Opinion
Index No. 537820/2023 Motion Seq. No. 1 Cal. No. 2
01-30-2024
ONE CENTRAL AVE LLC Petitioner, v. HECTOR AVILES, Respondent. For An Order Pursuant to RPAPL § 881
Unpublished Opinion
At an IAS, Part 13,of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse thereof located at 320 Jay Street, Brooklyn, New York on the 31st day of January 2024.
DECISION & ORDER
HON. RUPERT V. BARRY, A.J.S.C.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of Petitioner's application for an order access order: NYSCEF Doc. Nos.: 1 - 12.
Petitioner One Central Ave LLC initiated this proceeding by an order to show cause seeking an order, pursuant to Real Property Actions and Proceedings Law ("RPAPL") § 881, granting Petitioner a license to enter in and onto the property of Respondent Hector Aviles located at 119 Himrod Street, Brooklyn, New York 11221 (hereafter "the Premises").
Petitioner seeks temporary access to the Premises to enable Petitioner to perform certain demolition, excavation and construction work on Petitioner's property located at 250 Central Avenue, Brooklyn, New York (hereafter "Petitioner's Property"), which is immediately adjacent to the Premises, and to provide required site safety protections to the Premises.
Upon the reading the papers filed in regard to Petitioner's order to show cause and after oral arguments, it is
ORDERED, that Petitioner and its agents, contractors and employees (collectively "Petitioner Related Parties") are hereby granted a license pursuant to RPAPL § 881 to access and enter upon the Premises located at 119 Himrod Street, Brooklyn, New York to perform a preconstruction survey of the Premises and to install and maintain protective measures designed to protect the Premises and the public from the effects of demolition and construction on Petitioner's Property, as follows:
a. To perform a detailed visual inspection and survey of the Premises to document its condition prior to commencement of construction on Petitioner's Property.
b. To erect and install, if necessary, and to maintain vibration monitoring devices and protective materials made up of rigid foam and plywood sheeting on the rooftop of the Premises.
c. To install and maintain a temporary construction fence and construction bridge and pipe scaffolding in the rear yard of the Premises, as described in the Site Safety Logistics Plan dated August 17, 2023, annexed as Exhibit B to the Lee Affidavit, in order to provide security and protection of the Premises.
d. To install, if necessary or required, weatherproofing protection on portions of any foundation wall of the Premises exposed during excavation operations on Petitioner's Property in order to protect the Premises from water infiltration, and
e. To periodically monitor the effects, if any, upon the Premises from the performance of work on Petitioner's Property. It is further
ORDERED, that the temporary construction fence, construction bridge and pipe scaffolding, vibration monitoring devices, and rooftop protections shall be installed on or before April 30, 2024, and shall be removed as follows:
a. The construction fence, construction bridge and pipe scaffolding shall be removed from the rear yard of the Premises not later than the date that is ten (10) weeks from the first business day following the date installation began; and
b. The vibration monitoring devices and rooftop protective materials shall be removed not later than the date that is ten (10) months from the first business day following the date installation began. It is further
ORDERED, that Petitioner shall pay to Respondent a license fee for the forgoing access as follows:
1. The sum of $400 per week beginning on the date that the construction fence and construction bridge and pipe scaffolding are first installed in the rear yard of the Premises and ending on the date that the construction fence and construction bridge and pipe scaffolding are removed from the rear yard of the Premises and the Premises restored to substantially the condition they were in prior to the installation of the protections.
2. The sum of $500 per month beginning on the date that the foam and plywood sheeting are first installed on the rooftop of the Premises and ending on the date that the rooftop protections are removed, and the Premises restored to substantially the condition they were in prior to the installation of the protections.and it is further
ORDERED, that any Petitioner Related Parties entering upon the Premises shall maintain in full force and effect the following insurance: (a) Commercial General Liability Insurance with limits of liability of no less than $1,000,000 per occurrence, $2,000,000 per project general aggregate, insuring against liability for bodily and damage to tangible property; and (b) Worker's Compensation Insurance for all employees who may come within the protection of the worker's compensation law and, where applicable, employer's general liability insurance for employees not so protected.
This constitutes the decision and order of this Court.