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ALBPC Stops Development Project for 22 Months Allowing Seller to Sell Next Door Development

By Adam Leitman Bailey


When the owner of a townhouse (the “Developer”) filed an action against the adjacent home owners (the “Neighbors”) seeking a license to enter and install protective measures under Real Property Actions and Proceedings Law (“RPAPL”) Section 881 so that the Developer could proceed with its proposed demolition and construction project, Adam Leitman Bailey, P.C. demanded that the Court order an evidentiary hearing to determine the nature and scope of the required protective measures due to the dangers and risks presented by the demolition and construction, and the inadequacy of the protective measures proposed by the Developer.

By way of background, one and half years ago, Adam Leitman Bailey, P.C. had successfully obtained an injunction preventing the Developer from performing any demolition and/or construction activities on its townhouse for over a six month period by arguing before the Court that the New York City Landmarks Preservation Commission had violated the Neighbors’ right to due process, and had acted outside of its jurisdictional authority when it approved the adjacent construction. This injunction remained in effect for six months while the parties worked out an agreement to resolve these issues.

Approximately eight months after this resolution between the parties, the Developer commenced the RPAPL Section 881 action against the Neighbors seeking a temporary license for access. Adam Leitman Bailey, P.C. opposed the special proceeding on behalf of the Neighbors, arguing that the proposed construction presented significant dangers and risks to the structural stability of the Neighbors’ historic home, and that the protective measures proposed by the Developer were entirely inadequate.

Collaborating with architects and geotechnical engineers, the attorneys at Adam Leitman Bailey, P.C. argued before the Court that the Developer had made numerous errors in its construction plans and drawings. First, the groundwater level readings around the property were inaccurate. Second, the Developer had conflicting information regarding whether or not its proposed construction would require that the Developer trespass underneath the foundation of the Neighbors’ home. Third, the Developer’s plans were unclear as to whether or not the foundation of Neighbors’ building would be compromised as a result of such trespass as well as the added excess weight to the structural slab. Fourth, the Developer had inconsistencies regarding the location of the shared party wall between the buildings in its proposed drawings.

In addition, the attorneys at Adam Leitman Bailey, P.C. also advised the Court that the reports produced by the Developer had conflicting assessments regarding the type of the soil the party wall was founded on. Such conflicting reports were particularly alarming given that different soil types could have a dramatic impact on the movement of the Neighbors’ historic home.

Furthermore, the attorneys argued that the Developer had failed to comply with the requirements specified under the New York City Department of Buildings Code for a stop work limit for movement of historic structures. In fact, the Developer had not established any thresholds whatsoever in its plans.

Adam Leitman Bailey, P.C. highlighted to the Court that the Developer had also refused its repeated demands to add additional monitoring devices in order to adequately monitor the vibrations of the historic building caused by the demolition and construction.

Based on the totality of these critical concerns, the attorneys at Adam Leitman Bailey, P.C. argued that the protective measures proposed by the Developer were entirely insufficient to properly protect the Neighbors’ home during the demolition and construction, and that an evidentiary hearing before the Court on the issue of what protective measures were necessary was mandated given the Developer’s cavalier attitude to ensuring the protection of the Neighbors’ home.

As a result of these efforts, Adam Leitman Bailey, P.C. was able to halt the adjacent construction for twenty-two months in order to permit its client time to sell the townhouse.

The decision of whether or not an evidentiary hearing will be held is currently pending before the Court.

Adam Leitman Bailey, Jeffrey R. Metz, and Joanna C. Peck represented the owners of the adjacent townhouse in the case.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS