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Real Property Actions And Proceedings Law (“RPAPL”) § 881 Landmark Decision That Will Change The Rights Of Developers And Construction Law In New York City

By Joanna C. Peck


New York City Court of Appeals

In a landmark decision that will change the rights of developers and construction law in New York City, on December 6, 2019, the Honorable Justice Eileen Rakower ruled that the developer (the “Developer”) of a building was entitled to install a permanent encroachment onto the adjacent building in order to permit the Developer to proceed with the demolition of an existing building.

In Tompkins 183 LLC v. Marsha Frankel, after several months of good faith efforts to negotiate a license agreement with Frankel, the Developer commenced a special proceeding pursuant to Real Property Actions and Proceedings Law (“RPAPL”) § 881 against the adjacent owner of a multi-family residential building to gain licensed access to limited portions of her building during the demolition phase of construction in order to install both temporary protections required by the New York City Department of Buildings (“DOB”), and the New York Building Code (the “Code”), and party wall tie-backs of the shared party wall. The party wall tie-backs would cross beyond the plane of the party wall, and into the joists of Frankel’s building, and therefore constituted a permanent encroachment onto the adjacent building.

Frankel opposed the motion, arguing that the party wall tie-backs were a permanent encroachment, and therefore impermissible under RPAPL § 881.

An extensive hearing was held before Justice Rakower in which the parties’ experts testified as to the life and safety risks of the proposed protection measures. Specifically, the Developer’s experts testified that the installation of the party wall tie-backs was necessary and required in order to stabilize the party wall during the demolition of the existing building, and that such tie-backs were for the sole benefit of the adjacent owner and her building. Such experts further testified that the installation of the party wall tie-backs would be performed entirely from the Developer’s site, and thereby have a nominal, if any, interference with Frankel’s use and enjoyment of her building, and would minimally encroach into the adjacent building.

In addition, the Developer offered to pay the cost of Frankel’s engineer to observe the installation of the party wall tie-backs, and the “pull testing” of such tie-backs, the procedure by which the party wall tie-backs are tested to ensure that they are properly securing the party wall.

In an unprecedented decision, on December 6, 2019, the Court granted the Developer a license to access the adjacent owner’s building to, inter alia, install the party wall tie-backs. The Court found that “the intrusion into [Frankel’s building] by way of the tie-backs is minimal and the protection is necessary until the new building is erected to provide that same support. Accordingly, upon a weighing of the interests of the parties herein, this Court determines that [the Developer] is entitled to a license to install the party wall tie-backs. Although [Frankel] strongly objects to the party wall tie-backs, such protection is, in this Court’s opinion, the most reasonable option for the parties under the circumstances and is ‘virtually unavoidable’.”

Joanna C. Peck of Adam Leitman Bailey, P.C. successfully represented the client on this matter.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS