By: Thomas S. Tripodianos Published: May 2012

Real Property Actions and Proceedings Law License Entitlement

Question. Is a Project Owner, under Real Property Actions and Proceedings Law §881, entitled to a license requiring Adjacent Owner to remove a five-foot section of a sidewalk construction bridge to permit Project Owner to erect a construction crane needed for its own project? Adjacent Owner refused Project Owner permission to take down the bridge, claiming it was doing "statutorily required" facade maintenance work. Adjacent Owner argued it might not be able to get New York City's permission to remove, then replace, the bridge. Project Owner contended the city already approved the removal of the bridge, producing proof of same.

Answer. Yes. The Project Owner is entitled to a license under §881 to remove Adjacent Owner's bridge.The Project Owner is however, liable for all damages suffered by Adjacent Owner's property in carrying out the license under §881.

Project Owner pursuant to Real Property Actions and Proceedings Law (RPAPL) §881, seeks a license requiring Adjacent Owner to remove a five-foot section of a sidewalk construction bridge erected in front of the Project Owner's property, to allow the Project Owner to erect a construction crane (crane) in furtherance of a construction project (Project) taking place on the Project Owner's property (Project Premises).

The Project Owner is the net lessee of the Project Property. The Project Owner is building a 29-story building on the Project Property to house a hotel (Project).

The Adjacent Owner owns the next door premises which houses a hotel (Adjacent Property), and which has, apparently, been undergoing facade restoration for some time, requiring the construction of a construction bridge (Bridge). The Bridge covers the front of the Adjacent Property, abuts the Project Premises, and extends five feet in front of the Project Premises. No part of the Bridge actually rests on the Project Premises.

The Project Owner has reached the point in its construction activities that it wishes to erect a crane. A pad for the crane has been built abutting the Adjacent Property. The Project Owner claims that it cannot erect the crane on the pad without removing the encroaching five-foot section of the Bridge. It claims that removing the Bridge's five-foot extension, erecting the crane, and putting up a new bridge would only inconvenience the Adjacent Owner's work by three days, noting that the Adjacent Owner's work has been proceeding only intermittently.

Although the parties have had some negotiations on the subject, the Adjacent Owner refuses to give the Project Owner permission to take the five-foot section of the Bridge down. The matter is time-sensitive, as the Project Owner's construction schedule depends on getting the crane installed expeditiously.

The Adjacent Owner claims that it is doing statutorily-required facade maintenance work. It claims that it cannot ignore its legal obligations to the Department of Buildings (DOB) by removing the safety features required for its own work. The Adjacent Owner insists that it must, by law, continue and complete its facade work, which will only be done when the DOB approves removal of the Bridge.

The Adjacent Owner also claims that the scaffolding rests on the Bridge, and that it would be required to remove all of the scaffolding on the side of its building which abuts the Project Premises if it removed the five-foot section. It argues that this would be an unreasonable and impracticable burden, calling for, essentially, the secession of its entire facade project until the Project next door was completed. The Adjacent Owner claims that it would have to recommence the permit process before it could return to its facade work, another intolerable burden. The Adjacent Owner claims that the Project Owner could easily relocate the position of its crane to the other side of the Project.

Pursuant to RPAPL 881:

[w]hen 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 pursuant to article four of the civil practice law and rules... Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

The court adopts a standard of reasonableness in judging whether the licensee can do all that is feasible to avoid injuries resulting from its entry on the adjoining owner's property.

While the Adjoining Owner claims that it will not be able to get DOB permission to remove, and then replace, the overhanging Bridge, the Project Owner, produces an amended "Site Safety and Logistics Plan" (SSP) presented to the DOB, which shows that the DOB has approved the removal of the overhang, the positioning of the crane, and the replacement of abutting bridges on the sites.

The Adjoining Owner's claim that the Bridge and scaffolding are intertwined, so one cannot be removed without the other, is at odds with the DOB's approval of the removal of the five-foot extension of the Bridge, and the erection of the crane. In any event, under RPAPL 881, the project Owner is liable for all damages suffered by the Adjoining Owner's property in carrying out the license, and the Project Owner has stated that it will pay for the removal of the overhang, and any complications which may arise therefrom. The Adjoining Owner's fears that it will get on the wrong side of the DOB by being asked to delay legally required facade repairs is belied by the DOB approval of the Project Owner's SSP, and its finding that the Adjacent Owner need not even supply a new SSP.

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