Opinion
Index No. 162035/2023 Motion Seq. No. 001
01-25-2024
ODYSSEY HOUSE, INC., OH 126TH STREET HOUSING DEVELOPMENT FUND CORPORATION, Petitioner, v. 50 EAST 126 STREET LLC, 50 EAST 126TH STREET REALTY LLC, JON BASMANOV Respondent.
Unpublished Opinion
MOTION DATE 12/12/2023
DECISION + ORDER ON MOTION
NICHOLAS W. MOYNE, J.
The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 17, 18 were read on this motion to/for MISCELLANEOUS.
Upon the foregoing documents, it is
Petitioners, Odyssey House, Inc. and OH 126th Street Housing Development Fund Corporation, commenced the instant special proceeding and filed the Verified Petition dated December 12, 2023, verified and sworn to that day by Durga Vallabhaneni, Senior Vice President and Chief Financial Officer of Petitioner Odyssey House, Inc., along with the Emergency Affirmation of Henry H. Korn, Esq., counsel for Petitioners, dated December 11, 2023, with Exhibits, and Memorandum of Law in Support of the Verified Petition dated December 11, 2023 in support of Petitioners' Order to Show Cause seeking relief under RPAPL §881 (the "OSC"); and
This Court (Justice Nocholas W. Moyne) issued an Order to Show Cause on December 15, 2023, directing service of the Order and underlying Petition papers on Respondents by Federal Express or overnight courier service on Respondents on or before December 21,2023; and further directing that Respondents appear in this Court on January 8, 2024, at 10:00a.m. (NYSCEF Document No. 17); and
On December 19, 2023, Respondents were served pursuant to the Order to Show Cause by Federal Express as follows - Rocco Vozza, Esq., 977 Sackett Avenue, Bronx, NY 10462-4019, Yakov Jon Basmanov, 4 Running Brook Lane, New City, NY 10956, and Yakov Jon Basmanov, PO Box 665, New City, NY 10956, and by email to roccovozza@yahoo.com and westchesterllc@aol.com.; and
On December 19, 2023, Petitioners filed as NYSCEF Document No. 18 the affidavit of service including proof of Federal Express tracking numbers for delivery to the above Respondents and at their addresses, and proof of delivery via email to the above Respondents email addresses; and
On January 8, 2024, at the return date of the Order to Show Cause before this Court, Respondents did not appear and/or oppose the Petitioners' application in this proceeding; and
Respondents failed to oppose the OSC, and/or appear in this proceeding, and/or answer the Verified Petition and/or request additional time to do so, and Respondents defaulted; and
Petitioners, the owner of the real property and building located at 52-54 East 126th Street, New York, NY I 0035 ("Project Property"), have requested that this Court issue the within Order; and
This Court has reviewed all of the submitted moving papers detailing facts related to the construction by Petitioners of 21 SRO units at the Project Property for permanent residential use by Odyssey residents, including 16 for residents in need of supportive services, which shall be provided on site, and 5 units for qualified low-income residents from the community, and that the Project has been approved by all relevant State and local governmental offices (the "Project"); and
The Court has considered the nature and extent of the requested access to Respondents' property, considered that Respondents and Petitioners executed a license agreement in August 2020, the terms of which included Petitioners' right to secure an extension of the license term, considered that following execution of the August 2020 license agreement, Petitioners completed . demolition of the existing building on the Project Property and completed support of excavation pursuant to plans filed with the DOB and provided to Respondents, and thereafter the Project was halted as Petitioners terminated the general contractor and subsequently replaced the general contractor to conduct the construction phase of the Project; and
The Court has considered that beginning in the summer of 2023, Petitioners advised Respondents, and continued to do so up until December 10, 2023 - the eve of filing the instant petition - that Petitioners had terminated the prior general contractor and replaced the general contractor to construct the Project and requested that Respondents enter into an amendment to the license agreement extending the license term so that construction of the State approved residential facility proceed with a projected duration of construction of 18 months from the commencement of construction, and the amendment, and correspondence with Respondents concerning its execution, is NYSCEF Document No. 6 to the Verified Petition; and
This Court has considered that Respondents communicated with Petitioners concerning terms of the extension of the license term and advised Petitioners they would execute the amendment to the license agreement, but later in the fall 2023 broke off all communication with Petitioners concerning the requested extension term; and
This Court has considered that the other adjoining properties to the Project Property have entered into agreements extending the term of the license as sought by Petitioners from Respondents; and
This Court has balanced the interests of the parties, the duration of the access, the protections to be installed on Respondents' property by Petitioners that are required, the lack of alternative means to perform the work and the public interest in completion of the supportive service and affordable housing Project that will be undertaken by Petitioners, and determined to . grant the license sought by Petitioners pursuant to Real Property Actions and Proceedings Law Section 881 on the terms and conditions specified herein, and it is therefore
Ordered, that:
(1) Petitioners and/or their construction team, have the immediate right and is granted a license to enter upon and access the property located at 50 East 126thStreet, New York, NY 10035, Block 1750, Lot 47 (the "Adjacent Property") in order to:
a. install, maintain, and remove, as applicable and necessary, certain safety protections only insofar as required by the New York City Building Code (the "Code"), including but not limited to temporary construction fence, vibration and crack monitoring, temporary overhead protections, including a sidewalk shed, and/or temporary roof protections (collectively, the "Protective Work"), in accordance with RPAPL § 881 and the Code;
b. install and place a trailer in front of the Adjacent Property to house the Petitioners' general contractor temporary office, as specified in the Penta Restoration Corp, letter dated November 3, 2023, delivered that day to Respondents;
(2) Petitioners shall cause to remove the Protective Work upon completion of Petitioners' construction, of the Project Property anticipated to be within approximately 18 months after installation of the Protective Work (the
"Tenn"), except (i) if additional time is reasonably necessary under the circumstances, Petitioners shall request a reasonable extension of the Term from Respondents, which Respondents shall not unreasonably deny, condition, or delay and failure of Respondents to timely respond shall constitute its consent, in the event that the term is extended, the petitioner shall pay to the respondent $1,000 per month for each month of the extended term, (ii) events constituting Force Majeure (including but not limited to the Covid-19 pandemic or government shutdowns), during which the Term shall be tolled until the Force Majeure event passes, and ail obligations of Petitioners hereunder shall be tolled, or (iii) delay is caused by Respondents' failure to provide prompt access or otherwise interferes;
(3) Petitioners shall indemnify and hold Respondents harmless from and against any property damage or bodily injury caused by the Protective Work unless caused in whole or in part by Respondents' negligent, reckless, or intentional acts or omissions;
(4) Petitioners and the general contractor shall provide DOB required insurance coverage for the Protective Work and name Respondents as additional insureds and shall deliver copies of same to Respondents;
(5) Respondents are enjoined from interfering with or failing to grant Petitioners access to perform the Protective Work and the installation, maintenance, and removal thereof in accordance with the law and Code;
(6) Respondents shall reasonably cooperate and provide prompt access to the Adjacent Property to enable Petitioners to install, maintain and remove the Protective Work;
(7) Respondents shall reimburse Petitioners for all reasonable legal fees incurred by Petitioners, and court costs, arising out of Respondents' failure to cooperate with Petitioners in connection with the negotiation and execution of an amendment to the August 2020 license agreement, extending the license term; and Petitioners shall submit to the Court evidence supporting this Court ordering such relief;
(8) This Court shall retain jurisdiction over this matter upon application by notice of either party.
This constitutes the decision and order of the court.