[*1]
| 10 E. End Ave. Owners, Inc. v Two E. End Ave. Apt. Corp. |
| 2012 NY Slip Op 50712(U) [35 Misc 3d 1215(A)] |
| Decided on April 23, 2012 |
| Supreme Court, New York County |
| Ling-Cohan, J. |
| Published by New York State Law Reporting Bureau
pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, New York County
10 East End Avenue
Owners, Inc., Petitioner
against
Two East End Avenue Apartment Corp., Respondent.
|
109593/2011
ATTORNEY FOR THE PLAINTIFF
BELKIN BURDEN WENIG/GOLDMAN
270 MADISON AVENUE - 5TH FL.
NEW YORK, NEW YORK 10016
ATTORNEY FOR THE DEFENDANT
QUINN MCCABE, LLP
274 MADISON AVENUE - PENTHOUSE
NEW YORK, NEW YORK 10016
Doris Ling-Cohan, J.
"Discourage litigation. Persuade your neighbors to compromise whenever
you can. Point out to them how the nominal winner is often a real loser — in fees,
expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a
good man. There will still be business enough".
Abraham Lincoln, Notes for a Law Lecture, July 1850 [FN1]
BACKGROUND
Petitioner and
respondent are neighbors - owners of adjacent buildings. Petitioner 10 East End Avenue Owners,
Inc. is a cooperative corporation that owns a 21 story building, containing 174 apartments,
located at 10 East End Avenue, New York, NY. Respondent Two East End Avenue Apartment
Corporation is a [*2]cooperative corporation which owns the
building adjoining petitioner's building, located at 2 East End Avenue, New York, NY.
Petitioner commenced this special proceeding seeking an order pursuant to Real
Property Actions and Proceedings Law ("RPAPL") §881, for a license to enter upon
respondent's property, which abuts petitioner's property, for a period of at least six (6) months, to
install protection, so that necessary brick reconstruction and waterproofing of the south facade of
petitioner's building may be performed ("the Facade Project"), in order to comply with
obligations pursuant to New York City Local Law 11 of 1998, and to repair parts of the facade
and prevent leaks to petitioner's building. Local Law 11 of 1998 requires that buildings greater
than six (6) stories inspect the facade of the building every five years and to undertake necessary
repair work on the facade if the investigation uncovers conditions that mandates such repairs. In
2009, petitioner retained an engineer to undertake the inspection of its building facades and it
was determined that various facades of the building needed to be repaired and waterproofed. All
necessary plans for the Facade Project were prepared by petitioner's engineers and approved by
the New York City Department of Buildings.
In seeking the within requested relief, petitioner maintains that the improvements
cannot be made without access to respondent's adjoining building and the air space above the
building. Petitioner agrees to be liable to respondent for any actual damages occurring as a result
of the entry pursuant to the license and to take all reasonable steps to safeguard and protect
respondent's property in connection with the license. Petitioner has agreed to name respondent as
an additional insured on petitioner's liability and property damage insurance policy and will
provide respondent with evidence of such.
The court notes that, subsequent to the filing of the within proceeding, "on January 7,
2012 a massive fire ripped through one of the penthouse apartments located at [respondent's
property]...[and] destroyed that penthouse apartment" [Jan. 9, 2012 Letter from Petitioner's
Counsel], which created concerns with respect to safety and access; such concerns have since
been alleviated, after examination by the parties' engineers.
Additionally, over the course of the last several months, as urged by this court, the
parties have in fact engaged in significant good faith efforts to resolve the issues raised by the
within application, and by stipulation dated March 29, 2012, a settlement has been reached with
respect to many of the issues [*3]between the parties, including
the granting to petitioner of a limited license "to access [respondent's] [p]remises solely for the
purpose of installing, inspecting, maintaining and, upon completion of the [p]roject, removing,
the [t]emporary [p]rotections, pursuant to the terms and conditions set forth in [their]
[a]greement", for a period of 38 weeks. Exh. A, March 29, 2012 Stipulation.
The parties failed, however, to reach an agreement with respect to the following
issues: (1) the design of the temporary construction protections; (2) the payment by petitioner of
a license fee to respondent; (3) the payment by petitioner of respondent's engineering and
attorneys' fees; and (4) the furnishing by petitioner of a temporary protection bond in the amount
of $500,000, to secure petitioner's obligations under the license.
DISCUSSION
RPAPL
§881 was enacted in "recognition of the fact that property owners often build right up to the
building line and in furtherance of the public interest in preventing the urban blight which results
when such a building, for want of a license, cannot be repaired". Sunrise Jewish Center of
Valley Stream, Inc. v. Lipko, 61 Misc 2d 673, 675 (Supreme Court, Nassau County
1969)(citation omitted). Such statute provides as follows:
"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 pursuant to article four of the civil practice law and
rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the
date or dates on which entry is sought. 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".
In support of the within petition, petitioner has satisfied the above criteria for the
granting of a license to enter respondent's property to make the necessary repairs to petitioner's
property, and in particular to install protections, so that the Fascade Project may be completed, in
order to comply with New York City Local Law 11 of 1998. As indicated, after extensive
negotitations, by stipulation dated March 29, 2012, [*4]respondent has in fact consented to the granting of a limited license
to petitioner, which petitioner has agreed is acceptable.
