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Real Property Actions And Proceedings Law (“RPAPL”) § 881 –Novel Decision Effecting The Rights Of Developers – In New York City – Adam Leitman Bailey, P.C. Defeats Emergency Application Concerning Permanent Encroachments before Appellate Division

By Jeffrey R. Metz


Following the Supreme Court’s landmark ruling in Tompkins 183 LLC v. Frankel, granting the Developer of a residential and commercial building in the East Village a license  to install permanent encroachments in the form of party wall tie-backs in the shared party wall d  that were necessary for the Developer  to proceed with the demolition of its existing building, the Adjacent Owner filed an emergency application before the Appellate Division seeking an immediate stay of the installation of such permanent encroachments by the Developer.  

The Adjacent Owner sought a stay of the order and argued that the tie-backs constituted an impermissible permanent encroachment under RPAPL Section 881, was in violation of existing authority,  and would result in irreparable injury.  

 Adam Leitman Bailey, P.C. appeared on behalf of the Developer   and argued to the Appellate Division that the party wall tie-backs, which spanned a mere three inches (3”) into the joists of the Adjacent Owner’s building,   were being installed by licensed engineers for the sole benefit of the Adjacent Owner.  Specifically, the party wall tie-backs were required in order to structurally secure the Adjacent Owner’s building so that the shared party wall did not collapse during demolition.  

Adam Leitman Bailey, P.C. further  advised the Court that the tie-backs would not have any impact on the use and enjoyment by the Adjacent Owner of her building. 

That the Developer had agreed to pay for the costs and expense of the Adjacent Owner’s engineers to observe the installation of each of the party wall tie-backs, and the “pull testing” of the tie-backs. 

Most critically, Adam Leitman Bailey, P.C. demonstrated to the  Court that the Adjacent Owner, in fact, did not object to the installation of the party wall tie-backs so long as it was “adequately” compensated  and therefore  was employing  the emergency application   to attempt to extract significant compensation from the Developer for the permanent encroachment.  

It was also argued that in the event the Court was inclined  to grant the emergency stay, the Adjacent Owner should post a substantial bond in order to protect the Developer from any damages during the pendency of the final decision of the instant application.   

The Appellate Division agreed with Adam Leitman Bailey’s  arguments, and accordingly, declined to grant the Adjacent Owner’s application for an emergency stay enjoining the Developer from installing the permanent tie-backs onto the Adjacent Owner’s building, unless  the Adjacent Owner’s posted a bond in the amount of $1,500,000 within approximately twenty-four hours of the order in order to secure any damages incurred by the Developer as a result of the stay.

The Adjacent Owner was unable to timely post the bond, and accordingly, the Developer successfully proceeded with the permanent installation of the party wall tie-backs, and the demolition of its building.

  Joanna C. Peck represented the Developer before the Supreme Court and joined with Jeffrey R. Metz for the proceedings before the Appellate Division.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS