Summary
In MK Realty Holding, LLC, the court awarded a $1,000 fee as a condition of a 15–day license to erect a scaffold on an adjoining property.
Summary of this case from 2225 46th St., LLC. v. Giannoula HahralampopoulosOpinion
No. 1180/12.
2013-04-11
MK REALTY HOLDING, LLC, Plaintiff, v. Mary SCNEIDER, Defendant.
Attorney for Petitioner is Jimmy C. Solomos, Esq. Attorney for Respondent is Law Offices of Michael P. Giampilis, P .C.
Attorney for Petitioner is Jimmy C. Solomos, Esq. Attorney for Respondent is Law Offices of Michael P. Giampilis, P .C.
AUGUSTUS C. AGATE, J.
The following papers numbered 1 to 7 read on this application by the petitioner for a judgment granting petitioner a license for access to respondent's property.
PAPERS
NUMBERED
Amended Notice of Petition—Petition—Exhibits.. 1–3
Affirmation in Opposition—Exhibits ............... 4–6
Replying Affirmation .................... 7
Upon the foregoing papers, it is ordered and adjudged that this application by the petitioner is decided as follows:
Petitioner commenced this Special Proceeding to obtain access to respondent's property in order to repair the westerly wall of its building, which according to petitioner, leaks when it rains. Petitioner states that its wall is approximately two feet from respondent's wall. This court, in an order dated June 12, 2012, denied petitioner's application without prejudice to renewal. The court directed that any renewal contain an affidavit from a contractor setting forth the details of the work to be done, the necessity for such work and how long it will take for the work to be completed.
Petitioner now brings this amended application, which includes an affidavit from Mojahed Bhutta, a secretary of New Regal Construction Inc., the licensed construction contractor for the petitioner. In the affidavit, Mr. Bhutta avers that the repairs to the westerly wall of petitioner's property are needed because the building's wall leaks when it rains. He explains that the repairs require the erection of scaffolding to permit his workers access to the entire surface of the wall to stucco it and reinforce it. Mr. Bhutta further avers that in order to protect respondent's property, the workers will cover the wall and the ground facing the petitioner's property with tarps. Mr. Bhutta states that the work can be commenced immediately, and the repairs will require a maximum of 15 weekdays, and the total amount of workers will be three to five. Respondent opposes the application.
“When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter ...” (RPAPL § 881.) This statute is to be read narrowly as it stands in derogation of the common law which protects landowners from trespass. (Pav–Lak Indus., Inc. v. Wilshire Ltd., 2009 WL 5243692 [Sup Ct, N.Y. County 2009].) In determining whether to grant petitioner a license pursuant to RPAPL 881, the court must apply a standard of reasonableness. (Mindel v. Phoenix Owners Corp., 210 A.D.2d 167, 167 [1st Dept 1994].) The court must balance the competing interests of the parties and should issue a license when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owners is outweighed by the hardship of their neighbors if the license is refused. (Chase Manhattan Bank (Natl.Assn.) v. Broadway, Whitney Co., 57 Misc.2d 1091, 1095 [Sup Ct, Queens County 1968], affd24 N.Y.2d 927 [1969] .)
In the matter at hand, after weighing the interests of the adjoining property owners, the court finds that the petitioner is entitled to access respondent's property pursuant to RPAPL § 881. The affidavit of the licensed contractor sufficiently explains the necessity of the work and describes the work to be done. In addition, petitioner states that it will obtain adequate insurance and name respondent as an additional insured. Petitioner also states that it will compensate respondent $1,000.00 for allowing the petitioner to conduct the subject repairs. Finally, the court notes that RPAPL § 881 affords the respondent adequate legal rights and remedies in that it subjects the licensee to full liability for damages for “actual damages occurring as a result of the entry.” (RPAPL § 881; Sunrise Jewish Ctr. of Valley Stream, Inc. v. Lipko, 61 Misc.2d 673, 676 [Sup Ct, Nassau County 1969]; Chase Manhattan Bank v. Broadway, Whitney Co., 57 Misc.2d at 1095–1096.)
Accordingly, this application by the petitioner for a judgment granting petitioner a license for access to respondent's property is granted, and petitioner's contractor, New Regal Construction Inc., is granted a license to enter respondent's property, located at 30–54 38th Street, Astoria, New York 11103, for the purposes of making repairs to the westerly wall of petitioner's property, to wit, to stucco and reinforce it, for no more than 15 consecutive weekdays, beginning on the 10th day after service of a copy of this order and judgment upon the respondent upon the following terms and conditions:
(i) Petitioner is directed to pay respondent the sum of $1,000.00 prior to commencement of the work;
(ii) petitioner shall not unreasonably interfere with respondent's necessary access to her property and shall take the necessary steps, measures, and precautions to prevent and avoid any damage to respondent's property;
(iii) petitioner shall procure and maintain a policy of insurance covering liability and property damage, or equivalent bond with a corporate surety, in an amount of not less
than $1 million naming the respondent as an additional insured during the period of this license;
(iv) petitioner shall be held liable to respondent for any damages which she may suffer as a result of the granting of this license and all damaged property shall be repaired at the sole
expense of petitioner;
(v)petitioner shall notify respondent in writing when it
has completed the work under the license;
(vi) upon the completion of the term of the license, respondent's property within such license area shall be returned to its original condition, and all materials used in construction and any resultant debris shall be removed from the license area;
(vii) any such other terms and conditions that petitioner and respondent may agree to in writing.
A copy of this order and judgment is being faxed on this date to both sides.