240W35, LLC v 243 West 34th Street LLC: Adam Leitman Bailey, P.C. Prevails Obtaining Court Order/License to Do Remediation and Repairs on Client’s Property and Ability to Access Adversary’s Property to Finish Work
Against one of the largest land owners in the world, our client, a real estate company needed access on our adversary’s property to do repairs to our client’s buildings. Real Property Actions and Proceedings Law section 881 permits an owner of real property to petition the court for a license to enter an adjoining owner’s property when the adjoining owner refuses to enter into a license agreement to grant access. The court should fashion a remedy as justice requires. Adam Leitman Bailey, P.C.’s client needed to access an adjoining owners property to perform Local Law 11 remediation and other work to ensure that the building would not be subject to collapse. The site safety plan which the Department of Buildings had approved called for a controlled access zone to the rear yard of the adjoining property. The yard was essentially a storage area for a commercial tenant who was shuttered due to COVID-19.
The need for access became acute during the early months of the pandemic when permission was needed to access the courts for an “essential” matter. Adam Leitman Bailey, P.C. was able to demonstrate that its matter was essential and needed prompt determination by the court. During conferences with the court, it was discovered that the adjacent owner had taken the law into its own hands by installing an overhead protection over the rear yard which created a violation since the facts on the ground were different from the safety plan.
The court granted the 881 petition Adam Leitman Bailey, P.C. brought on behalf of its client with the proviso that if the adjacent owner could legalize the overhead protection, the need for a controlled access zone would be eliminated. Further, given the exigent circumstances cause by COVID-19, the court left it to the parties to work out additional terms for the license. The court, however, ruled that any party would be free to return to court if the details could not be worked out.
The adjoining owner, appealed to the Appellate Division, First Department. First, it sought to obtain a stay pending appeal to prohibit Adam Leitman Bailey, P.C.’s client from going forward. That application was defeated. Subsequently, on appeal, based upon arguments Adam Leitman Bailey, P.C. made in its brief to the court, on oral argument, counsel for the adjoining owner was forced to concede that the self-help in which his client engaged was never permitted and that he never went back to the court to work out additional provisions of a license agreement.
Consequently, the Appellate Division affirmed the order of the trial court finding that the terms of the license the court had granted were reasonable and nothing in the lower court’s order would preclude the adjoining owner from seeking additional relief as future circumstances may require.
Jeffrey R. Metz represented the client on appeal and Joanna C. Peck and Jeffrey R. Metz represented the client before the trial court. The oral argument before the Appellate Division can be seen at https://youtu.be/dNC9EcP9RZk?t=1737