Opinion
10592 Index 161159/18
12-17-2019
In re HOUSE 93, LLC, Petitioner–Respondent–Appellant, v. Heidi LIPTON, Respondent–Appellant–Respondent.
The Law Office of Robert Moore, PLLC, New York (Robert Moore of counsel), for appellant-respondent. Valiotis & Novella PLLC, Long Island City (Anthony J. Novella and William J. Alesi of counsel), for respondent-appellant.
The Law Office of Robert Moore, PLLC, New York (Robert Moore of counsel), for appellant-respondent.
Valiotis & Novella PLLC, Long Island City (Anthony J. Novella and William J. Alesi of counsel), for respondent-appellant.
Gische, J.P., Mazzarelli, Singh, Moulton, JJ.
Order, Supreme Court, New York County (Debra A. James, J.), entered July 1, 2019, which, inter alia, granted petitioner a 60–day license to enter respondent's adjoining property under RPAPL 881 and granted respondent's request for legal fees, unanimously affirmed, without costs.
In weighing the interests of the parties, we find that, under these circumstances, issuing petitioner a 60–day license to access a small portion of respondent's property to commence immediately is reasonable and that the inconvenience respondent may face is slight compared to the hardship if the license is refused (see ( Matter of Board of Mgrs. of Artisan Lofts Condominium v. Moskowitz, 114 A.D.3d 491, 492, 979 N.Y.S.2d 811 [1st Dept. 2014] ). Contrary to respondent's argument, we do not find that the motion court's order is premature because petitioner did make a showing as to the reasonableness and necessity of the trespass referenced in the order (see id. ).
The court providently determined that the respondent be awarded the license fee award of $2,000 a month as a result of her temporary loss of enjoyment to the small portion of the rear yard petitioner will be accessing pursuant to the limited license (see e.g. Matter of Trinity NYC Hotel, LLC v. 11 Rector St., LLC, 2018 WL 5498773 [Sup. Ct., New York County 2018] ; Matter of North 7–8 Invs., LLC v. Newgarden, 43 Misc.3d 623, 636, 982 N.Y.S.2d 704 [Sup. Ct., Kings County 2014] ; Ponito Residence LLC v. 12th St. Apt. Corp., 38 Misc.3d 604, 612–613, 959 N.Y.S.2d 376 [Sup. Ct., N.Y. County 2012] ).
Contrary to the petitioner's argument, it is within the court's discretion to determine that attorney fees be resolved by a special referee (see Merrimack Mut. Fire Ins. Co. v. Moore, 91 A.D.2d 759, 761, 458 N.Y.S.2d 16 [3d Dept. 1982] ; see also Matter of North 7–8 Invs., 43 Misc.3d at 632, 982 N.Y.S.2d 704 ).
We have considered the parties' remaining contentions and find them unavailing.