NSTITUTE CCESS AND E A INSURING GREEMENTS … Agreements and Insuring Easements - 04.04...Continuing...

NY

CL

A

CL

E

IN

ST

IT

UT

E

ACCESS AGREEMENTS

AND INSURING EASEMENTS

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY

scheduled for April 4, 2016

Program Co-sponsors: NYCLA's Construction Law Committee, Real Estate Section and Lex Terrae Ltd./Old Republic National Title Insurance Company

Program Chair: Ariel Weinstock, Katsky Korina LLP, Co-chair NYCLA's Construction Law

Committee

Faculty: Jack Feirman, Old Republic/Lex Terrae; Bruce Lederman, D'Agostino, Levine, Landesman & Lederman, LLP; Ariel Weinstock, Katsky Korina LLP

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional and Non-Transitional credit hours: 1 Professional Practice/Law Practice Management; 1Skills.

This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 2 hours of total CLE credits. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law.

ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification

Access Agreements and Insuring Easements April 4, 2016; 6:30 PM to 8:30 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Access Agreements and Insuring Easements

Monday, April 4, 2016

Program Co-sponsors: NYCLA's Construction Law Committee, Real Estate Section and Lex Terrae Ltd./Old Republic National Title Insurance

Company

Program Chair: Ariel Weinstock, Katsky Korins LLP, Co-chair NYCLA's Construction Law Committee

Faculty: Jack Feirman, Old Republic/Lex Terrae; Bruce Lederman,

D'Agostino, Levine, Landesman & Lederman, LLP; Ariel Weinstock, Katsky Korins LLP

AGENDA

6:00 PM – 6:30 PM Registration 6:30 PM – 6:35 PM Introduction and Announcements 6:35 PM – 7:25 PM Access Agreements 7:25 PM – 7:40 PM Break 7:40 PM – 8:00 PM Easements and Insuring Easements

457424-1-W

LICENSE, INDEMNITY AND PROTECTION EASEMENT AGREEMENT (Developer Friendly)

License, Indemnity and Protection Easement Agreement (this “Agreement”), dated as of __________, by and between _____________________, having an address at c/o _________________, (“Licensor”) and ________________, having an address at c/o ____________ New York (“Licensee”).

W I T N E S S E T H

WHEREAS, Licensee is in the process of developing and performing various improvements (the “Work”) to the property located at ________________ and Licensor is the owner of the adjoining property located at _________________ (the “Adjoining Property”); and

WHEREAS, Licensee desires to obtain a license and easement for Licensee and its consultants

and contractors (collectively, the “Licensee Parties”) to enter and have access to the Adjoining Property for the purposes of performing certain portions of the Work on and from the Adjoining Property and providing for the protection of the Adjoining Property against damage caused by such Work (the “Protective Work” and together with the portions of the Work to be performed on or from the Adjoining Property, the “Access Work”); and

WHEREAS, Licensor is willing to grant such license and easement subject to the terms,

provisions and conditions hereinafter set forth. NOW THEREFORE, upon the premises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

1. Subject to and in accordance with the terms and conditions of this License Agreement, Licensor hereby grants to Licensee and the Licensee Parties, and Licensee hereby accepts from Licensor, a license and easement to enter upon the portions of the Adjoining Property (the “License Areas”), necessary for use by Licensee and the Licensee Parties for the purposes of performing the Access Work and/or complying with any requirement(s) of law imposed upon the Licensee Parties, including any requirements imposed by the New York City Department of Buildings. The term of the licenses and easement granted herein (the “License Period”) shall be for the term ending when a permanent certificate of occupancy is issued for the Development Site and for a reasonable period of time thereafter to enable Licensee and the Licensee Parties to complete any repairs to the Adjoining Property as required hereunder and to vacate the License Areas.

2. Licensee and the Licensee Parties shall take commercially reasonable measures to prevent any material damage to the Adjoining Property.

3. Licensee agrees to indemnify and save harmless Licensor and Licensor’s partners, officers, directors, contractors, agents, members and employees (the “Licensor Parties”) from and against any and all liability (statutory or otherwise), claims, suits, demands, actual damages (excluding consequential and punitive damages), judgments, costs, fines, penalties, interest and expense (including, without limitation, reasonable attorneys’ fees and disbursements) to which the Licensor Parties may be subject to or suffer arising from, or in connection with the Licensee Parties’ use and occupancy of the License Areas and, to the extent caused by Licensee Parties, any violation of any and all laws, orders, rules and regulations of all state, federal, municipal and local governments, departments, commissions and boards.

457424-1-W - 2 -

4. All damage or injury to the License Areas, caused by or resulting from the negligent acts or omissions of Licensee or the Licensee Parties shall be repaired promptly by Licensee at its sole cost and expense, to the condition existing immediately prior to such injury or damage.

5. Licensee shall provide evidence of the Licensee Parties’ comprehensive general liability insurance with limits of no less than $___________ per occurrence, $_________ annual aggregate, with an umbrella policy of no less than $_________, which insurance shall be written with financially responsible carriers and naming each of __________ and __________ as an additional insured.

6. Licensor covenants and agrees that, except for the onset of a physical condition that renders the Adjoining Property dangerously unsafe, it will not apply for any stop work order or oppose Licensee’s applications before any governmental agency or board, including, without limitation the Landmarks Preservation Commission. Except in the event of emergency conditions, prior to applying for a stop work order, Licensor shall give Licensee at least five (5) business days’ notice and opportunity to cure the condition. If Licensee commences and thereafter takes commercially reasonable measures to cure such condition and diligently proceeds with such curative measures to completion, Licensor shall permit such cure to continue and not apply for a stop work order unless such condition has a material negative impact on the Adjoining Property or occupants of the Adjoining Property that is not being substantially mitigated by Licensee’s curative efforts.

7. Miscellaneous Provisions.

(a) This Agreement constitutes the entire understanding between the parties regarding the subject matter hereof and shall bind the parties hereto and their respective successors, assigns or other legal representatives. This Agreement supersedes any prior verbal understanding or written agreement between the parties relative to the subject matter hereof, and may not be amended, supplemented or discharged except by an instrument in writing signed by both parties.

(b) Nothing contained in this Agreement shall be construed to create an agency, partnership or joint venture arrangement between the parties. The parties' relationship shall at all times be and remain licensor-licensee.

(c) This Agreement shall be governed by and construed under and in accordance with the laws of the State of New York, without regard to its conflicts of law provisions. LICENSOR AND LICENSEE HEREBY VOLUNTARILY, KNOWINGLY AND IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION BROUGHT UNDER THIS AGREEMENT. In the event that either party shall commence an action to enforce its rights hereunder or to clarify said rights, the party substantially prevailing shall be entitled to recover the costs of such action from the other party, including, without limitation, reasonable legal fees.

(d) This Agreement may be executed in two or more counterparts, each of which, when taken together, shall constitute one and the same instrument. Electronically transmitted signatures shall be deemed binding and effective.

LICENSOR: LICENSEE:

___________________________, ___________________________,

By:________________________ By:________________________ Name: Name: Title: Title:

457424-1-W

LICENSE, INDEMNITY AND PROTECTION EASEMENT AGREEMENT (Developer Friendly)

License, Indemnity and Protection Easement Agreement (this “Agreement”), dated as of __________, by and between _____________________, having an address at c/o _________________, (“Licensor”) and ________________, having an address at c/o ____________ New York (“Licensee”).

W I T N E S S E T H

WHEREAS, Licensee is in the process of developing and performing various improvements (the “Work”) to the property located at ________________ and Licensor is the owner of the adjoining property located at _________________ (the “Adjoining Property”); and

WHEREAS, Licensee desires to obtain a license and easement for Licensee and its consultants

and contractors (collectively, the “Licensee Parties”) to enter and have access to the Adjoining Property for the purposes of performing certain portions of the Work on and from the Adjoining Property and providing for the protection of the Adjoining Property against damage caused by such Work (the “Protective Work” and together with the portions of the Work to be performed on or from the Adjoining Property, the “Access Work”); and

WHEREAS, Licensor is willing to grant such license and easement subject to the terms,

provisions and conditions hereinafter set forth. NOW THEREFORE, upon the premises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

1. Subject to and in accordance with the terms and conditions of this License Agreement, Licensor hereby grants to Licensee and the Licensee Parties, and Licensee hereby accepts from Licensor, a license and easement to enter upon the portions of the Adjoining Property (the “License Areas”), necessary for use by Licensee and the Licensee Parties for the purposes of performing the Access Work and/or complying with any requirement(s) of law imposed upon the Licensee Parties, including any requirements imposed by the New York City Department of Buildings. The term of the licenses and easement granted herein (the “License Period”) shall be for the term ending when a permanent certificate of occupancy is issued for the Development Site and for a reasonable period of time thereafter to enable Licensee and the Licensee Parties to complete any repairs to the Adjoining Property as required hereunder and to vacate the License Areas.

2. Licensee and the Licensee Parties shall take commercially reasonable measures to prevent any material damage to the Adjoining Property.

3. Licensee agrees to indemnify and save harmless Licensor and Licensor’s partners, officers, directors, contractors, agents, members and employees (the “Licensor Parties”) from and against any and all liability (statutory or otherwise), claims, suits, demands, actual damages (excluding consequential and punitive damages), judgments, costs, fines, penalties, interest and expense (including, without limitation, reasonable attorneys’ fees and disbursements) to which the Licensor Parties may be subject to or suffer arising from, or in connection with the Licensee Parties’ use and occupancy of the License Areas and, to the extent caused by Licensee Parties, any violation of any and all laws, orders, rules and regulations of all state, federal, municipal and local governments, departments, commissions and boards.

457424-1-W - 2 -

4. All damage or injury to the License Areas, caused by or resulting from the negligent acts or omissions of Licensee or the Licensee Parties shall be repaired promptly by Licensee at its sole cost and expense, to the condition existing immediately prior to such injury or damage.

5. Licensee shall provide evidence of the Licensee Parties’ comprehensive general liability insurance with limits of no less than $___________ per occurrence, $_________ annual aggregate, with an umbrella policy of no less than $_________, which insurance shall be written with financially responsible carriers and naming each of __________ and __________ as an additional insured.

6. Licensor covenants and agrees that, except for the onset of a physical condition that renders the Adjoining Property dangerously unsafe, it will not apply for any stop work order or oppose Licensee’s applications before any governmental agency or board, including, without limitation the Landmarks Preservation Commission. Except in the event of emergency conditions, prior to applying for a stop work order, Licensor shall give Licensee at least five (5) business days’ notice and opportunity to cure the condition. If Licensee commences and thereafter takes commercially reasonable measures to cure such condition and diligently proceeds with such curative measures to completion, Licensor shall permit such cure to continue and not apply for a stop work order unless such condition has a material negative impact on the Adjoining Property or occupants of the Adjoining Property that is not being substantially mitigated by Licensee’s curative efforts.

7. Miscellaneous Provisions.

(a) This Agreement constitutes the entire understanding between the parties regarding the subject matter hereof and shall bind the parties hereto and their respective successors, assigns or other legal representatives. This Agreement supersedes any prior verbal understanding or written agreement between the parties relative to the subject matter hereof, and may not be amended, supplemented or discharged except by an instrument in writing signed by both parties.

(b) Nothing contained in this Agreement shall be construed to create an agency, partnership or joint venture arrangement between the parties. The parties' relationship shall at all times be and remain licensor-licensee.

(c) This Agreement shall be governed by and construed under and in accordance with the laws of the State of New York, without regard to its conflicts of law provisions. LICENSOR AND LICENSEE HEREBY VOLUNTARILY, KNOWINGLY AND IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION BROUGHT UNDER THIS AGREEMENT. In the event that either party shall commence an action to enforce its rights hereunder or to clarify said rights, the party substantially prevailing shall be entitled to recover the costs of such action from the other party, including, without limitation, reasonable legal fees.

(d) This Agreement may be executed in two or more counterparts, each of which, when taken together, shall constitute one and the same instrument. Electronically transmitted signatures shall be deemed binding and effective.

LICENSOR: LICENSEE:

___________________________, ___________________________,

By:________________________ By:________________________ Name: Name: Title: Title:

FILED: NEW YORK COUNTY CLERK 02/25/2014 INDEX NO. 654425/2013

NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 02/25/2014

APTER 33 - 2014CC _BC_ Chapter _33 _Safeguards _During_ Construct10n _or _uemo.por

l Demonstration that me request meets or e:xceeds the level system> and system:S mstalkd .m accordance with this

6. \\'here au ahemittive system is propos~ a mm.:imw:n level manufactw:er of the alternative system.