As to the issues which remain in dispute and are submitted for resolution by this
court, while respondent argues that it is entitled to a license fee, the payment of its attorneys' and
engineering fees, a temporary protection bond in the amount of $500,000 and the installation of
raised temporary construction protections, significantly, the statute does not provide for such
relief and Respondent has provided no cases in which the relief it requested was granted in full.
Further, as to any payment of money to the licensor in exchange for the right to enter
respondent's property, RPAPL §881 merely requires that the licensee "be liable...for actual
damages [which occur], a result of the entry". RPAPL §881. The unreported case cited by
respondent in support of its argument that it is entitled to a license fee upon the granting of a
license, Rosma Develoment, LLC v. South, 5 Misc 3d 1014(A), 2004 WL 2590558 [Sup
Court, Kings County 2004]), is not binding on this court, as it is a trial level decision. Morever,
the Rosma case is distinguishable, in that it involved a voluntary project by a developer
erecting a new structure, unlike here where petitioner is mandated by City law to undertake the
subject project. The court notes that there are very few reported cases which discuss RPAPL
§881, and none which have been cited or that this court could locate, which award the
licensor a fee in exchange for the granting of a license to enter. See eg. Sunrise Jewish Center
of Valley Stream, Inc. v. Lipko, 61 Misc 2d 673 (Sup Ct, Nassau County 1969); Chase
Manhattan Bank v. Broadway Whitney Co., 57 Misc 2d 1091 (Sup Ct, Queens County
1968), affirmed 24 NY2d 927 (1969); see also Board of Managers of the Residence
on Madison Condominium v. Burlington House Condominium 24 East 82nd St. Tenants
Corp.,Sup Ct, New York County December 17, 2010, Lobis, J., index No. 112754/2010.
While RPAPL provides that the court may issue a license "upon such terms as justice requires",
this court does not construe such provision to warrant the imposition of a monetary license fee or
award to the licensor, in exchange for access, given that, the statute speaks to monetary damages
separately later in the statute, and limits such damages to "actual damage occurring as a result of
the entry". RPAPL §881. The court further notes that, according to petitioner, "there is a
history between the parties of informal cooperation without charging licensing fees or seeking
damages for loss of use and enjoyment of their residents' property when required work is being
performed". [Petitioner's counsel's November 29, 2011 letter submission, in accordance with this
court's November 29, 2011 order].
[*5]
Furthermore, with respect to respondent's request
for attorneys' fees, it is well settled that attorneys' fees may not be recovered unless authorized by
agreement between the parties, statute or court rule. Matter of A.G. Ship Maintenance Corp.
v. Lezak, 69 NY2d 1, 5 (1986); Cier Indus. Co. v. Hessen, 136 AD2d 145, 148 (1st
Dept 1988). Here, respondent has failed to rely upon any such agreement, statute or court rule,
which would warrant the imposition of attorneys' fees in respondent's favor upon the granting of
a license agreement.
As to respondent's request that petitioner post a $500,000 protection bond, it is noted
that, according to petitioner, there is a $10,000,000 insurance policy in effect, which provides
respondent with ample protection; this court agrees. Moreover, a bond is not mandated by
RPAPL §881.
Accordingly, it is
ORDERED and ADJUDGED that the within petition seeking a license agreement pursusant
to RPAPL §881 is granted, in accordance with the terms and conditions of the temporary
license as agreed to in the parties' March 29, 2010 stipulation/agreement, which are incorporated
into this judgment/order (see attached Exhibit A), and which shall be effective, upon service of a
copy of this order/judgment; and it is further
ORDERED that upon completion of the repair work under the within license, petitioner
shall: (1) notify respondent in writing that the work under the license has been completed; (2)
return respondent's property to its original condition; and (3) all materials used in conjuction with
the within project and any resultant debris shall be removed from respondent's property; and it is
further
ORDERED that petitioner shall be liable to respondent for any damages which may occur, as
a result of the granting of the within license, as per RPAPL §881. At the expiration of the
terms of the within license, respondent may move for the scheduling of a hearing, which shall be
before a Special Referee in accordance with CPLR §4317,to determine the amount of actual
damages incurred by the respondent, if any, as a result of petitioner's entry upon respondent's
property, pursuant to the within granted license; and it is further
ORDERED that petitioner shall serve a copy of this order/judgment upon respondent, within
20 days.
Should an extension of time be needed on such license, the parties are encouraged to
cooperate with each other and work towards an amicable resolution, prior to seeking Court
intervention. Should weather conditions become a factor in the [*6]above, the parties are again encouraged to cooperate with each
other and work towards an amicable resolution, prior to seeking Court intervention. Any further
application to the court for an extension shall include details and information as to the result of
such conversations.
Dated: April 23, 2012
Doris Ling-Cohan, JSC
Footnotes
Footnote 1:
Http://showcase.netins.net/web/creative/lincoln/speeches/quotes.htm