Opinion
339/2019
05-29-2019
In the Matter of the Application of AIH GROUP, LLC, Petitioner, etc., v. C.J.F. & SONS ENTERPRISES, INC., Respondent.
For Petitioner: Rothkrug, Rothkrug & Spector, LLP, by Simon H. Rothkrug, Esq., 55 Watermill Lane, Great Neck, New York 11021 For Respondent: The Cassar Law Firm, P.C., by Christopher J. Cassar, Esq., 13 East Carver St., Huntington, New York 11743
For Petitioner: Rothkrug, Rothkrug & Spector, LLP, by Simon H. Rothkrug, Esq., 55 Watermill Lane, Great Neck, New York 11021
For Respondent: The Cassar Law Firm, P.C., by Christopher J. Cassar, Esq., 13 East Carver St., Huntington, New York 11743
Salvatore J. Modica, J.
The following papers numbered 1 to 15 were read on this Order to Show Cause by AIH Group, LLC ("AIH"), for an Order pursuant to New York Real Property Actions and Proceedings Law section 881, granting a license to enter upon the adjoining lands of C.J.F. & Sons Enterprises, Inc. ("CJF"), located at 97-15 Sutphin Boulevard, Jamaica, Queens County, New York.
Papers Numbered
Order to Show Cause - Affidavits - Exhibits 1 - 6
Answering Affidavits - Exhibits 7 - 12
Reply Affidavits 13-15
Jamaica, Queens County, New York, which offers express trains to both Manhattan and Long Island and which is accessible to several major highways, began attracting new hotel and other high-rise towers projects after the AirTrain station to the John F. Kennedy International Airport, New York City's only international airport, opened on Sutphin Boulevard in 2003. Fueling the renaissance and revitalization of Jamaica, New York Governor Andrew Cuomo, in 2016, awarded $ 10 million to this neighborhood for use toward initiatives that would kick-start economic development and long-awaited projects. With demolition and construction looming, the clash of competing interests, with resistance especially from existing landowners seeking to protect the status quo, inevitably leads to litigation.
Newark Liberty International Airport also services the New York metropolitan region, but is located outside the City and State of New York, being owned jointly by the cities of Elizabeth and Newark, New Jersey, and leased to and operated by the Port Authority of New York and New Jersey.
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This is a special proceeding, commenced by order to show cause, by one landowner ("petitioner") against an adjacent landowner ("respondent") for a license to enter the adjoining property to erect, maintain and deconstruct scaffolding, sidewalk bridges/sheds, roof protection and overhead protections for the purpose of ensuring the safety of the public and respondent's adjoining property during the construction of petitioner's property. Petitioner is in the process of building a new nine-story hotel on its property at 97-11 Sutphin Boulevard, Jamaica, Queens County, New York which is adjacent to respondent's existing building located at 97-15 Sutphin Boulevard.
Petitioner has duly-approved construction plans from the Department of Buildings of the City of New York, and has commenced with construction. Petitioner submits that it cannot continue with construction above its second story level pursuant to its approved plans and permits without the erection of the required scaffolding, sidewalk bridges/shed, overhead and roof protections, which requires respondent's consent to access respondent's property. To date, petitioner submits, respondent has not consented to the needed access despite repeated and reasonable requests by petitioner for same. Petitioner, therefore, brings the instant special proceeding for a license to enter the adjoining land for the purposes. Respondent opposes the application.
The Facts
The petition, upon the foregoing papers, is being made pursuant to section 881 of the New York Real Property Actions and Proceedings Law ("RPAPL"). Petitioner AIH is a New York limited liability company, and the fee owner of the premises located at 97-11 Sutphin Boulevard, Queens County, New York, being Block 10031, Lot 10 ("subject premises"). Respondent CJF is a New York corporation and the fee owner of the subject premises located at 97-15 Sutphin Boulevard, County of Queens, New York, being Block 10031, Lot 12 ("adjoining property"). The subject premises is located to the north of the adjoining property, and consists of a vacant lot, upon which construction of the 1st floor of the proposed new nine-story hotel building has been completed. Respondent's adjoining property is rented out and used by the tenant as an auto repair and auto towing yard.