1303:.9 l'nencios~ {lffrimeter protection .inspection, nse, adjustment, maintenance, and repair. Safety net systems, guardrail syste:>ru, and al:temati:ve systems authorized under Sectioo :BOS .. S shall be u~ adjusted, :o:Wntained, repaired, and '"'F""'-''"' in accordaru:e with the dra:wings, mru:i.ukturer and the requirements of tl:tl$ code.

3308.9.l Sak c()ndirion. n.et systems, system$, md alternative ll)tstem:S authorized oo<ie:r Sei."tion 3308Js shall be mainra:ined in a we condition and used in a !ll.lllUlet' that eliminates hazards to the public: and :property. hazardous conditions or defects dlicovered ,vifu such shall be brought to the attention of the responsible pemlit holder ooder Section 330&.4.

33()8.9.2 Proc:autions. Pt'ecamions sba:li be taken to :prevent 4et systems, guardrail systems, and alteroati:n~ systems authorized under Sectioo J308Js from being damaged ,....,,,.15'""• abrasion, sand, rrn;t, tvelding, cutting operations, chemicals, and airoorne \vhere such systems are by such.

gu.:u...,;a:u systems, and ab:emative s~ authorized under Section 330&.8 shall be m:o.pec;ea for with this code required as well as after each impact looding eYent, installatrou, remstallatton, adjustment, mamtem.nce, or repair of soch .. or <WJ' part or comp;::inem o:fsuch.. Wllere the job requires a site safety manager or coordinator in accoroauce 'vith Section 3310, the inspection shall be perfonned the site satety man.ager or ce<tra11ru11t.oL and a written reco.rd of such inspection :o:Wntained as part of the site safety fog. \Vb.ere the job does not require a site i:ru:mager or coordinator, th:e inspection shall be performed by a competent person designated by the pennit holder in accordance with Section with a record of such insp.ectioo prepared, initi.a1ed, and dated by such competent person.

3303.9.4 Remo1rmg fr<lm senice. ~ net systems, guardrail systems, and alten1ative systems authorized under Section J308. 8 of mifrletv, corrosi.oo, wear, tears, breaks, frays, damage, or deterioration that may substantia:liy affect the

of such sba:l1 be removed from setvice.

3308.9.5 Repair. Repairs to safety net systems, guardrail systems, and a!temarive systems authorized under Section J308.S shall be m accordance with the specifications of the manumcturet of such and shall :provide the orig;inal manufacturer factor of !!afety' or where none emsts, shall be n1 accordance with specmu.oons developed by the registered design professional re>•P1YUS1•0.1e for the of the £ttmg systems in accordance with Section 3308.H.

E:i:c*Ptmn: Sn:ocwal nets and debris nets shall not be ""''"""'"...__

SECTION BC 3300 PROTECTION OF ADJOINING PROPERTY

:nOO.l Protection requind. Adjoinmg public and private property, including persons thereon, sha:l1 be protected from damage and construction or demolition work in accoroauce with. the requirements of this sectioo. Protection must be pro¥ided for

rocion,i;s. foundailons, part}" wa:lis, chimneys, skylights and roof£. Provisions sha:l1 be made to control water ruu--0ff and erosion dming construction or demolition activities.

3309.l.l Notification. \V'here a coost:mction or demofuron :project will r~uire access ro adjoining :property in accordance 1vith this written notification shall be provided ro the a~iommg property owner at least 60 calendar days prior to the commencement of \York, Such notification shall describe the nature of work, estimated schedule and muation, derails of msiDec•ti.01:is or monitoring ro be perfonned on the atljoining :propert:_y, :protection to be installed on the adjoining :property, an.d contact information for the project. \Vhere no respome is recei:n:d, a seco!l;d written notificatioo sba:l1 be made no more than 45 calendar days, and not less than 30 c~ prior to the comm.em:ernent of work.

33fi'9.2 Lice:me to enter adjoining property. The responsibility of afford.mg my lic:ense to enter adjoining property shall rest upon the owner of the adjoining property and in case any tenant of such t:J<>vner fails oc refuses to permit the owner to afford such such failure or refusal 3hail be a ca.use foc the 0\\'11€!' to dispossess such temmt through appropriate legal proceedings

,:f/wwwl.nyc.gov/assets/buildings/apps/pdf_viewer/viewer.html?file=2014CC_BC_Chapter_33_Safeguards_... 3/30/2

APTER 33 - 2014CC _BC_ Chapter _33 _Safeguards _During_ Construction_ or _Demo.par

"""'"''''""'"'"' possession of real property. Nothing m this urnierrxi11!1'. cPmtruction or demolition work from for a

rro•c<1N2am:~s Law.

shall be construed m prohibit the owner of the property Pf'C<:ei~ctn:ig pursuant to Section 881 of the R«il Property

3309.3 Physical uammation. \\then ~ion to enter upon adjoining pniperty has been obmined, a physical ~a:ti-0n of;;n.1ch property shall be conducted the person the c;:;;nstruction or demolition operations prior to the commencement of the oµi;£:11u:o11:1 mi.cl at reasonable during the progress of the worlt:. Observed conditioiu shall be recorded by the person me con.~miction or demolition and such records shall be made available tc the depa:rtment upon request

3300 . .4 Soi! Qr fQtmdatiou work affeding adjomm1 poop~rty. Whe:nevet soil or foundation work occurs, regardless of the depth of such,. the persoo who caus.es rucl~ to be made shall. at all times the course of such work and at his or her O\Yn expense, pre:1.en:e and protect from any strm:wres, hut .not limited to fuotings and foundations, provided such person is afforded a license ill accordance with the of Section 3309.2: tc enter and inspect the adjoining bu:iktmgs and J:l't<>perty, and to perform such work thereon as may be necessary for such purpose. If the person >vho causes the soil or foundation wodc is not afforded a license, ;ruch duty to preserve and protect the adjacent property sh.all devolve to the owner of such adjoining property, who shall be. afforded a similar l:iceme with respect to \vhere the soil or foundation work is to be made

3309.4.l Additional safegu.ank dmillg n:eavaoon. The following addition.al requirements shall apply during exca1tation:

The person the excavation shall s~port the vertical and lateral ioad of the adjoining structure by proper touiXUl<i!.UCftl;;, u:ndapi:naing, or other equn 'aknt means; \VWe the level of the foundations of the adjoining structure is at or above ti1e level of the bottom of the new excavation ..

' \\'here the adj•.Jmmg structure is below the ievel of the construction or demolition, provision shall he made to support any increased Yertical or lateral load on the e~g adjoining structure caused by the construction or demolition.

3' \\'here the consmiction or demolition will r~-ult in a dect'ease in the frost protection for m foundation belmv the min.ii:nwns established in Section Hl053J, the existing fow<latioo shall be modified as necessary to restore the required fro.st protection,

330:9.4.2 Support of party wa&. \Vhere a pruty wall will be affected excavation, regardless of the depth, the person who causes the ex.ca:rarion to be made shall p:resen:e such party wall at .his or her O\vn expense S·O that it shall and shall remain, in a safe cooditioa \\'here an adjoining party wall is intended to be rmed by the persoo causing an exca:vation ro be made, and such part:· wall is in condition and suffi.c:ieut for the uses of the aud Pf'Oposed buildings, :it shall be the duty of such. person to protect such party wall and support it proper fou~ns, so that it shall be and remain practically as safe as it was before the e.'l'.cavatiou was commenced.

3369.4.3 Precomtnu::oo.u survey. No e.xcavation work to a depth. of 5 feet to 10 reet {1524 tnm ro 3048 mm,) \vithin 10 feet (304S mm) of an adjacent !:mil.ding, «an ~m:·ation over HJ :U;et (304$ mm) anywhere oo the site shall commence until the person

an e.xc:.a»<11tion ro be made has documented the existing conditrom of all adjacent buildings m a precoo..~on surr. l!y.

3300.4.4 Monitoring. During the course of e..xcin;a:tion WOl'.k the following shall be monitored m accorda1'.lce \\•ith Section 330916:

Buildings that are within a distance from the exca;;ation.

2. Historic sttucrures that are cootigi:row to or within a lateral ;:fu,tmce of 90 feet an exca\11.tlon is occwring.

432 mm) from the edge of the iotwhere

p:t"ovided:

2 \\nere the exc.avatioo occurs within five feet (1514 mm) oo- less from a footing or foundation, such excavation does not ocrn1· beiow the level of the footing or fou.w:iation,

3309.4.5 Potential ba:nrd. When, in the opinion of the a potential hazard exists as a result of soil or foundation work, elevatiom of me adjacent buildings shall be res.:orded o:r other monitoring prix:edures ;;hall be implemented by a registered

professional at inter:als of 24 hours oo- less as determined commissioner to ascertain if movement has occurred.

33fi95 ruderpmning. \\'hene..-er um:!erpmrung is required ro preserve mi.cl protes.:t an adjacent property from construction, demolition, or e:xcava.tion wo:rk, the pencm who causes such wotl: at his or her own expense, underpin the adjacent building '"'"''"''i'"" such person is afforded a license in accordance :vith the requirements of Ses.:tion 3309 .2 tti enter and inspect the adj ommg i..eu•·'"""'"" and property, and to perlomi such ·wod:: th.ereoo as may be necessary for such purpose, If the person :vho cau.ses the

,://wwwl .nyc.gov/assets/buildings/apps/pdf _ viewer/viewer.html?file=2014CC _BC_ Chapter _33 _Safeguards_... 3/30/2

APTER 33 - 2014CC_BC_Chapter_33_Safeguards_During_Construct10n_or_uemo.por

or excavation work .is not afforded a soch duty to """''""'"""'"' and protect tile adjacent property shall cietolve to tile 01vner of tile adjoining property, who shall be afforded a s:i.ruilar with respect to the property where the co:nstn1ctioo, dem©htron, or excavation is to be pertbnnett

3300.6 Subsurface operatiom aff'ect:Wg adjacMt prope~. \\lhenev·er subsmface operatioos, other than excavation or fill, are conducted tl:mt may loads or .m©vemettts oo adjoining: property, tndruiing but not l.imited to the driving of piles, compaction of wils. ot soil the effects of such operations on property and structures shall be monitored in accordance \Y.tth Section .H09J6

3309.6.l Change in ground water level \Vltere 01<11cetnei:it of a fowuiation will cauae changes in tile water level under <K11;ac e111 u1;>u1W•WMP, !:he effects of such \'.In !:he and settlement of the adjacent foundations shall be investigated and

shall be made to prevent to soch ou1ldl!1gs.

3309 .. 6.2 Potential hazard. \Vhen, in the opinion of tile commissiooer, a pote:mial hazard exists as a .result of subswface elcn'ltions: of the shall !:le recorded by a registered design professional at intervals cf 24 001J.t"$ or

less as cktennined !:he commissioner to ascen:ain if movement has occurred.

331J9.7 Retaining st:rnmtres.. \v'hen: the regulatioo of a lot the gromtd on such lot to be raised or lowered and kept higher th.m tile '""'f the provided the t:Jf such lot is not maiutamed at a kmrer than in conformity with !:he street or !>treets on which it ;s situated; or where m excavation l:l.as been made or a fill placed oo any lot roeet:ing the curb le\'el and the adjoining land is maiutamed at a in confoi:mrty with or lower than tile streets or streets on which it B situated; and is ·without p~t str1X1mes other than sheds or similar s~, a retairting structure shall be constructed for the safe support of adjoining ground, unless tile bank bet\Veeu tile adjoining properties is maintained at a safe

retam!Xlg tvall shall. be built and the ov.'tiers oo each unleJ>.s l'.lther\vise

3309.7.l Surplm retaining structures. \Vhere my ow·ner maintains his or her either higher or lower l:han the """""'"""' pres;,c:nt}ea in the Aa'mirtistrative Code, tl;e s.urpim atrocmre that may be :necessar)i' to support soch height or

for such exca·nnion shall be n:mde at tile S-Ole expense of such o\V!let', and any additional thickness that may be required shall be built on tile imd of such o\vner.

3300. '7.2 Removal of retaiamg strm::mrs. Any retaining .strucmre erected as above, stimding partly on the land of each O\Yner, mav be temoYed either owner when the reason for the erection of such retainU1g strucmre ceases ro exist

3309.S Adjoin.mg walls. \Vhen any construction or: tiemolition operation exposes or breaches an adjoining wall, .in.duding load and walls as well as party t"l.<\Us and non pru1y the persoo the construction er demolition

,,,.,,.,."""'" shalL at his or her O'l.vn expense, perform. the :following:

l. \fain.rain the structural integrity of such walls and adjoining structure, and have a registered design professional investigate !:he md corn:litioo of tl;e wall and adjoiuix1g strm:mre, aad take all necessar)i' steps to protect such wall and structure.

