Opinion
Index No. 512241/2024 Mo. Seq. No. 1
08-02-2024
KERI J. CATANIA and PAUL CATANIA Petitioners, v. THOMAS OLSEN, GRACE OLSEN, VICKI FRANCO, and BRIAN FALANCO Respondents.
Unpublished Opinion
PRESENT: HON. HEELA D. CAPELL, J.S.C.
HON. HEELA D. CAPELL, J.S.C.
Recitation, as required by C PLR § 2219(a), of the papers considered in the review of petitioners' order to show cause for a license to enter respondents' property pursuant to RPAPL § 881, numbered as they appear on NYSCEF.
Papers
Order to Show Cause..................................................................................19
Opposing Affirmations and Exhibits Attached...................... 24-26, 28-30, 35- 37, 39-42
Keri J. Catania and Paul Catania ("Petitioners") move this court by order to show cause pursuant to RPAPL § 881 for an order granting Petitioners a license to enter the adjacent properties owned by Thomas Olsen and Grace Olsen ("Olsen Respondents") and Vicki Franco and Brian Falanco ("Falanco Respondents") (collectively, "Respondents"). The order to show cause is decided as follows:
Petitioners are the owners of 851113th Avenue, Brooklyn, NY 11228, Block 6339, Lot 6. Olsen Respondents are the owners of 1306 85th Street, Brooklyn NY, Block 6339, Lot 109. Falanco Respondents are the owners of 1304 85th Street, Brooklyn NY, Block 6339, Lot 8. All parties agree that Respondents' properties border Petitioners' property, such that their backyards abut the north-east side wall of Petitioners' home. Petitioners maintain that water is leaking through the exterior walls of their home and that they require access to Respondents' properties in order to effectuate necessary repairs. Petitioners commenced the instant special proceeding in order to obtain a license to inter alia access Respondents' properties and repair the leaks.
In the order to show cause Petitioners also request an order requiring Falanco Respondents to remove lattice decorations affixed to the north-east wall of Petitioners' home, and the Olsen Respondents to remove wooden decking within three feet of the property line and the fence surrounding their backyard. Respondents seek an order requiring Petitioners to name Respondents as additional insureds on an insurance policy of $ 1 million, indemnify Respondents against any damage to their properties, compensate Respondents for attorney's fees, and pay an additional license fee for Respondents' loss of enjoyment of their property during the license period. Respondents also contend that Petitioners have no basis under RPAPL § 881 to demand the removal of their fencing and decking.
RPAPL § 881 provides that the court may grant a "license so to enter" property for the purpose of making repairs. While Respondents do not agree with the necessity of the repairs, they consent to provide access to Petitioner for such repairs. NYSCEF Doc. No. 39, 25. Petitioners' request for a license to enter the Respondents' property is therefore conditionally granted pursuant to RPAPL § 881 as more fully provided below.
In addition to the license to enter Respondents' properties, Petitioners request that the court require the Olsen Respondents to remove the boundary fence around their property as well as the decking around their pool so that they can more easily access the backyard for repairs. Petitioners also seek an order requiring the Respondents to remove the decorative lattice work affixed to the northeast wall of Petitioners' property as the latticework directly interferes with their ability to effectuate repairs. RPAPL § 881 provides for a "license so to enter" rather than the removal of private property. Accordingly, the branch of the petition seeking an order for the removal of the latticework, fencing and decking is denied.
Respondents argue that the Petitioners must indemnify and add them as insureds, as well as restore and repair their properties to their pre-license condition before the license term has expired. Falanco Respondents specifically request general liability insurance with coverage in the amount of $1 million, NYSCEF Doc. No. 24. Petitioners have not opposed this request. The requirement to reasonably indemnify and insure the responding party as a condition of an RPAPL § 881 license to enter is well established (see Matter of Queens Coll. Special Projects Fund, Inc. v Newman, 154 A.D.3d 943 [2d Dept 2017]) [Respondent added as additional insured on relevant construction insurance policies]; MK Realty Holding, LLC v Scneider, 39 Misc.3d t 1209[A] [Sup Ct, Queens County 2013] [Petitioner required to procure insurance policy of at least $1 million, Respondent as additional insured]; Matter of N. 7-8 Invs. LLC v Newgarden, 43 Misc.3d 623 [Sup Ct, Kings County 2014][Petitioner required to procure liability insurance policy with $5 million coverage covering Respondent by name]).
The insurance and indemnification requirement ensures that Respondents will not suffer the burden of any loss or damage to their property, as "[e]quity requires that the owner compelled to grant access should not have to bear any costs resulting from the access" (Matter of Van Dorn Holdings, LLC v 152 W. 58th Owners Corp., 149 A.D.3d 518 [1st Dept 2017]). Similarly here, to ensure that Respondents will not suffer loss or damage as a result of the license, equity requires that they be adequately insured. Accordingly, Petitioners shall procure general liability insurance and name all Respondents as additional insureds, with $1 million coverage. Petitioners shall also indemnify the Respondents from and against all claims, losses, liabilities, damages, fines, actions judgments, or costs resulting from the use of their property or the Petitioners' access thereto. Additionally, Petitioners shall restore the Falanco and Olsen Respondents' properties to their pre-license condition.