On December 27, 2018, the NYC Department of Buildings approved the construction plans for the new hotel on the subject premises. As part of the proposed demolition and permit, petitioner retained professional engineers to prepare a site safety plan delineating the safety measures to be taken during demolition, all of which are designed to protect pedestrians, roofs, trees, and other property. In order to commence and complete the work pursuant to the duly approved plans and permit, petitioner must also protect respondent's property against any damage.
In support of the instant petition, petitioner submits the following: since February 2018, petitioner has repeatedly contacted respondent for the purpose of obtaining respondent's consent and cooperation with petitioner's desire to comply with the building code, and carry out the permitted work on the subject premises, and for respondent's written consent to petitioner's performance of the temporary protection measures being sought herein during the course of petitioner's construction. Petitioner submits that all such work is for the protection of the adjoining property and its occupants and guests. Indeed, a written "Neighbor License Agreement" was drafted and sent to respondent for its review and negotiation. Such efforts were met with silence and cancelled appointments to meet. As a result of the combination of the commencement of construction and the failure of respondent to discuss the minimum access required, it has become necessary to seek judicial intervention.
Petitioner also submitted the affidavit of Shi Ying Wu, the general contractor for the construction of the new nine-story building, which provides that under the New York City Building Code, petitioner is required to erect scaffolding, sidewalk bridges, overhead and rooftop protections in order to protect the adjacent premises, its guests and occupants and to protect the public during construction activities on petitioner's property; and that absent a license to enter the adjoining property, petitioner will be unable to continue with the permitted construction of the subject premises, and the completion of the entire project will be significantly delayed.
In opposition, respondent submits that it has a tenant that occupies the premises for an automotive repair garage business and that scaffolding in front of the adjoining premises will prevent the tenant from operating his business because cars will be unable to move in and out of the garage. Respondent also submits that the tenant has indicated that if scaffolding is erected in front of 97-15 Sutphin Boulevard, he will not be able to operate his business and, therefore, will not pay rent. This Court, even after submission of the motions, posed questions to both counsel, in an attempt to ascertain whether or not granting the instant application will harm the respondent and/or its tenants. The respondent, in opposition to the proposed hotel and the petition, has stated in response to this Court's questioning: "There is no structure that the AIH [petitioner] can install that will not impede the tenant." Respondent adds, without documentary substantiation, that it pays a monthly rent of $ 4,500.00 and has an annual gross income of $ 200,000.00.
Legal Discussion
RPAPL section 881 allows a property owner to petition for a license to enter the premises of an adjoining owner when 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 (see , Matter of Van Dorn Holdings, LLC v. 152 W. 58th Owners Corp. , 149 AD3d 518 [1st Dept 2017] ; Deutsche Bank Tr. v. 120 Greenwich Dev. Assocs. , 2005 WL 782810, 2005 NY Slip Op. 50467[U] [Sup. Ct. New York County] [Gische, J.] ), which must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted (see , Mindel v. Phoenix Owners Corp. , 210 AD2d 167 [1st Dept 1994] ; Matter of EXG 159W48 LLC v. Benyetta 148 LLC , 2017 WL 2998841, 2017 NY Slip Op. 31479[U] [Sup. Ct., New York County 2017] ; MK Realty Holding, LLC v. Scneider , 2013 WL 1482745, 2013 NY Slip Op. 50551[U] [Sup. Ct., Queens County 2013] ; Matter of Rosma Dev., LLC v. South , 2004 WL 2590558, 2004 NY Slip Op. 51369[U] [Sup.Ct., Kings County 2004] ).