} Cut off dose to tile walls all beams in part)! walls, :remcn:e stub ends without weakening existing masonry, dean beru:n ofloo:>e roo11a:r, bend oYer all wall imchors at the beam ends in the standing wall, and brick-up all open beam holes

with 5-0mld brick ru1d cement mortar.

'*·· demolitioo operations, >vhere the floor beams of the adjacent building beat on tl;e party \Vall, tile person cam.mg the denrolition mall l!Scertain !hat such beams are anclwred into the tvaU and, where such anchO!age is lacking, shall provide an£:hora~re or otherwise brace the standing ;val!

5. all noo!.oad-bearing chinmey projections and any other debris exposed on party '.:Valls shall be examined and monitored by ·the person the demolition. Removal of such items shall be mack tmder the

of a design professional only if the stability of the .adjacent building or structure will not be affected. op;::n111gs shall be bricked op tlush on tl;e exterior side of the party wall. All masonry that is in poor coodition shall be

pointed md patched.

33M.9 \\'eatherproof integrity of adjoining build:ings. \\"here !:he waterproof integrity of an adjoining wall or building has been tnlJJ&lJrea due to construction or demoi:irioo the person causing the construction or demolition operations shall, at his or her own expense, provide all necessary measures to pe:mmnently •vaterproofthe adjoining wall, or hilllding m order to establish or res.tore the of soch adjoining ;vall, or This shall ind:ude, but is not limited to:

<llwwwl .nyc.gov/assets/buildings/apps/pdf _ viewer/viewer.html?file=20 l 4CC _BC_ Chapter _33 _Safeguards_... 3/30/2

APTER 3 3 - 2014CC _BC_ Chapter _33 _Safeguards _During_ Construction_ or_ Demo. pdt rage 11 o

nenn1m~ o;er and flaming all

and pe:rnJ.;anttntll'l'l':at<:~rp:IXXlt1ng all doors or other

walls and i:ni.rapets and any walls that have been disturbed;

lath, and plaster oo party and

an•:lltlfttlg my loose wall material

33f}9J{l Protection of rwfs. '1.\'henever any is to be constructed or d¢molished above the roof of an adjoining it shail be the ruch \YOB to protect from at all times during the course of such work and at his or he.r own expense the ether and located on the roof of the building, and to use every reasonable means to axoid mterference 1.vith the use of the building the course of such wo.rk, provided such person

such work is a:frbrded a license in rv::cordance with the cf Section 33092 to enter and ttD>pe:ct the aa1omm2 uuuu1m2 and such work thereon as may be necessary for such purpose; the duty of protecting the roof, skylights,

and on the roof of me shall d1n:ol:ve u:i:xm the 01v11e:r of sud1 adjoming ou1iro1;ug.

Pr<ltce1::ti.-01n shall ~ secured to preTent \Vind. \\'here consnuction or demolition 'vork occurs at a above the le·.: el of the reto( shall consist of 2 in ch.es

nllll) of flame-retardant foam under 2 inches mm) of flame-retardant wood pWik laid tight and co\·ered by flame-retardant or shall consist protection to the and shall extend tc a distance of at least 20 feet

of the building bemg constructed or dem.olished.

'..H09.H Proteetii.m of trtts. No trees outside the property line 1xithin me sha.U ~disturbed ·or ren10;-ed without of the cmnmissioner of the departinent of and recreation. Protection the requiremetlB of the

and recreation shall be for a11 .such trees, and written notification shall also be made to the department and recreation at least 48 hours prior to commencemmt of such work

3309. H.l Deleteri@ns, cans tic, or acid materials, No 11 .. 1 .. r1•n''"~

feet (3048 mm) of ally tree within the pnblic nx>r shall salt for the rem.::m'.11 of ice or ,;".!low ~ applied \vhen runoff wiU drain to a tree \vithin the public r12m--ot-·\V<tv

Exceptions:

Ar;1phcat1on of matenrus as necessary to preYent and wtm111a hazards m areas accessible to the pubhc durmg periods \Vhere freezing conditions ru:e to be en.collltered.

3309.12 Protectfiln of dumneys. per$0:11 having the dm:y to alter or maintain of my adjoining buildmg imder and pursuant to the ofthil; the .Vew York Mtu:lwnical Code, the N;;rv: York City Fuel Gas Code, or other applicable lmn and rules shall~ afforded a license in accon:imce wim the of Section 33092 to enter and such t:rn:uGin£ and perform such vrnrl!: thereon as may be necessary for purpose; othenvise, such duty shall devoh·e upon me owner of

3309.B Protection of adjommg equipment and spaces. \\'henever a major l:milditig is constructed or demolished, and provided ·-~-~"'"'··~ a site pl<m :in accordance v1tim Se:ctioo it shall be me duty of the persoo causing such work to protect

wu:•t<12c. at all times during the ccfwse of such work and at his or he:r own e~. all mechmica1, deetricat and similar eoi11urne1nt cm the property that are within 20 feet (50S from an u:nendosed perinlcter of me and to protecr all publically access:t'ble spaces oo the adjoining property that are within 20 feet (508 mm) from an Ullendosed perimeter of the and ruse to u;-;e every reasonable means ro avoid mterlerence ''ith the use of <.>uch and spaces the coill:>e of such coostn:Jction or demolition \Vork, provided such person ccrusing such work is affurded a license in accordance with fue

·~~''"'"<'.,., of Section 3309 .1 to enter and :inspect the adj-Oming property and perform such ·wo.rk thereon as may be necessary for mch purpcse; othenvis:e, the duty of protecting such adjoinmg equipment and spaces shall devolve upon the owner of such adjoming proper~·

I s:ception: Equipment on an adjommg :roof shall oo protected in accordance with Section 3309. 10

33G9.14 Protection of windows. 'l.'1.nenever exterior construction or dem.oi:irion \Vork occurs, and such work :results in an imenclosed "'""~"'"'""'- it shall be th.e of the pexson such work to protect from damage, at all tilnes during the course of such wo.rk a:nd at his or her ov;11 expense, all windo<vs on property that face such work <md are '.W feet mm) or less from an unenclosed provided such person causing such work is afforded a license in accordance with the requirements of Section

,:f /wwwl .nyc.gov/assets/buildings/apps/pdf_ viewer/viewer.html?file=2014CC _BC_ Chapter _33 _Safeguards_... 3/30/2

APTER 3 3 - 20 l 4CC _BC_ Chapter _33 _Safeguards_ During_ Construction_ or _uemo.pui

3309,2 m enter and impect the adJoining property and perform such work thereon as may be necessary for such purpose; otherwise, the the windows mall devolve wpon me owner of1>uch at:!joining building,

f.irceprions: \\'indow wo,tec1tion is oot foc.

l , \fulor a1terat11::ms and ot'llmalt~;

3 \\ bere all ooendo,-,ed are the.t meetl> the requirements -0f Sectioo. or an ""''"''"''"'"'- alternate system. that extends to cover the full and width of me ooeocfosed perimeter; or a supported scaffold covef'!l the full width o.f the unenclosed the scaffold in decked and :flush against me oui1an:tQ at such le\:d whe:n:e the ooeud~d perimeter >vith no gap bet\•,;eeu the wcaffold and the building greater than 3 i:m::hes m.-n), and also that the scatlbld is with and guardrails in accordance with Section 331~.lt

3309.15 '.\fodilkatious and alternate weth-Ods. The commissioner may, based upon a \v.ritteu request frooi a "'""'""'"""'" the requirements for at:!joining property protection by this inducling the installation or use of

such modi.fu:ation or dtemative method meets or exceeds the level of surveying, monitoring, m'\'Dft'no:n or protection, as applicable, afforded ro the public and property by thin section, and alsq pr0cvided the insurance

ciutren1ents of Sections HH and 105 of Title 28 of the Aamims:tnztive Coda are satisfied

3300.15.l RequHt amto:t. A request submitted ooder Secricm 330~U.5 s:hall ioc1ucle:

1. Details of the n:i.odifu:atiou or alternative methods to be utilized;

3.. Demonstratioo. that the· request meets or exceeds the le\·e1 of sur-ve'i!lll!l' r.mmitoring, inspection, or protectio!'JG as "'¥P''-''-"·"""' affi:in:ied to the and property this

6. Wbere such request is made because an a<lioining property owner has not afforded a license in a1'.:cordance ·with the reqcmr,ein,en1ts of Section the request shall contain a notarized letter from the owner of the property tvhere the

is ro commence, or a duly authorized r<:presentative, c~1ng notification has been made to seek a license in accordance with the requirements ofSection :3309 LL

3309.Hi Moui:toring plan. V.'here mouiwring is required suclt mooiwring shall be in accordance -..vith a monitoring plan a professi®ai and to the commissioner. The plan shall be specific ro the structures to be m.onitored and to be oo~ md s:hall the scope and frequency of monitoring, acceptable toleraxtces, a:nd criteria for \Vhen tolerances are exceeded ..

SECHON BC 3lU~ REQt."lRE.:\!E:.""ITS FOR THE COl'ISTRUCTION OR

DEMOLITIO.~ OF :MAJORBCILDINGS

3JHU Scope. This section s:hall appiy to:

1. The co.ustructioo of a new major buildmg;

The ;:ertical or horizontal enlargement of a major buil.dmg;

3. The full or partial demolition of a major· building~

-4. The 01· repair of a of a 21)0 teet (60 960 mm) in height and also pmvided the

btLlldtng, pm;-ided the building is more thm 14 stories or workrequrres a sidewalk shed to be installed; and

5, construction or demolition work, indudmg the alteration, maintatance, or repa;ir of a fru;ade, in a l:mildu1g so designated. the comn:iissioner.

Exception: The requirements of this. section s:hall oot apply to partial demolition operatioos llmited to the :interior components of a major building provided no mechanical demolitioo. equipment, other than handheld devices, are used ..

,:f /wwwl .nyc.gov /assets/buildings/apps/pdf _ viewer/viewer.html?file=20 l 4CC _BC_ Chapter_ 33 _Safeguards_... 3/30/2

APTER 3 3 - 2014CC _BC_ Chapter _33 _Safeguards_ During_ Construction_ or_ uemo.par

33HU.l Applicability of other laws. '.liom.rru~ contained herein shall dim.inish or supersede any other applicahle sta1e, or foderal "t>(mh'l'hcw1

3.310.2 \b.jor buiidillgs. See the definition buil&ing' in Sectio:n 3302.

rage l.J u

33HU Site safety plan. No ret~trn'e:t1<:tl:ts ofArtide 110

of work mted in Section 3310.1 until a site plan that meets the rni~·wativ& Code has been. approved by the department.

33HU Site safely mmtitoring program. For a contractor $hall ex:iact and maintain m<m.1:1ror:~ program shall, at a n:linimum, a s.1te progrru:u to implement sm::h site

with Senion>. .B 10 .5 tbtough .B HH 0.

£nepriou: to the app:ro;-al of the commissioner, a site accordance wim Sectlon 3310 U .

. 3310.5 Site safety manager or coordmator to be designated. One or more site mi.ma.gen shall be designated, as necessary, to a1sure with the site and all site as in th.is Such site satety l'.lN'lnager or managers shall be the owner, agent,. construction matJ.ager, or contractor. All such entities shall agree to de;;,af!;tltate one '>och tite site manager, or \:rhere there is only cm.e site manager., such rruurnger shall be designated as the prii'rutty site man.ager.. Such site :>afety i::rumager(i!) shall be certified by me

m acconiance with Article 402 4 ofTitle 21$ ofilie A.a'ministratita Cod6,

Lxce1::1t1•1>n:: One or more aite coordinators, certi.ftJ.!d by the department in accordance with the requiren1ents of Article 403 of 4 of Title 28 of the Adrninistrative may be in lieu of a site safety manager for the comtruction, "I ·ettical or horizontal ellimgemeut, or full or partial demolition of a major 1:mililing,. prmtided such bui.kiing:

ls less tha11 15 stories or 200 feet (60 96(1 mm) in and

lH0.5.l :'\oti.ficarion to the department of:the primary manager or coordinator. The department shall be notified of the ;;1re manager or coord.inator prior to the comm.en.cement of work. In the enmt th.at an alternate site safety manager

or coordinator will be as the site safety manager or coordinator for a period longer than two coosecuti•-e weeks, the must be "° ootilled. permanent cl:limge of me si.te !'.lll'Ulager or coordinator requires immediate notification to the depa:rt:ment

3310.5.2 P~filH?nc~ .at the site. For the comtmctioo or alrerarion. of a l:milding, the primal'.)· site ~ manager ar coordinator s.hall be present at the site all times ivhl1e active work is and through all phases of \Votk, \Yith excavation ll!l.d until the :i$ eud.osed and the s,idewalk shed remoYed.

brnOOtru;i:, the site ma~:~ei· or coordinator shall be present at the site during all times while active work is occ:unmg and through aU phases be;gwnttig with the rem.oval of any a.Sbestos, or ft'Yade and, for a full until the site has been badcfilled to Of for a partial demolition until the building is enclosed and the sidewalk shed removed.

