Summary
In Tory Burch, the First Department reversed the lower court's grant of a license pursuant to § 881 because, "at the time of the petition, none of the items sought had been memorialized in specific plans filed and approved by the Department of Buildings."
Summary of this case from ZDJ W 37, LLC v. 437 West 36th Street LLCOpinion
01-12-2017
In re TORY BURCH LLC, Petitioner–Respondent, v. Herbert MOSKOWITZ doing business as Manhattan Realty Company, Respondent–Appellant.
Peluso & Touger, LLP, New York (Robert Reed Moore, Jr. of counsel), for appellant. Wasserman Grubin & Rogers, L.L.P., New York (Richard Wasserman of counsel), for respondent.
Peluso & Touger, LLP, New York (Robert Reed Moore, Jr. of counsel), for appellant.
Wasserman Grubin & Rogers, L.L.P., New York (Richard Wasserman of counsel), for respondent.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered July 11, 2016, which granted petitioner a license to enter respondent's adjoining property in order to take steps to protect respondent's property during renovations to the facade and roof of petitioner's building, unanimously reversed, on the law, without costs, the petition denied, and the proceeding pursuant to RPAPL 881, dismissed.
The petitioner failed to make a showing as to the reasonableness and necessity of the trespass referenced in the order where, at the time of its petition, none of the items sought had been memorialized in specific plans filed and approved by the Department of Buildings, and the project was under a stop work order (see Mindel v. Phoenix Owners Corp., 210 A.D.2d 167, 620 N.Y.S.2d 359 [1st Dept.1994], lv. denied 85 N.Y.2d 811, 631 N.Y.S.2d 287, 655 N.E.2d 400 [1995] ; see also Matter of Board of Mgrs. of Artisan Lofts Condominium v. Moskowitz, 114 A.D.3d 491, 979 N.Y.S.2d 811 [1st Dept.2014] ). Further, the court erred in including those items in the license that would be permanent encroachments on respondent's buildings (see Broadway Enters., Inc. v. Lum, 16 A.D.3d 413, 790 N.Y.S.2d 402 [2d Dept.2005] ). The parties' disagreement over their respective rights, if any, arising from a party wall in use prior to petitioner's demolition of the building formerly at 151 Mercer, is not relevant upon this limited petition.
We have considered the parties' remaining contentions and find them unavailing.
SWEENY, J.P., RENWICK, MAZZARELLI, MANZANET–DANIELS, FEINMAN, JJ., concur.