Respondents also request a license fee as a condition of the court granting a license pursuant to RPAPL § 881. This fee serves to compensate Respondents for the loss of enjoyment of their property for the duration of the license, so that they do not suffer any losses resulting from the access. Respondents ask that the court award a license fee of $ 1,500 per week for the duration of the license. Petitioners did not oppose this request.
Courts generally award license fees as a condition of a license as discretionary compensation for the disruptiveness of the intrusion and the duration of the license (see Ponito Residence LLC v 12th St. Apt. Corp., 38 Misc.3d 604 [Sup Ct, NY County 2012] [Respondent awarded $1,500 per month for a sidewalk shed extending 20 feet into the respondent's property]; (Matter of Rosma Dev., LLC v South, 5 Misc.3d 1014[A], [Sup Ct, Kings County 2004][Respondents awarded a license fee of $2,500 per month for a bridge extending over their sidewalk]; Scneider, 39 Misc.3d 1209[A], [Respondents awarded a license fee of $1,000 for a 15-day license to maintain a scaffold on their property]; Newgarden, 43 Misc.3d 623, 634 [Respondents awarded $3,500 per month for a yearlong license where petitioners built a balcony six feet into the respondent's air space]).
Here, Petitioners seek a two week license to enter the Respondents' property. Given that the license may prohibit Respondents' from enjoying the use of their backyards, particularly during the summer, Respondents are awarded a license fee of $750.00 each for a two week license to enter the Respondents' properties.
The two-week license period is based on Petitioners' engineering report which states that the needed repairs will take seven to ten business days. NYSCEF Doc. No. 9.
The Respondents also argue that they are entitled to attorney's fees incurred in drafting, reviewing and revising the proposed license agreement, and in opposing this petition. Petitioners did not submit reply papers opposing the attorney's fees. RPAPL § 881 allows the court to grant reasonable attorney's fees to Respondents as a condition of the license, however, these fees are discretionary and are awarded based upon reasonableness (see Matter of N. 7-8 Invs. LLC v Newgarden, 43 Misc.3d 623, 631 [Sup Ct, Kings County 2014][Attorney's fees granted because proposed access was intrusive and carried high risk of property damage, requiring Respondent to retain an attorney to draft agreement]; (Ik End Ave Dev. LLC v Ngamwajasat, 79 Misc.3d 1231 [A] [Sup Ct, Kings County 2023] [Attorney's fees granted, Respondent provided itemized receipts to demonstrate reasonableness]; 145 E. 57th St. Assoc. LLC v 149 E. 57 Aldo LLC, 2021 NY Slip Op 32567[U] [Sup Ct, NY County 2021][Attorney's fees not granted because of mutually vexatious litigation]).
Respondents argue that they have been trying to settle the issues presented herein since October 2023 and that they were willing to provide access to Petitioners to effectuate necessary repairs to fix the leaks. However, Petitioners complicated the access issue by including demands that Respondents remove decking, fencing, and latticework, which is outside the purview of RPAPL § 881. Petitioners argue that the litigation has been mutually vexatious and that Respondents unreasonably withheld consent for them to enter their properties and make repairs. Based upon these contentions the request for attorneys fees is denied. However the denial is without prejudice to renewal upon further proof of entitlement to attorneys' fees, including receipts and affidavits, which Respondents failed to provide.
Accordingly, it is
ORDERED that Petitioner's order to show cause (in Seq. No. 1), pursuant to RPAPL § 881, for a license to enter on Respondents' properties is granted upon the following terms and conditions:
1. Petitioners are awarded a two week license to enter the backyards of 1306 85th Street, Brooklyn NY, and 1304 85th Street, Brooklyn NY in order to effectuate necessary repairs to their property.
2. One week prior to the commencement of the license, Petitioners shall:
a. procure general commercial liability insurance with coverage of at least $1 million, adding Olsen Respondents and Falanco Respondents by name, and list 1306 85th Street, Brooklyn NY and 1304 85th Street, Brooklyn NY as part of the covered work site. Petitioners shall maintain this insurance for the duration of this license;
b. provide Respondents with an indemnification holding them harmless to the fullest extent permitted by law for any liability, claims, damages or losses they may incur as a result of petitioner's work, whether or not caused by the negligence of Petitioners or its employees, agents, contractors or subcontractors; and
c. pay Falanco Respondents and Olsen respondents each a license fee of $750.00 for the two week license period.
3. The term of this license shall commence one week after Petitioners have provided to Respondents a copy of the insurance policy, license fee and signed indemnification described above.
It is further ORDERED that;
1. Respondents' requests for attorneys' fees are denied without prejudice to renewal.
2. Any remaining requests for relief are denied.
This constitutes the decision and order of the court.