Eu~tions:

1. ,.,.,.,,,,.,,.,,..., site manager of coordinator is not to be present at th.e site during th.e following "'"'" ""'""" provided no other work is in progress.

>C'>run:e,vHm that does n.-0t ID':olve the dlstml:nmce of material, strw:ture, or e.arth; C se of a hoist to transport p~el

1. 3 C s.e ofa material hoist th.at is fully a1dosed tvithin the perimeter of the buildmg; 1. 4 Finish trowelling of concrete 1. 5 \\Then persow:iel are provided for tempo:rary heat light or •.v ati:f;. 16 Truck deliveries ID the site where the sidewalk is dosed and me entrance gate is wi:tl::tin that dosed side·walk

area .. to the approYal of the commissioner, the requirement for a site safety manager, o:r where a site

coordinator is arthorized by this code, a site may he waived entirely, or reduced to a part time basis v.:itb: such pan time basis determined the in accordance with Section 3 3 HJ 11.

3310.5.J Acting primary site safety man.ager or coordmator. \vnere the primary site safety manager or coordinator is unable to be at the an alternate site manager or coo:rcl.i:n.ato1· shall act as the site safety manager or coordinator. Such shall be recorded i:n the site as required by Section and where requin~d by Section 3310.5.1 notification shall be to the department..

,://wwwl .nyc.gov/assets/buildings/apps/pdf_ viewer/viewer.html?file=2014CC _BC_ Chapter _33 _Safeguards_... 3/30/2

Buildings

3309.1 Protection required. Adjoining public and private property, including persons thereon, shall be protected from damage and injury during construction or demolition work in accordance with the requirements of this section. Protection must be provided for footings, foundations, party walls, chimneys, skylights and roofs. Provisions shall be made to control water run-off and erosion during construction or demolition activities.

33.09.1.l Notiffoatiori. Where a construction 6.rdefnolitioh project wi!L: regufre. access to adiOining property· in accordance with·. this section, Written notification .shall be provided to the adjoining property owiier at least 60 calendar days.priof'to the commencemeht of work. Such notification shali . describe the nature of. work, estimated schedule and duration. details ofil:lspections or monitoring to be perforn'led onthe adjoining property, protection to.be installed oh the adjoinilig proberty,.and tohtact information for the project.

.·.Where no. response is received, a second written notification shall be made no more than 45 calendar days, and not less than 30 calend~r days. prior to the commencement of work.

3309.2 License to enter adjoining property. The responsibility of affording any license to enter adjoining property shall rest upon the owner of the adjoining property involved; and in case any tenant of such owner fails or refuses to permit the owner to afford such license, such failure or refusal shall be a cause for the owner to dispossess such tenant through appropriate legal proceedings for recovering possession of real property. Nothing in this chapter shall be construed to prohibit the owner of the property undertaking construction or demolition work from petitioning for a special proceeding pursuant to Section 881 of the Real

Revision to clarify that section is intended to prevent damage to adjoining property and injury to persons thereon.

New section in the 2014Code to require written nbtification be provided to adjoining property owners if access .to their property will be required to provide protection requfred by Section 3309.

Note: The: scope of this notification is limited to protection• required by thi.s section. ·If access to adjoining property is required for any other re<1?on, for (i1Xample, to provide additional protection not required by this sectl\:>n, to perform repairs, etc, the notification requirements of this section do not apply.

Revision to cross reference relevant section of state law. The referenced law allows a developer to petition the state court to order an adjoining property owner allow the developer access to the adjoining property.

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.]

LEGAL DISCLAIMER: The information in this document is a summary and overview and is not intended to substitute for any law, rule or regulation. The information contained in this document is current only as of September 30, 2014.

bu!!d snfe j livEJ Version 2 - 09.30. 14 Page 202 of 355

Buildings

Propertv Actions and Proceedings Law.

3309.3 Physical examination. Wheh permission to enter upon adjoining I No changes made in the 2014 Code. property has been obtained, a physical examination of such property shall be conducted by ·the person causing the construction or demolition operatiohs prior to the commencement ofthe operations and at

. reasonable periods during the progress of the work. O~sefved conditions shall be recorded by the person causing the construction or demolition· operations, and such r:Ei~ords shall be made available to the departrpent upofi request. 3309.4 [Excavation or filling operations] Soil or foundation work Revisions to the first paragraph reflect terminology utilized in the 2014 affecting adjoining property. [Regardless of the excavation or fill depth,] Code. The term "soil or foundation work" is now a defined term in Whenever soil or foundation work occurs, regardless of the depth of Chapter 33 and is a term utilized throughout the chapter. such, the person who causes [an excavation or fill] such to be made shall, at all times during the course of such work and at his or her own expense, I The second paragraph has been relocated to Section 3309.4.3 of the 2014 preserve and protect from damage any adjoining structures, including but Code; no changes made to the text. not limited to footings and foundations, provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the [excavation or fill] soil or foundation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of such adjoining property, who shall be afforded a similar license with respect to the property where the [excavation] soil or foundation work is to be made.

[No excavation work to a depth of 5 to 10 feet {1524mm to 3048mm) within 10 feet {3048 mm) of an adjacent building, or an excavation over 10 feet (3048 mm) anywhere on the site shall commence until the person causing an excavation to be made has documented the existing conditions of all adjacent buildings in a preconstruction survey.]



buikl sofe I live sufo Version 2 - 09.30.14 Page 203 of 355

Buildings

3309.4.1 Additional safeguards during excavation. The following I Revision to clarify that lateral loads must also betaken into account. additional requirements shall apply during excavation:

. L The person causing the excavation shall support the vertical and lateral •. load of the adjoining structure by proper foundations; µnderpil1ning, cir other equivalent means where the level of the .foundations ofthe. adjoining structure is at or

, • • • • • - • • •• , c

above the levelofthe bottom ofthe new excavi::ltipn. 2. Where the existing adjdinlJ1g structure is below the level of

lh'e [h~w]c.onstruction or dem91itioh, provision shallbe made to support arw. increased vertical or lateral load on the existing adjoinlhg structure caused by the [ne\/Vlconstruction or demolition. ·. ..•. . · • : · .•. · · · ..•...

3; Where the ;[new] construction or demolition will result in a decrease in> foe frost protectidn for an exi$ting foundation

... below the minimllms .established in Sectib~ [18052.l] • 1805.3.1, t~e existing fo\.i@i;l,ation< shall. be mqdjfi~d as

necessar}I tci restore the required frost proteq!!on.

3309.4.2 Support of party walls. Where a party wall will be affected by excavation, regardless of the depth, the person who causes the excavation to be made shall preserve such party wall at his or her own expense so that it shall be, and shall remain, in a safe condition. Where an adjoining party wall is intended to be used by the person causing an excavation to be made, and such party wall is in good condition and sufficient for the uses of the existing and proposed buildings, it shall be the duty of such person to protect such party wall and support it by proper foundations, so that it shall be and remain practically as safe as it was before the excavation was commenced.

Term "new" deleted; the provisions of this section apply to all construction, not just new bui I ding construction.

CrossJeterence updated to reflect the renumbering cif the section in the 2014 Code~

No changes made in the 2014 Code.

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.)


build sofe I live sufo Version 2 - 09.30.14 Page 204 ot 355

Buildings

•· 3309.4.3 Preconstructionsurvey. No·exca~at~on.workto .a depth 6Js I The second parag.raph of Section 3309.4 of the 2008 Code relocated to feet to 10 .feet (1524 mm to 3048 mm).w1thm 10 feet (3048 mm) of here. No changes made to the text. an adjacent building. or an · excavation over·l(} feet (3048 mm)

anywhe_re on the site shall commence until t~e_pe,rson ~~using an l Please note, the provisi·o· ~s of this s~ction .. apply .· .. ~nl.y to.;'excavation" excavation to be made has documented the .. ex1sting cond1t1ons of all work and not the larger universe of"so1I and foundation work." adiacent buildings in a oreconstrudion survev: · · · 3309.4.4 Monitoring. During the course of excavation work the I New section in the 2014 Code. following shall be monitored in accordance with Section 3309.16:

Item number 1 is based on Section 3309.6 of the 2008 Code, under which .1. Buildings that are within a distance from the edge of the I the department requires monitoring of excavations. Item number 1 in

excavation that is equal to or less than the maximum depth the 2014 Code spells this out more clearly. of the excavation.

Item number 2 codifies the monitoring trigger of TIPN 10/88. 2. Historic structures that are contiguous to or within a lateral

distance of 90 feet (27 432 mm) from the edge of the lot I The exemptions contained in Section 3309.4.4 of the 2014 Code mirror where an excavation is occurring. the exemptions provided throughout Section 3304 for shallow

excavations. Exception: Monitoring is not required for excavations to a depth of five feet (1523 mm) or less, provided:

.1. The excavation occurs more than 5 feet (1524 mm) from all footings and foundations; or

2. Where the excavation occurs within five feet (1524 mm) or less from a footing or foundation, such excavation does not occur below the level of the footing or foundation.

3309;4S Potential hazard •. Wherk in the ooinion of th~ I New Section in the 2014 Code; mirrors requirements currently found in

*Underlined text is new text added to the 2014 edition of Chapter 33. (Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.]


build wfe I live sofo Version 2 - 09.30.14 Page 205 of 355

Buildings

commissioner, a potential hazard: exists as a result of soil or foundation work. ;elevations of . the adjacent buildings shall be recorded or other ~bhitoring procedures shall be implemented by a

occurred. 3309.5 Underpinning. Whenever underpinning is required to preserve I Revision to clarify that the requirements of this section apply to and protect an adjacent property from construction, demolition, or demolition work. excavation work, the person who causes [the construction or excavation] such work shall, at his or her own expense, underpin the adjacent building provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the construction. demolition, or excavation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of the adjoining property, who shall be afforded a similar license with respect to the property where the construction, demolition, or excavation is to be [made] performed.

3309~6~~[Foulldati~I)) . Subsurlace-- operatiO:ns affecting ~~cijacent .The section is .revised fo clarify. it applies to subsurfac~ operations, but . properties; \Nhenevef sl,ljJsurface opef<1ti9ns, other than ek~avationor not ,ex~.avations,fill, or underpinning .. Excavation and fill i.s covered by • fil1 are conducted that' may. impose lo'alis or moverhents on adjoinJqg Sectiodi 3~09.4.4 and 3309.4.5 of the 2014 Code. Underpinning is property, [such a~] including but not fimlted to the drh1ing of pile~, covered by Section 1814 . . compaction of soUs, 8,r soil solidiflcatfon, the effects of such operations ·· · '!;m adjoining prqperty an~ structures sha'll. be· mc.mit6rer;l in ·accordance ,With Section 330~.16. · · ·· ·

'Exce9tion1 l\llonitOring during underpinning· shall be ih ~ctordance with Section1814.



build sofo I live sofo Version 2 ~ 09.30.14 Page 206 of 355

Buildings

3309.6.1 Change in ground water level. Where placement of a I Revision to provide a section number and title for the paragraph. foundation will cause changes in the ground water level under adjacent buildings, the effects of such changes on the stability and settlement of the adjacent foundations shall be investigated and provision shall be made to prevent damage to such buildings. 3309.6.2 . t>otent~azard. When,~ ifl the .. opinion ()f the Revi~iqJl to provide a Section n~-mber and title f()r the paragraph, .. Also a cotrimiSsioner, a. potential hazard exists as a resu•tt of subsurface revisiohJto clarify the text applies to "subsurface operations.". For operations; elevations of the adjacent buildings shall:berecorc:led or hazards associated with "soil or founda:tion work," please see the related other mOhitoring procedures: shall be in;iplemented by'a registered Section3309AS. . . . design professidnal at. intervals of 24 hours or leS$ as i:let~rrnined by the commissioner to ascertain if movement has occur,red.

