitioner's proposed work and the subject licensing agreement.
In conclusion, it is hereby ORDERED and ADJUDGED that the petition is granted in part to the extent that petitioner is granted license to access respondent's property, conditional upon the directives set forth below; and it is further
ORDERED that neither party is awarded attorneys' fees for bringing or defending the instant applications; and it is further
ORDERED that petitioner pay respondent a licensing fee of $2,000 per month for the duration of the license; and it is further
ORDERED that petitioner shall reimburse respondent for reasonable attorneys' fees incurred after March 19, 2021 in reviewing, drafting, and attempting to negotiate the subject license agreement; and it is further
ORDERED that petitioner shall reimburse respondent for reasonable architectural or engineering or design professional fees (together with attorneys' fees, hereinafter "professional fees") incurred after March 19, 2021 with respect to the subject license; and it is further
ORDERED that that portion of the respondent's counterclaims that seek reimbursement of professional fees is severed and the issue of the amount of reasonable professional fees that petitioner must reimburse to the respondent is referred to a Special Referee to hear and report; and it is further
ORDERED that counsel for the respondent shall, within 30 days from the date of this order, serve a copy of this order with notice of entry, together with a completed Information Sheet, upon the Special Referee Clerk in the General Clerk's Office (Room 119), who is directed to place this matter on the calendar of the Special Referee's Part for the earliest convenient date; and it is further
Available on the Court's website at www.nycourts.gov/supctmanh under the "References" link on the navigation bar.
ORDERED that such service upon the Special Referee Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases; and it is further
The Protocol is accessible at the "E-Filing" page on the court's website: www.nycourts.gov/supctmanh.
ORDERED that the parties may submit to the Court a proposed license to be so-ordered consistent with this decision and order.
Having resolved the disputed issues, the Court anticipates that the licensing agreement should be finalized forthwith without issue. If a dispute arises as to any other term, the parties may submit a proposed license and counter license to the Court for resolution.
This constitutes the decision, order, and judgment of the Court.