The factors which a 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 ( Queens Coll. Special Projects Fund, Inc. v. Newman , 154 AD3d 943, 943-944 [2nd Dept. 2017], lv. to appeal denied , 31 NY3d 901 [2018] ; see , Chirichella v. BCBS Lorimer LLC , 2017 WL 3386257, 2017 NY Slip Op. 31665[U] [Sup.Ct., Kings County 2017] ; Deutsche Bank Tr. v. 120 Greenwich Dev. Assoc. , 2005 WL 782810, supra ; Matter of Rosma Dev., LLC v. South , 2004 WL 2590558, supra ; see also, Madison 96th Assocs., LLC v. 17 E. 96th Owners, Corp., 2018 WL 2173298, 2018 NY Slip Op. 30824(U) [Sup. Ct. New York County 2018] [Kornreich, J.] ).
After an assessment of the foregoing factors and balancing the respective interest of the two sides, this Court hereby grants the petition, pursuant to RPAPL section 881, for a license to temporarily access the respondent's property. The construction of a new building is an improvement of real property within the meaning of section 881 ( Matter of N. 7-8 Inv'rs, LLC v. Newgarden , 43 Misc 3d 623, 627 [Sup. Ct. Kings County 2014] ; Deutsche Bank Tr. v. 120 Greenwich Dev. Assocs. , 2005 WL 782810, supra ; Rosma Development LLC v. South , 2004 WL 2590558, supra ). It also has the potential to benefit greatly the surrounding businesses in this area.
The affidavits of the president of petitioner company and the general contractor for the construction project, demonstrate that the limited access and placement of structures would protect the respondent's property and would not unduly interfere with the use of the premises; that the access would be limited and is expected by the petitioner to last no more than 15 months; that the temporary structures to be erected would not be unduly invasive and are necessary in order for the petitioner to build the nine-story hotel while protecting the adjoining property as required by the New York City Building Code; that the public interest would be served by the development of the project; and that the respondent would be financially protected by the naming of the respondent as an additional insured on the relevant construction insurance policies and by the petitioner's promise to indemnify it for any loss (see , Queens Coll. Special Projects Fund, Inc. v. Newman , 154 AD3d at 944-45 ; Matter of EXG 159W48 LLC v. Benyetta 148 LLC , 2017 WL 2998841, supra ; MK Realty Holding, LLC v. Scneider , 2013 WL 1482745, supra ; Deutsche Bank Tr. v. 120 Greenwich Dev. Assocs. , 2005 WL 782810, supra ; Matter of Rosma Dev., LLC v. South , 2004 WL 2590558 , supra ).
The evidence, in short, supports the conclusion that the petitioner would suffer an undue hardship if the license pursuant to RPAPL section 881 were to be denied, whereas the respondent, in contrast, would experience only temporary and relatively minor inconvenience as a result of its issuance.
Where a license under RPAPL section 881 is granted, this Court may order the petitioner to fulfill additional terms and conditions ( Sunrise Jewish Center of Valley Stream v. Lipko , 61 Misc 2d 673 [Sup.Ct. Nassau County 1969] ). Conditions may include, among other things, posting a bond, obtaining insurance coverage, agreeing to indemnify the adjacent landowner, and/or paying for the use of the license ( 2225 46th St., LLC. v. Hahralampopoulos , 55 Misc 3d 621(Sup. Ct. Queens County 2017) (Dufficy, J.) ("Other conditions the court may impose include posting a bond, obtaining insurance coverage, agreeing to indemnify the adjacent landowner and paying for the use of the license."); Deutsche Bank Tr. v. 120 Greenwich Dev. Assocs. , 2005 WL 782810, supra ).
Although the determination of whether to award a license fee is discretionary, in that RPAPL section 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 section 881 often warrants the award of contemporaneous license fees. See , DDG Warren LLC v. Assouline Ritz 1, LLC , 138 AD3d 539, 539—540 (1st Dept. 2016).