3309.7 Retaining structures. When the regulation of a lot requires the I No changes made in the 2014 Code. ground on such lot to be raised or lowered and kept higher than the ground of the adjoining lot, provided the ground of such adjoining lot is not maintained at a grade lower than in conformity with the street or streets on which it is situated; or where an excavation has been made or a fill placed on any lot meeting the curb level requirements; and the adjoining land is maintained at a grade in conformity with or lower than the streets or streets on which it is situated; and is without permanent structures other than frame sheds or similar structures, a retaining structure shall be constructed for the safe support of adjoining ground, unless the bank between the adjoining properties is maintained at a safe angle of repose. Any necessary retaining wall shall be built and maintained jointly by the owners on each side, unless otherwise agreed to by both owners.

330~. 1 .1 ·surplus- retaining.stru(:tures; where--gny owfler waintains f No changes made i!'.lthe-2oi4. code: · his or her ground either higher o.rloi,,ver than :t:beJegal regulation



~ ·1 ' f , ,. £. OUbO SO('; HVB S0i(1 Version 2 - 09.30.14 Page 207 of 355

Buildings

prescribed ih the Administrative Code, the surplus retainihg structure· that may be heCessary to support such height or provide for such excavation shall be made atthE! sole expense of such owner, and any additional thickness that may be required shall be built on the land .of such owner. 3309.7.2 Removal of retaining structures. Any retaining structure I No changes made in the 2014 Code. erected as provided above, standing partly on the land of each owner, may be removed by either owner when the original reason for the erection of such retaining structure ceases to exist.

3309;8 Adjoinin·g· w. ·a··.'.' .. s· ... · w .. ·. hen···a·-·n.yco····nsj.rM·t:·tion or·dernolitlon operation. I Re.visio·n.s .. m .. ade in item numberl to clar:ifythat the structural integrity of exposes or breache:s an adjoining wa.11, including load bearing and adjoiningwall and structure must be maintained. nonloa~·bearlng walls as well as party walls and non party walls, the · · · person causing the construction or demolition operation sball, at his or her own expense1 p~rformthefollowing: ·.

1. Maihtain the structural integrity of structure,, and have a. registered oesigl1 professional investigate the stability and condition of the wall and adioining structure; and take all necessary steps to protect such wall and structure:

2. Maintain. ~ff required• fire •• exits and passageways . substihit:fons meeting the requirements of this code.

3.

. .

C~t off close. to.the walls aH beams in party walls, rE!nldve stub endswi.thocit weake!1fn{exisfil1g masonry, clean beam pockets of loose mortar, bend over all wall anchors at the beam enps in.the standing wall1 and brick-up all opeh beam holes with soi.ind brick and cement rnortar,



bu!k1 safe I Hve safe Version 2 - 09.30. 14 Page 208 of 355

Buildings

During demolition operations, where the floor beams of the adjacent building bear on the party wall, the person causing the demolition shall (3stertain that such beams are ahchored)ntothe wal.1 and, where su.ch anc. h. orage is lacking, shall provide

' .. ' ''

anchora15e or otherwise brace the ste1nding wall. 5. During . demolition operations, all nonloaci-bearing chimney

breasts, projections.e1nd any other debris exposed on party walls shall be examined and monitored by the persoh C:a~$ing th.e demolition. Removal of such items shall be made under .the superv@on Of a registered design professional only if the stability of the<adjacent building or structure wilLnot be affected. All openings shall be brick¢d up flush on the exteriof side pf the party waU. All masonry that is in poor condition sh~ll b~ pointed . ~~~fuh~. . . ..

3309.9 Weatherproof integrity of adjoining buildings. Where the Revision made to clarify that this section also requires establishing waterproof integrity of an adjoining wall or building has been impaired weatherproofing of adjoining structures; this accounts for situations due to construction or demolition operations, the person causing the where, for example, a party wall is left exposed to the elements. construction or demolition operations shall, at his or her own expense, provide all necessary measures to permanently waterproof the adjoining wall or building in order to establish or restore the weatherproof integrity of such adjoining wall or building. This shall include, but is not limited to:

1. Bending over and flashing all roofing material of adjoining buildings;

2. Sealing and permanently waterproofing all doors or other openings in party walls;

3. Properly sealing all cornices, where cut;

4. Pointing up and making waterproof any walls and parapets and



build safe I Hve safo Version 2 ~ 09.30.14 Page 209 of 355

Buildings

any walls that have been disturbed;

5. Removing all exposed furring, lath, and plaster on party walls; and

6. Removing, replacing, and firmly anchoring any loose wall material.

33{[~.10-Protecti01f o(roofs[/skyllghts, chhnneys, etcJ. Whenever any Revisions made to the first paragraph to Clarify the provJsions of the huiloing is .. to be constructed· o.r demolisheq above the roof of an . : sectiO:n also apply to "equipment on the roof.'' Terminology also revised ~adjoiHiqg buildirig, it sh~ll. be')he duty of the .person c~usihg\suth fttclatif\fproteCtlon froirl damageis required at all time during the course tfo;dldingto be cbnstructed.or derrt.()lished] w.prk to protectfr9m damage ·of the work. · · · · ataU times·during the courJ~of Juch work~Ad at his.or her own expense > > .·.. • . ·

thiroof, skyfightsL (ahd] other ro6f dUtlets, and equiQf)'lent located on The Secpnd paragraph of Section 3309.10 of the 2008 Code has been ; the rBof of the adjoinlrig buiic:;ljng [from darriage], ahd to use every . ;relocatedto beco.me Section 3309.12 of the 2014Code and revised. teas.onable m.ean5 Jo avoid,)ntetference With the·.use of· the adjoinipg .: buiiB.ing duringthe coµrse p~:[constl'Uction or demoliti.on. Such] such A rl:ewsecond paragraph of Section 3309.10 of the 2008. Code has been

·work> brovided such person [shaU be] causing such Work;. is afforqed a· 'cidded to the 2014 Code. The first sentence provides a mandatethat all license fo a,ccordaticewitb the requirements ofSetti.on 3309.2to enter rbof protection be secured to prevent dislodgement by wind .. The

and;inspect the adjoifoY;lg bull~ing and perform such work thereo.h a.s may ren?~inder of the panlgraph provides technical details for the type of be rtec~ssary for SIJch ·Pl;l~pos~; ·otherwise, the duty of ptbteding the protection to be required when work occurs at a height of at least 48 •roof, skylightsL [anci'Lotherr6of outlets, and equipmerit on the roof of the ihches above the level of the adjoining roof. These technical c;letails, and adjpihjng building shaH devolve upbh the owner bf such adjoining the :ZOfoot protection distance, are based onbest practice. When work buil(fit'lg. < ······· ·.... .. . . . .... .. ·. occurs ata lower height1 the general provisions of the first paragraph to

. .. . . . .· · ,: . · ' . . . < · . ·•. ••... protect ate required, bUt no specifics - aside frpm the provision to >[In addition, any pers8n having the duty fo• alter o.r maintairl . prdtectfrom dislodgement by wind- are mandated bythe code.

cfiiri"ineys of any adjoiriirig building under and pursuanttothe provisions ;;of this tode or tile New York ·city Mechaf)ical Code or other .?PPlica!)le Mease note, alternative protection for work that b.ccurs at a. height. of at·.

la,ws: arid r!lles, shall likewise be afforde.d a license iti accordan.ce with the< least 48 inchEls above the level ofthe adjoining. roof can be allowed under req(Jlrements; of Section . 3309.:f to enter and inspect such adjbining the provisions of Section 3309.1!). · building and perform such l!Vork'.thereori as may be necessary for such ·· piif:pose; Otherwise, sUch duty shall devoht~ upon the owner.of such



build sufo I live sofo Version 2 - 09.30.14 Page 210 of 355

Buildings

. .

Adjoining roof protection shall be secured toprevent dislodgement by wind. Where construction or demolltion work occurs at a height of.at . least 48 inches fi219 mm) above the level of the adjoining roof; adjoining rooi:protectioh shall consist of 2inches{51 mm) of flarrle-retardahtfoam under 2 inches (51 mm) of flame-retardant wood plank laid tight and covered byi.flame-retardant Plywood, ·or ~hall consist· of equivalent protection ai::cegtable to the c<lrmnissioner, . and shall extend to a distance of at'iea~ti20feet (508 mmffrbtnthe edge ofthe buildil1g being cbnsttucted or demolished. . . . . . .

3309.11 Protection of trees. No trees outside the property line within the I Revision made to clarify that the entirety of a tree must be protected in public right-of-way shall be disturbed or removed without the permission accordance with Parks Department requirements, not just the trunk. of the commissioner of the department of parks and recreation. Protection meeting the requirements of the department of parks and recreation shall be provided [around the trunks of] for all such trees, and written notification shall also be made to the department of parks and recreation at least 48 hours prior to commencement of such work.

3309.11.'.t Deleterious, caustic/ ot acid materials> No 'deleterious, RevJsiQn'.+ to provide a section. number and. title for. the paragraph . . >caustic, or add nfaterials shall be dLii'pPE!d or mixed within 10 feet Clarificatidn made that the section applies only to trees within the ''public < (3048 rnm)of any [su~h] tref.'!. wi~hin tl{e public right-of-way; nor shall right'."of-way.'; New exc:eptions added for certain concrete operations, as .

salt for the removal of ice or show·pe applied When rµn()ff will drain wefl as for de-icing material. . to atree within the public right-of~wav. · · · ·· ·

E~eeptions: -

l. Mixing, • delivery. or placement of concrete . from a . concrete rnixer dr concrete truck. ..



build safe I !ive >afo Version 2 - 09.30. 14 Page 211 of 355

Buildings

2. Application of de~icing materials a,s necessary to prevent slipping and tripping hazards in areas accessible to the public during periods where freezing conditions are to be encountered. ·

3309.12 Protection of chimneys. Any person having the duty to alter or Section 3309.10 of the 2008 Code has been relocated to here. The list of maintain chimneys of any adjoining building under and pursuant to the other applicable laws has been expanded to include the New York City provisions of this code, the New York City Mechanical Code, the New York Fuel Gas Code. Citv Fuel Gas Code, or other applicable laws and rules shall be afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect such adjoining building and perform such work thereon as may be necessary for such purpose: otherwise. such duty shall devolve upon the owner of such adjoining building.

·33~M3 ~~ec!fuTof adfbining equip~ent and SJ)ac~s. Whenever al New ~e~~~i.on int.· ~e 2014 Code; codifies best_pra. ct. ic.E!~~ re~uire protection ma1or b.u1ldmg 1s constructed or demolished, and provided such work ofadJommg equipment and areas, and provides spec1f1ctnggers. requires a site safety plan in accordance With Section 3310, it ~hall be the . dut\/'of the person causing such work to protect from damage, at all first, dprotection required by this section is predicated upon the times during the course of such work and at his or her own expense; all constru(:tlOn or demolition of a major building that requires a site safety mechanical. electrical. and simHar equipment on the adjoining.property plan: If the. structure is not a major building, or if a site safety plan is not that .are within 20 feet (508 mml from an unenclosed perimeter of the required, protection .of adjoining equipment and spaces is not required . . majb(building, and to.protect all publicallv accessibl~ sbaces or\ the F:C)r example; this exempts certain fa{l9de work that does n()t require a • ifdioining property that are within 20 feet (508 mm) from anonenclosed site safety plan, as well as any work associated with a no11~major building. perimeter.ofthe major building, and also to use every reasonable means . .. . : . . . . .

to aVQi.d interference with the use of such equiptnerit and spaces during the course of such construction or demolition work. provided such gerson causing such work is afforded a. license in accordance with the •requirements of Section 3309.2 to enter and · ihspect the adjoining· orobertv and oerform·such work thereon .as mav be neces$arv for such

Secondly, protectioh is required for "mechanical, electrical, and similar eqyipment on the adjoining property" and ''publically accessible spaces on the adjoining property" that are within 20 feet "from an unenclosed perimeter of the major building." The 20 foot distance mirrors the 20 foot distance in Section 3309.10;



build safe I live safo Version2-09.30.14 Page2i2of 355

Buildings

purpose; otherwise, the duty ofprotecting such adjoining equipment and spaces shall devolve upon the owner of such adjoining propertv.

Exceptloh: Equipment on an adjoining roof shall be protected in accordance with Section 3309.10.

Please note, the trigger is not based on distance from the property line, or even the building line, but rather from the unenclosed perimeter. Equipment or spaces that are sufficiently distant - because of setbacks, yi:irds, streets, sidewalks, etc - do not require protection. Further, if the unenclosedperimeter is only on one side of the structure, protection is no1:required on any other side. In addition, the trigger is based upon there: being an "unenclosed perimeter." This means that even if the building •is a major building that • requires a site·. safety plan, if.· the perimeter (fa~ade) remains enclos~d throughout the duration of the project, therequirements of this sectiol1 would not.be triggered;

Further, tile requirement is for all "mechanical, electrical, and sin'lilar · eql)ipment'1 that falls Within the 20ft distance. Even if the surr'Ounding spacl is closed to the public, protection is still required forAhe equipment. Spaces (as opposed to equipment) that fa.II within. the 20ft distance only have to be protected if they remain open to the public The · public includes both pedestrians as well as occupants of the adjoining building. · · · · · ··

. Please note, this section does not rnandatethe type .of protection to be ihs1:alled. One acceptable means couldbe to install sldewillk sheds over the equipment or areas to be protected, Other acceptable means. could

1 be fo extend horizontal nets to coverthe 2Qft distance, or to providefull height vertical netting, a diapered scaffold, or cocoon system to fully secure the unenclosed perimeter. As the type of protection requi~ed to be installed is hofmandated, the provisions of Section 3309.15 are not applicable.



build sofe I !ive safe Version 2 - 09.30.14 Page 213 of 355

Buildings

3309.14 Protection of windows. Whenever exterior construction or demolition work occurs, and such work results in an unenclosed perimeter, it shall be the duty of the person causing such work to protect from damage, at all times during the course of such work and at his or her own expense, all windows on adjoining private property that face such work and are 20 feet (508 mm) or less from an unenclosed perimeter, provided such person causing such work is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining property and perform such work thereon as may be necessary for such purpose: otherwise, the duty of protecting the adjoining windows shall devolve upon the owner of such adjoining building.

Where the window provides required means of lighting, ventilation, or egress, such protection shall not be allowed to interfere with such required means.

Exceptions: Window protection is not required for:

.1. Minor alterations and ordinary repairs.

£,_ Work performed on a 1-, 2- or 3-family detached house or accessory use to such.

.1. Where all unenclosed perimeters are protected by vertical netting that meets the requirements of Section 3308.5, or an approved alternate system, that extends to cover the full height and width of the unenclosed perimeter: or a supported scaffold covers the full width of the unenclosed perimeter, provided the scaffold is decked and flush against

New section in the 2014 Code. Requires windows within 20 feet of an unenclosed perimeter, and which face such unenclosed perimeter, to be protected. Please note, the trigger is not based on distance from the property line, or even the building line, but rather from the unenclosed perimeter. Windows that are sufficiently distant - because of setbacks, yards, streets, sidewalks, etc - do not require protection. Further, if the unenclosed perimeter is only on one side of the structure, protection is not required on any other side. In addition, the trigger is based upon there being an "unenclosed perimeter." This means if the perimeter (fai;:ade) remains enclosed throughout the duration of the project, the requirements of this section would not be triggered.

Further, windows that are within the 20ft distance, but do not face the unenclosed perimeter, do not require protection. For example, in a court yard, if only one face of the perimeter (fai;:ade) is unenclosed, any windows that are perpendicular to the unenclosed perimeter do not require protection.

Please note, this section does not mandate the type of protection to be installed, although exception 3 does clarify that full height vertical netting or a diapered scaffold is acceptable and if followed would not require any further protection for the windows.

As the type of protection required to be installed is not mandated, the provisions of Section 3309.15 are not applicable.



build sofo I !Ive safe Version 2 - 09.30.14 Page 214 of 355

Buildings

the building at such level where the unenclosed perimeter exists. with no gap between the scaffold and the building greater than 3 inches (76 mm). and also provided that the scaffold is provided with netting and guardrails in accordance with Section 3314.8.

3309.15 Modifications and ai1:ernate methods. The commissioner mav; based upon a Written request from a registered design prC>tessional,

· rnodify the requirements for adjoining property protection required by 'this section, including the installation or use of alternative methods; provided such modification. or alterriativemethod meets orexceeds the level of surveying, monitoring, inspection. or protection. as applicable, afforded to the public and property by this section. and also .provided the insurance requirements of Sections 103 and 105 of Title 28 of the AdminlsttCltive Code are satisfied.

3309.15.1 Request content. A request submitted under Section 3309.15 shall include:

.1. Details of the modification or alternative methods to be utilized;

2. Any stipulations;

3. Demonstration that the request meets or exceeds the level of surveying, monitoring, inspection, or protection, as applicable, afforded to the public and property by this section;

4. Where applicable, a description of the practical difficulty of

New section in the 2014 Code. Provides a means to request modified or alternate methods to meet the requirements of Section 3309. Please note, this section applies to situations where specific technical safeguards are mandated. If a provision in Section 3309 specifies a general requirement to safeguard, but does not provide technical, Section 3309.15 of the 2014 Code is not applicable as there are no specifics to modify.

New section in the 2014 Code. Details the content to be provided in the request .



build sofe I !Ive safe Version2-09.30.14 Page215of 355

Buildings

T iJ.l!. 11181Will''~

complying with code requirements;

~ Where applicable, a reference to the site safety monitoring program; and

6. Where such request is made because an adjoining property owner has not afforded a license in accordance with the requirements of Section 3309.2, the request shall contain a notarized letter from the owner of the property where the project is to commence, or a duly authorized representative, certifying notification has been made to seek a license in accordance with the requirements of Section 3309.1.1.

3309.16 Monitoring plan. Where 111onitoring is required by Section 3309, New Section in the 2014 Code. Clarifies that monitoring required by s'uch monitoring shall be in accordance with a monitoring plan developed Section ~309 must be in accordance with a plan developed by a by a registered design professional and acceptable to the commissioner. registered design professional, with the plan acceptable to. the The monitoring plan shall be< sgecific to the structures to be monitored commissioner. ahd operations to be Undertaken, and shall specify the scope and frequency of monitoring, acceptable tolerances, and reporting criteria for when tolerances are exceeded~

3310.1 Scope. [This section outlines the requirements for site safety programs for major building construction or demolition that are in addition to the other applicable requirements of this chapter. These requirements are not intended to supersede other applicable city, state or federal requirements that address site safety and construction or demolition activity.] This section shall apply to:

The first sentence of Section 3310.1 of the 2008 Code is revised to provide a clearer scope in the 2014 Code. The numbered list reflects the current provisions of the 2008 Code.

The requirements of Section 3310.2 of the 2008 Code were incorporated into a definition of "Major Building" in the 2014 Code. Accordingly, the



bp;! .l <;nf,, 11\,. p c ~f ,. •,JdU .,,<...A<~M Lf,,.., :)'d-f:i Version2-09.30.14 Page216of 355

Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481 (2012)964 N.E.2d 391, 941 N.Y.S.2d 20, 2012 N.Y. Slip Op. 01096

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

KeyCite Yellow Flag - Negative TreatmentDistinguished by Bishop v. Greystone Properties LLC, N.Y.Sup.,

September 15, 2014

SynopsisBackground: Landlord and its commercial tenant suedadjacent property owner and developer, its parent, andexcavator, seeking damages for excavation work thatallegedly undermined building's foundation and causedbuilding to lean by approximately nine inches, resultingin vacate order issued by Department of Buildings. TheSupreme Court, New York County, Carol R. Edmead, J.,denied tenant summary judgment, and the Supreme Court,New York County, Charles E. Ramos, J., granted landlordsummary judgment, and denied motion filed by adjacentproperty owner and parent seeking leave to amend answer.Tenant, adjacent property owner, and parent appealed. Inconsolidated appeals, the Supreme Court, Appellate Division,76 A.D.3d 225, 904 N.Y.S.2d 392, affirmed in part andreversed in part. Plaintiffs were granted leave to appeal.

Holdings: The Court of Appeals, Ciparick, J., held that:

[1] former New York City Administrative Code provisionrequiring persons performing excavation work more than10 feet below curb level to protect adjoining structuresfrom harm imposed absolute liability on defendants whoseexcavation work caused damage to adjoining property, and

[2] defendants were strictly liable for damage to adjoiningbuilding caused by their excavation work.

Reversed.

West Headnotes (4)

[1] NegligenceViolations of statutes and other regulations

As a rule, violation of a State statute that imposesa specific duty constitutes negligence per se, ormay even create absolute liability; by contrast,violation of a municipal ordinance constitutesonly evidence of negligence.

2 Cases that cite this headnote

[2] NegligenceViolations of statutes and other regulations

Certain sections of the New York CityAdministrative Code have their origin inState law and, as such, they might beentitled to statutory treatment in tort cases;thus, in analyzing whether a violation of anAdministrative Code section should be viewedas negligence per se or some evidence ofnegligence, Court of Appeals considers theorigin of the provision.


[3] Adjoining LandownersDegree of care required and acts

constituting negligence

Former New York City AdministrativeCode provision requiring persons performingexcavation work more than 10 feet below curblevel to protect adjoining structures from harmimposed absolute liability on defendants whoseexcavation work caused damage to adjoiningproperty. New York City Administrative Code,§ 27–1031(b)(1) (2007).




[4] Adjoining LandownersDegree of care required and acts

constituting negligence

NegligenceContractors

Property owner/developer and its excavationcontractor that violated New York CityAdministrative Code provision requiring personsperforming excavation work more than 10 feetbelow curb level to protect adjoining structuresfrom harm were strictly liable for damage toadjoining building caused by their excavationwork; excavation, which was carried to a depthof 18 feet, undermined the foundation of theadjoining building and caused it to lean byapproximately nine inches, resulting in vacateorder issued by Department of Buildings. NewYork City Administrative Code, § 27–1031(b)(1) (2007).


Attorneys and Law Firms

***21 Jaroslawicz & Jaros LLC, New York City (DavidJaroslawicz and David Tolchin of counsel), for Yenem Corp.,appellant.

Weg and Myers, P.C., New York City (Dennis T. D' Antonio,Joshua L. Mallin, William H. Parash and Jonathan C. Corbettof counsel), for Randall Co. LLC, appellant.

Shafer Glazer, LLP, New York City (David A. Glazer andMika M. Mooney of counsel), for respondents.

Molod Spitz & DeSantis, P.C., New York City (MarcySonneborn and Alice Spitz of counsel), for third-partyrespondent.

Michael A. Cardozo, Corporation Counsel, New York City(Margaret G. King and Spencer Fisher of counsel), for Cityof New York, amicus curiae.

*486 OPINION OF THE COURT

CIPARICK, J.

**392 On this appeal, we consider whether formerAdministrative Code of the City of **393 ***22New York § 27–1031(b)(1) imposes absolute liability ondefendants whose excavation work caused damage toadjoining property. We hold that it does, and that plaintiffsare entitled to summary judgment.

Plaintiff Randall Co. (Randall) is the owner of a landmarkcast iron and masonry building located at 287 Broadway in*487 Manhattan. Plaintiff Yenem Corp. (Yenem) was a

commercial tenant operating a pizzeria in the building. In2006, defendant The John Buck Company (JBC) throughits subsidiary, defendant 281 Broadway Holdings LLC (281Broadway Holdings), purchased the lot adjacent to the southand west sides of 287 Broadway and began developing anL-shaped commercial and condominium complex. JBC and281 Broadway Holdings hired defendant Hunter–Atlantic,Inc. (Hunter–Atlantic) to excavate the site. The excavationoccurred at a depth of 18 feet below curb level. Asthe excavation progressed, 287 Broadway shifted out ofplumb, tilting out of verticality. On November 28, 2007,the Department of Buildings (DOB) found that the buildingleaned to the south by approximately nine inches. Thefollowing day, DOB issued a vacate order deeming thebuilding unsafe for occupancy. As a result, Yenem was forcedto close its business, and Randall's building remains vacant.

Yenem commenced an action against JBC, 281 BroadwayHoldings and Hunter–Atlantic claiming that defendants werenegligent and strictly liable under Administrative Codeof the City of New York § 27–1031(b)(1) for causingdamage to 287 Broadway, resulting in the loss of Yenem'sbusiness. Randall commenced a separate action against JBC

and 281 Broadway Holdings 1 asserting similar claims.Hunter–Atlantic cross-claimed against its codefendants andasserted third-party claims against various subcontractors andengineering companies.

Randall moved for partial summary judgment against JBCand 281 Broadway Holdings seeking lost rent and otherdamages, and Yenem moved for summary judgment againstall defendants. JBC and 281 Broadway Holdings opposedplaintiffs' motions and cross-moved for summary judgmentagainst Hunter–Atlantic. In support of their respectivesummary judgment motions, plaintiffs submitted, amongother things, a letter and affidavit of managing agents of 281Broadway Holdings and a report by defendants' structuralengineers, all of which stated that 287 Broadway shiftedincreasingly out of plumb during the course of defendants'



excavation work despite defendants' various remedial efforts.Specifically, one of defendants' engineers stated that “[t]hemovement of the building during excavation was caused bysettlement due to undermining of the existing footings and aloss of soil under the footing.”