The language in RPAPL section 881, "upon such terms as justice requires," has been interpreted rather broadly. In PB 151 Grand LLC v. 9 Crosby, LLC , 2018 WL 771792, 2018 NY Slip Op. 50163(U) (Sup. Ct. New York County 2018), Justice Kathryn E. Freed, in a well-reasoned decision, granted a license pursuant to RPAPL section 881, and citing the First Department's opinion in DDG Warren LLC v. Assouline Ritz 1, LLC , 138 AD3d 539, supra , also ordered the petitioner to pay all of the legal and engineering costs of the respondent. Such granting of the relief is well within the scope of RPAPL section 881 providing that a "license shall be granted by the court in an appropriate case upon such terms as justice requires ." Accord , Cucs Housing Dev. Fund Corp. IV v. Aymes , 2019 WL 934935, at *4, 2019 NY Slip. Op. 30450 (U) (Sup. Ct. New York County 2019) (Melissa Crane, J.) ("However, while RPAPL's § 881 may compel respondent to grant petitioners' access to his property, justice requires that respondent not be compelled to incur costs to protect his property from the access. Courts in the past have awarded licensing fees as a condition of grating a license pursuant to RPAPL § 881.").
In the present action, this Court previously ordered respondent's attorney the sum of $ 1,250.00 for making petitioner's lawyer wait in court for a few hours without showing up. Respondent's attorney paid the fee. Thus, notwithstanding the aforementioned sum of $ 1,250.00, this Court also orders petitioner to pay to respondent's counsel its entire legal fees sustained and to be sustained in respondent's legal representation by Mr. Cassar, and any engineering or other technical support services fee sustained by respondent. See , PB 151 Grand LLC v. 9 Crosby, LLC , 2018 WL 771792, **11, supra ; accord , Matter of the Application of N. 7-8 Investors, LLC v. Newgarden , 43 Misc 3d 623 (Sup. Ct. Kings County 2014) (Saitta, J.) (license would be granted to access adjoining property on terms that justice required, including payment of respondent's legal representation and the hiring of any architects).
In order to protect the rights of both the respondent and tenant, the Court further directs that the petitioner may not, during the course of either demolition or construction, prevent the respondent or its tenant from gaining access to 97-15 Sutphin Boulevard, Block 10031, Lot 12, or from preventing the respondent's tenant from using this property as an auto body shop. Any disruption to the landlord's business, or to the tenant's ability to conduct business may result in the revocation of this license.
In the final analysis, the aforementioned cases show that petitioner is entitled to a license, pursuant to RPAPL section 881, "so long as petitioner is willing to pay dearly for the same." PB 151 Grand LLC v. 9 Crosby, LLC , 2018 WL 771792 , at *9, supra.
Accordingly, it is hereby ORDERED that petitioner is granted a license to enter onto the roof and yards of respondent's property at 97-15 Sutphin Blvd., Jamaica, Queens County, New York, with laborers and materials so that petitioners may erect, maintain, and deconstruct scaffolding, sidewalk bridges/sheds, roof protection and overhead protections for the purpose of ensuring the safety of the public and respondent's adjoining property during the construction of petitioner's property, including the erection of temporary scaffolding and netting and/or such other protections as may be necessary and proper, in accordance with the New York City Building Code, to prevent damage to respondent's property and to the public, as may be necessary and pursuant to the plans and permits approved by the Department of Buildings of the City of New York, and it is further
ORDERED that the aforementioned granted license shall commence upon the entry of this Order, and upon petitioner's service of the order with notice of entry by Federal Express overnight mail to respondent, and shall continue for eighteen (18) months thereafter or sooner as the work is complete, and it is further
ORDERED that prior to the entry upon the respondent's property, petitioner shall obtain insurance naming respondent as an additional insured in the minimum amount of eight million dollars ($ 8,000,000.00), and such coverage shall remain until the work is completed, and it is further
ORDERED that prior to the entry upon the respondent's property, petitioner shall also obtain insurance naming the landlord of the respondent tenant in the amount of $ 500,000 for any interruption to the tenant's business, and such coverage shall remain until the work is completed, and it is further
ORDERED that, if there is any disruption to the landlord's business, or to the tenant's ability to conduct business, the tenant can make an application to this Court to either vacate or modify the granting of the authority conferred herein, and it is further