*488 In the Yenem action, Supreme Court denied Yenem'smotion for summary judgment with leave to renew at the closeof discovery. The court found that violation of AdministrativeCode of the City of New York § 27–1031(b)(1) did not resultin strict liability but constituted some evidence of negligence.The court also found potential factual issues regarding theproximate cause of the building's movement. In the Randallaction, however, a different Supreme Court justice grantedRandall's motion for partial summary judgment and denieddefendants' cross motion in its entirety. The court held thatdefendants **394 ***23 were strictly liable under section27–1031(b) (1).

In consolidated appeals, a divided Appellate Division upheldthe order denying plaintiffs motion for summary judgmentin the Yenem action and reversed the order granting plaintiffsummary judgment in the Randall action (see Yenem Corp. v.281 Broadway Holdings, 76 A.D.3d 225, 231, 904 N.Y.S.2d392 [1st Dept.2010] ). The court rejected plaintiffs' argumentthat because section 27–1031(b)(1) was originally enacted asa state law imposing absolute liability, it should continue to beso construed (see id. at 228–229, 904 N.Y.S.2d 392). CitingElliott v. City of New York, 95 N.Y.2d 730, 724 N.Y.S.2d 397,747 N.E.2d 760 (2001), the Appellate Division found that asa municipal ordinance, the code provision was an “unsuitablecandidate for elevation to the status of a state statute imposingper se negligence or absolute liability” (Yenem Corp., 76A.D.3d at 230, 904 N.Y.S.2d 392). The court further heldthat plaintiffs failed to demonstrate that “defendants' actionswere the proximate cause of the damage to the building or thatthe precautions taken by defendants in connection with theexcavation were inadequate” (id. at 231, 904 N.Y.S.2d 392).

Two justices dissented on the ground that section 27–1031(b)(1), having its origins in state law, imposes strict liabilitywhere a plaintiff demonstrates that a violation of the provisionproximately caused injuries to the plaintiff's property (see id.at 233, 904 N.Y.S.2d 392). The dissent opined that Elliottexpressly recognized that a local law with state law originscould invoke statutory treatment and, providing a thoroughreview of the provision's legislative history, concluded thatsection 27–1031(b)(1) fit that rule “to the proverbial tee” (id.at 237, 904 N.Y.S.2d 392). The dissent further concluded

that defendants violated the code provision; that the building'sprior condition was irrelevant to the issue of proximate cause;and that, as a strict liability provision, section 27–1031(b)(1) did not permit an affirmative defense of reasonableprecautions (see id. at 242–245, 904 N.Y.S.2d 392).

*489 The Appellate Division granted plaintiffs leave toappeal, certifying the following question to us: “Was thecorrected decision and order of this Court, which affirmedthe order of the Supreme Court entered September 18, 2008,and reversed an order of said Court entered January 29, 2009,properly made?” We now reverse and answer the certifiedquestion in the negative.

[1] [2] “As a rule, violation of a State statute that imposesa specific duty constitutes negligence per se, or may evencreate absolute liability. By contrast, violation of a municipalordinance constitutes only evidence of negligence” (Elliott,95 N.Y.2d at 734, 724 N.Y.S.2d 397, 747 N.E.2d 760[citations omitted] ). We have “however, acknowledge[d] thatcertain sections of the Administrative Code have their originin State law and, as such, they might be entitled to statutorytreatment in tort cases” (id. at 736, 724 N.Y.S.2d 397,747 N.E.2d 760 [citation omitted] ). Thus, “[i]n analyzingwhether a violation of [an] Administrative Code sectionshould be viewed as negligence per se or as some evidence ofnegligence, we consider the origin of [the] provision” (id. at733, 724 N.Y.S.2d 397, 747 N.E.2d 760).

[3] Former Administrative Code of the City of New York §

27–1031(b)(1) 2 provides:

***24 **395 “When an excavation is carried to a depthmore than ten feet below the legally established curb levelthe person who causes such excavation to be made shall,at all times and at his or her own expense, preserve andprotect from injury any adjoining structures, the safety ofwhich may be affected by such part of the excavation asexceeds ten feet below the legally established curb levelprovided such person is afforded a license to enter andinspect the adjoining buildings and property.”The provision originated from an 1855 special law (seeN.Y. Const., art. IX, § 3[d][4] ) that created a duty toprotect neighboring landowners in “the city and county ofNew–York” and the “city of Brooklyn” from harm arisingfrom excavation work where none had existed at commonlaw (L. 1855, ch. 6, § 1). In effect, the statute, as enacted,shifted the burden of protecting against harm from the



landowner to the excavator. In *490 Dorrity v. Rapp, 72N.Y. 307 (1878), we characterized the statute as imposingabsolute liability, stating:

“[t]he primary object of the statute[ ] was to cast upon theparty making an excavation on his land, exceeding tenfeet in depth, the risk of injury resulting therefrom to thewall of an adjoining owner, and the burden of protectingit. The liability imposed is not made to depend uponthe degree of care exercised by the person making theexcavation. When the facts bring the case within thestatute, the duty and liability which the statute imposesis absolute and unqualified ” (id. at 311 [emphasisadded] ).

The original statute was subsequently reenacted under theConsolidation Act of 1882 (see L. 1882, ch. 410, § 474). In1899, the law was recodified as a municipal ordinance insection 22 of the New York City Building Code, which, inturn, was later incorporated into the Administrative Codeas section C26–385.0 (a). In 1968, section C26–385.0 (a)was recodified as section C26–1903.1 (b)(1), and in 1985,that section became section 27–1031(b)(1). Even after itsrecodification as a local law, however, New York courtscontinued to treat the provision as a strict liability statute(see Hart v. City Theatres Co., 215 N.Y. 322, 325–326,109 N.E. 497 [1915]; Racine v. Morris, 201 N.Y. 240, 244,94 N.E. 864 [1911]; Post v. Kerwin, 133 App.Div. 404,405–406, 117 N.Y.S. 761 [2d Dept.1909]; Victor A. HarderRealty & Constr. Co. v. City of New York, 64 N.Y.S.2d 310,317–318 [Sup.Ct., N.Y. County 1946] ).

We see no reason to depart from that interpretation inour review of section 27–1031(b)(1). Certainly not everymunicipal ordinance with state law roots is entitled tostatutory treatment, but section 27–1031(b)(1) is unique. Itslanguage and purpose are virtually identical, in all relevant

aspects, to those of its state law predecessors. 3 Indeed, asnoted by the dissent below, “neither the wording nor the**396 ***25 import of the statute was *491 materially

or substantively altered” either upon its recodification as alocal law or in the century thereafter (see Yenem Corp., 76A.D.3d at 239, 904 N.Y.S.2d 392). Even more important,its original purpose of shifting the risk of injury from theinjured landowner to the excavator of adjoining land has

remained constant over the years. To hold that a violation ofthe provision is only “evidence of negligence” would thusdefeat the legislation's basic goal. Though formerly a state lawand now a local ordinance, section 27–1031(b)(1) continuesto embody the specific legislative policy that in New YorkCity those who undertake excavation work, rather than thosewhose interest in neighboring land is harmed by it, should

bear its costs. 4

[4] Finally, we agree with the dissent below that plaintiffsare entitled to summary judgment. Defendants' affidavitsand the report of defendants' engineers expressly state thatthe excavation, carried to a depth exceeding the regulatorythreshold, undermined the foundation of 287 Broadway andcaused it to lean southward. The majority below erred infinding that the building's allegedly poor condition raisedan issue of fact as to causation; though certainly relevantto any measure of damages, consideration of the building'sprior condition does not factor into a proximate cause analysisunder section 27–1031(b)(1).

Accordingly, the order of the Appellate Division shouldbe reversed, with costs, in Yenem Corp. v. 281 BroadwayHoldings, plaintiff's motion for summary judgment on theissue of liability granted, in Randall Co., LLC v. 281Broadway Holdings, the order of Supreme Court reinstated,and the certified question answered in the negative.

Chief Judge LIPPMAN and Judges GRAFFEO, READ,SMITH, PIGOTT and JONES concur.Order reversed, with costs, in Yenem Corp. v. 281 BroadwayHoldings, plaintiff's motion for summary judgment on theissue *492 of liability granted, in Randall Co., LLC v. 281Broadway Holdings, order of Supreme Court, New YorkCounty, reinstated, and certified question answered in thenegative.

All Citations

18 N.Y.3d 481, 964 N.E.2d 391, 941 N.Y.S.2d 20, 2012 N.Y.Slip Op. 01096

Footnotes1 The complaint also named “John Doe,” “Jane Doe,” and “XYZ Corporation” as the contractors hired by defendants to

perform the excavation work.



2 Section 27–1031(b)(1) was repealed effective July 1, 2008 and its equivalent provision is now contained in the New YorkCity Construction Code (Administrative Code, tit. 28, ch. 33, § 3309.4). We do not pass on that provision, as it is notbefore us on this appeal.

3 In 1882, the law provided:“Whenever excavations, for building or other purposes, on any lot or piece of land in the city and county of NewYork, shall be intended to be carried to the depth of more than ten feet below the curb, and there shall be any partyor other wall, wholly or partly on adjoining land and standing upon or near the boundary lines of such lot, the personcausing such excavations to be made ... shall at all times from the commencement until the completion of suchexcavations, at his own expense, preserve such wall from injury, and so support the same by a proper foundationthat it shall remain as stable as before the excavations were commenced” (L. 1882, ch. 410, § 474).

4 We note that we have previously given elevated treatment to local ordinances derived from special laws, finding thatthey reflect the “policy of the state” and, in some circumstances, may even override a conflicting state law embodyinga countervailing public policy (see Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v. New York State Pub.Empl. Relations Bd., 6 N.Y.3d 563, 576, 815 N.Y.S.2d 1, 848 N.E.2d 448 [2006] [holding that the state policy embodiedin Administrative Code § 14–115(a), which reserves authority over police disciplinary matters to the New York City PoliceCommissioner, is “so important that the policy favoring collective bargaining (implemented by the Taylor Law) shouldgive way”] ).

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

401 Broadway Bldg. LLC v. 405 Broadway Condominium, 2014 WL 3853846 (2014)


2014 WL 3853846 (N.Y.Sup.) (Trial Order)Supreme Court, New York.

New York County

In the Matter of the Application of 401 BROADWAY BUILDING LLC, Petitioner,For an Order pursuant to § 881 or the Real Property Actionsand Proceedings Law, for access to the adjoining property,

v.405 BROADWAY CONDOMINIUM and Rafi Gibly, Respondents.

No. 156033/13.July 28, 2014.

Trial Order

Present: Debra A. James, Justice.

Motion Date: _____

Motion Seq. No: 003

*1 The following papers, numbered 1 to 3 were read on this order to show cause for access pursuant to RPAPL § 881________________

PAPERS NUMBERED

Order to Show Cause/Petition/Affidavits -Exhibits ________

1

Answering Affidavits - Exhibits ________________

2

Replying Affidavits - Exhibits ________________

3

Cross-Motion: Yes X No

ORDERED that the Order of August 8, 2013 in this action is VACATED, RESETTLED AND CORRECTED AS FOLLOWSPURSUANT TO CPLR 5019. See Kiker v Nassau County, 85 NY2d 879 (1995).