ORDERED that all work shall be performed only by licensed contractors, and it is further
ORDERED that petitioner shall be liable for any damage caused to respondent's roof and or building as a result of the access granted by this Order, and it is further
ORDERED that the scope of the work shall be limited to the work approved by the Department of Buildings of the City of New York and all work shall be performed pursuant to approved plans and permits issued by the Department of Buildings of the City of New York, and it is further
ORDERED that petitioner shall not block or obstruct any access to the premises. Neither respondent nor its tenants shall be dispossessed or deprived of the use of the premises for the duration of the work project or at any point, and it is further
ORDERED that, except for a sum previously paid by Mr. Cassar to Mr. Rothkrug of $ 1,250.00, the petitioner shall pay to the respondent for the entire reasonable legal cost of the representation by Mr. Cassar of the respondent that is incurred in connection with this proceeding, and for all reasonable engineering and other technical services, professionals, and consultants employed by respondent that is incurred in connection with this proceeding, and it is further
ORDERED that petitioner, furthermore, shall give an additional undertaking in the amount of $ 1,500,000 million dollars to secure payment by Petitioner of any damage to Respondent's property, to secure payment by Petitioner of the license, architectural and attorneys' fees, required by this order as a condition of the license, and to secure payment by Petitioner to indemnify Respondent for any liability, claims, damages or losses, including attorneys fees, that Respondent incurs as a result of Petitioner's work, and it is further
ORDERED that, if petitioner does not complete its work by the aforementioned time period, respondents shall make further application to this Court which extension will be granted only for good cause shown and with the potential increase of license fees to be decided upon the granting of such extension; and it is further
ORDERED that petitioner shall notify respondent in writing when its work has been completed and it has removed all protection from respondent's property; and it is further
ORDERED that petitioner is solely responsible for the installation, maintenance, and removal of the temporary protection; and it is further
ORDERED that any temporary construction of protection will not interfere or obstruct with the conduct of respondent's business, and it is further
ORDERED that petitioner shall be liable to respondent for any damages which it may suffer as a result of the granting of this license and all damaged property shall be repaired at the sole expense of petitioner; and it is further
ORDERED that petitioner shall indemnify and hold harmless respondent to the fullest extent permitted by law for any liability, claims, damages or losses, including attorneys' fees, respondent may incur as a result of petitioner's work, whether or not caused by the negligence of petitioner or its employees, agents, contractors or subcontractors; and it is further
ORDERED that petitioner shall not interfere with respondent's necessary access to its property and quality of life, and shall take the necessary steps, measures and precautions to prevent any damage to respondent's property; and it is further
ORDERED that petitioner shall immediately report, in writing, to respondent any damage to respondent's property cause by petitioner's work; and it is further
ORDERED that petitioner shall cure any violation placed against respondent's property by a governmental or administrative agency as a result of petitioner's work, and petitioner shall reimburse respondent for any fines or penalties imposed as a result of such violations; and it is further
ORDERED that at the completion of the term of the license, respondent's property within the license area shall be returned to its original condition, and all materials used in construction and any resultant debris shall be removed from the license area; and it is further
ORDERED that the amount of reasonable attorneys' fees and reasonable engineering fees incurred by respondent in connection with this proceeding, as well as the amount of any actual and provable damages owed by petitioner to respondent incurred directly as a result of the issuance of the license (if not covered by insurance), will be referred to a Referee, based on hourly rates, for determination based on the rules of evidence at the conclusion of the license period; and it is further
ORDERED that this Court will retain jurisdiction over this matter.
The foregoing constitutes the decision, order, and opinion of the Court.