Upon the foregoing papers it is ordered that the petition for a license pursuant to RPAPL § 881 is granted. Moskowitz v PavariniMcGovern, LLC, 83 AD3d 438 (1st Dept 2011) is inapplicable to the instant proceeding on the question of fees as Moskowit,involved the enforcement of a license pursuant to a settlement agreement, and not access pursuant to RPAPL § 881. Matter ofRosma Dev, LLC v South, 5 Misc 3d 1014(A) (Kings County Supreme Court 2004) is distinguishable on its facts as the Rosmapetitioner sought voluntarily to erect a structure abutting respondent's premises, rather than to conduct work mandated by law.The matter at bar is practically on all fours with 10 E End Ave Owners, Inc v Two E End Ave Apt Corp, 35 Misc3d 1215(A) (NewYork County Supreme Court 2012), as such case, as here, involved the prosecution of work in compliance with petitioner'sobligations under New York City Local Law 11. As in 10 E End Ave Owners, Inc, this court finds that fees are not warrantedin connection with petitioner's application for a license to carry out the emergency work in compliance with Local Law 11.

http://www.westlaw.com/Link/Document/FullText?findType=h&pubNum=176284&cite=0108443301&originatingDoc=I73086a2c1de311e49488c8f438320c70&refType=RQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Keycite)

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000130&cite=NYRAS881&originatingDoc=I73086a2c1de311e49488c8f438320c70&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Keycite)

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000059&cite=NYCPS5019&originatingDoc=I73086a2c1de311e49488c8f438320c70&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Keycite)

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1995072207&pubNum=605&originatingDoc=I73086a2c1de311e49488c8f438320c70&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Keycite)









401 Broadway Bldg. LLC v. 405 Broadway Condominium, 2014 WL 3853846 (2014)


Accordingly, it is hereby

ORDERED that petitioner is granted a license, pursuant to RPAPL § 881, to enter upon a portion of respondent's building,known as 405 Broadway, New York, New York, specifically respondent's roof, for the limited purpose of (i) placing protectivecovering on the roof of respondent's building, to protect the respondent's roof, including but not limited to the skylight thereonand (ii) erecting scaffolding that will be attached to the side of petitioner's building, known as 401 Broadway, New York, NewYork, each in order to allow petitioner to carry out required emergency Local Law 11 repairs to the facade and copper roof ofpetitioner's building in a manner that ensures the safety of all persons and property, which shall be conducted in accordancewith the Work Permits issued by the New York City Department of Buildings and the customary and standard practices usedin the building exterior facade industry as certified by an architect licensed in the State of New York and retained by petitioner;and it is further

*2 ORDERED that the grant of this license is subject to the following terms and conditions: petitioner shall (1) be entitled tosuch license for a period up to no later than April 1, 2014, the expiration date set forth in Work Permit Number 1400-2664-01-EQ-OT issued by the New York City Department of Buildings, commencing upon the entry of this order or as soon as the weatherpermits as certified by the licensed architect, whichever is later; (2) not unreasonably interfere with respondent's necessaryaccess to its fire escape or chimney, and take the necessary steps, measures, and precautions to prevent and avoid any damage torespondent's building, including but not limited to the roof, skylight or balcony of non party unit owner Paolo Maldini; (3) notifyrespondent in writing when it has completed the work under the license; (4) upon the completion of the term of the license,return respondent's building within such license area to its original condition, and remove all materials used in constructionand any resultant debris from the license area; (5) save respondent harmless from any damages occurring within the licensearea for the term of this license; (6) procure and maintain during the period of this license a policy of liability insurance inan amount and within limits set forth in the Certificate of Liability dated June 28, 2013 appended to the herein petition whichnames respondent as additional insured; (7) be held liable to respondent for any damages which respondent may suffer as aresult of the granting of this license and repair all damaged property at the sole expense of petitioner.

A hearing shall be held before this court at the expiration of the term of the license granted herein to determine the actual damagesincurred by respondent as the result of petitioner's entry upon respondent's building pursuant to this license. Alternatively,respondent may submit any present or future claim for damages directly to petitioner's insurer, without prejudice to its rightsto later seek damages before the court.

Petitioner and respondent may agree in writing to any other terms and conditions, including but not limited to jointly causinga photographic survey of the license area ‘and its environs to be conducted as a record of the license area prior to petitioner'scommencement of the work under this license. This is the decision and order of the court.

Dated: July 28, 2014

ENTER:

<<signature>>

J. S.C.



Cases Awarding Varying License Fees (For Profit Adjoining Developments)

N. 7-8 Invs., LLC v. Newgarden, 43 Misc. 3d 623, 634, 982 N.Y.S.2d 704, 713-14

(Sup. Ct., Kings Co. 2014) (Saitta, J -- $3,500.00 per month for a one year

license); Snyder v. 122 East 78th Street NY LLC, 2014 WL 6471483, *10-11 (Sup.

Ct., N.Y., 2014) (Mills J. -- granting a license fee of $3,000.00 per month to be

increased substantially if work not completed within four months);

Ponito Residence LLC v. 12th St. Apartment Corp., 38 Misc. 3d 604, 613, 959

N.Y.S.2d 376, 384 (Sup. Ct., N.Y. 2012)(Madden, J. -- $1,500.00 per month for

five months);

CRP/Extell 99 West Side L.P., v. 808 West End Avenue, LLC, N.Y. County Index

No. 117094/2005 (Jan. 13, 2006 N.O.R.) (Lippmann, J. -- $2,000.00 per month for

fourteen months);

Rosma Dev. LLC v. South, 5 Misc.3d 1014(A), 798 N.Y.S.2d 713 (Sup. Ct.,

Kings, 2004) (Schmidt J. -- $2,500.00 per month per each of two buildings for

twelve months).

Cases Awarding Varying License Fees (For LL 11 Work)

401 Broadway Bldg. LLC v. 405 Broadway Condominium, 2014 WL 3853846 (N.Y.Sup. 2014) (NO FEE); 10 E. End Ave Owners, Inc. v. Two E. End Ave Apartment Corp., 35 Misc. 3d 1215(A), 951 N.Y.S.2d 84 (Sup. Ct. 2012), (NOR) (Sup. NY. 2012)(NO FEE) Pinto Residence, LLC v. 12th Street Apartment Corp., 2014 WL 3977720, at *3 (Sup. Ct., N.Y., 2014) (Mendez, J. -- $1,750.00 per month for Local Law 11 work); MK Realty Holding, LLC v. Scneider, 39 Misc.3d 1209(A), 971 N.Y.S.2d 72 (Sup. Ct., Queens, 2013) (Agate, J. -- $1,000.00 one-time fee for allowing petitioner to conduct façade repairs for no more than 15 days).

3/28/2016

1

EASEMENTS – ACCESS AND TITLE INSURANCE

April 4, 2016

Jack FeirmanVice President and Senior Underwriting Counsel

Old Republic National Title Insurance Company/

Lex Terrae Ltd.

Old Republic InternationalAbout Our Parent

• We are owned by Old Republic International

• One of the nation’s 50 largest publicly held insurance organizations

• Traded on the New York Stock Exchange, member of the Fortune 500

• 34 consecutive years of dividend growth (1981)

• 74 years on uninterrupted cash dividend payments (1941)

• Consolidated assets just shy of $17 billion and over $3.9 billion in shareholders’ equity

• Managed for the long run

3/28/2016

2

Balance Sheet Comparisons

Consolidated GAAP as of 12/31/2014

ORI Fidelity 1st Amer Stewart

Assets $17.0 $14.8 $7.4 $1.4

Reserves & Equity $13.0 $8.7 $3.6 $1.2

$0.0

$2.0

$4.0

$6.0

$8.0

$10.0

$12.0

$14.0

$16.0

$18.0

$'s in

Billions

By Underwriting FamilyTitle Industry Market Share

Per ALTA statistics based on total premiums written.

45.3%

32.4%

29.1%

27.9%

5.6%

14.7%

12.6%

12.7%

7.4%12.3%

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

2008 2014

Regionals

Stewart

Old Republic

1st American

Fidelity

3/28/2016

3

Shows premiums written by year on policies in excess of $2.5 million in liability for Old Republic National Title Insurance Company.

Commercial GrowthPremiums on Policies Over $2.5 Million

$41.1

$71.2

$115.0

$140.4

$195.9

$249.8

$0.0

$50.0

$100.0

$150.0

$200.0

$250.0

2009 2010 2011 2012 2013 2014

$'s in

Millions

DEFINITION OF EASEMENT

• What is an Easement?

• An easement is a limited right to use anotherperson's land for a stated purpose.

3/28/2016

4

EXAMPLES OF EASEMENTS

• Examples of easements include

– roads and paths

– driveways

– railroad tracks or electrical wires

– utility lines

TYPES OF EASEMENTS: APPURTENANT

• Types of Easements• Easement Appurtenant.

– An easement appurtenant is an easement that benefits one or parcelsof land (dominant estate(s) or parcel(s)) and burdens another(servient estate or parcel

– Easements appurtenant run with the land– There is privity of estate– Easements appurtenant are interests in real property– Easements appurtenant are not transferred with deeds or other

conveyances• The rights and obligations pursuant to such easements remain irrespective of

the ownership or other possessory interests in the properties• The rights and obligations under easements appurtenant benefit and burden

the respective owners of the dominant and servient parcels.

3/28/2016

5

EXAMPLE OF EASEMENT APPURTENANT

– Example: A, the owner of Blackacre, grants B,the owner of Whiteacre, an easement to permitthe owner of Whiteacre and his successors andassigns, to cross Blackacre. The grant recitessufficient consideration and further recites that itruns with the land.

TYPES OF EASEMENTS: IN GROSS

• Easement in Gross

– An easement in gross benefits a person or entity,rather than a parcel of land. The transfer of theeasement beneficiary’s rights in and to theeasement may not vest any right in and to theeasement to the assignee. If an enforceable rightis transferred, it is by virtue of the specificassignment of a personal right. There is no privityof estate.

3/28/2016

6

EXAMPLES OF EASEMENTSIN GROSS

– Example: A, the owner of Blackacre, grants B, the owner ofWhiteacre, an easement to permit the owner of Whiteacre butnot necessarily his successors and assigns, to cross Blackacre.The grant recites sufficient consideration but does not recitethat it runs with the land.

– Example: A, the owner of Blackacre, grants B, the owner ofWhiteacre, an easement to permit the owner of Whiteacre andhis successors and assigns, to cross Blackacre but requires A’sconsent to any assignment. The grant recites sufficientconsideration but does not recite that it runs with the land.

– Example: A, the owner of Blackacre, grants B, the owner ofWhiteacre, the right to run a pipeline across Blackacre from B’soil storage facility on Whiteacre. The document creating thisright permits transfers only with A’s consent.

CREATION OF EASEMENTS

• Creation of Easements

• Easements may be:

–Express,– Implied or

–Prescriptive

3/28/2016

7

EXPRESS EASEMENTS

• Express Easements. Express easements are created by a written document.

– by mutual agreement between landowners;

– by a unilateral granting or reservation in a deed or other instrument as part of a conveyance.

IMPLIED EASEMENTS

• Implied Easements.– An implied easement may be created only when two parcels of land were at one time treated

as a single tract, or owned by a common owner (unity of title).• Note that common grantor does not mean common source of title.• Common owner in this context means owner of parcels who conveyed out to the claiming owner, so an owner

of 2 or more parcels who acquired title from a common owner who restricted the properties or as a result ofhis ownership caused an implied easement to be granted can convey out without regard to the easement. Kornv. Campbell, 192 N.Y. 490; 85 N.E. 687 1908).

– Easements appurtenant may arise by implication.– Easements in gross may not arise by implication– Implied easement pertains only to the use to which the premises to be burdened were being

used at the time of the division of the parcels.– An easement by necessity is a form of implied easement may arise if the easement is

necessary (not merely convenient) for the use and enjoyment of one parcel that had been partof a larger plot with respect to which the easement is claimed. The easement by necessitycomes into effect when one parcel of land is sold and one or more remaining parcel(s) is or aredeprived thereby of a required access to, for example, a public road or utility.

• “It is arguable that plaintiff also established the elements of an easement by necessity byshowing that, in addition to unity of title, at the time of severance the easement wasabsolutely necessary to obtain access to the landlocked parcel.” (Stock v Ostrander, 233AD2d 816 (3d Dept. 1996); Astwood v Bachinsky, 186 AD2d 949 (3d Dept. 1992).(Emphasis added)

3/28/2016

8

IMPLIED EASEMENTS

• Easements By Implication From Preexisting Use

– To establish an easement by implication frompreexisting use, a claimant must prove threeelements:

• Unity of title followed by a subsequent separation of title;

• That prior to the separation of title, the claimed easementhad been used for so long and in such an obvious orapparent manner as to demonstrate it was meant to bepermanent; and

• That the use is necessary for the beneficial use andenjoyment of the property retained.

IMPLIED EASEMENTS (FILED MAPS I)

• When property is conveyed with reference to a filed map showing streets abutting the property conveyed, an easement in the private street so shown passes with the conveyance. DeRuscio v. Jackson, 164 A.D.2d 684 (3d Dept. 1991).

3/28/2016

9

IMPLIED EASEMENTS (FILED MAPS II)

• Where a developer of land sells lots with reference to a map on which squares or parks or beaches are designated and representations are made by the developer that such parks or squares or beaches are for the use of the lot owners, the purchasers of such lots acquire an easement in such parks, squares or beaches by implication and representation.Wilkinson V. Nassau Shores, 1 Misc.2d 917, 86 N.Y.S.2d 603 (Sup. Ct. Nassau Co. 1949), affd 304 N.Y. 614, 107 N.E. 614, 107 N.E.2d 93 (1952).

IMPLIED EASEMENTS (FILED MAPS EXAMPLE)

3/28/2016

10

STATUTORY EASEMENTS LIGHT AND TELEPHONE

• Real Property Law• §335‐a, The owner of any lot, plot, block, site or other parcel of real estate being a

subdivision or part of a subdivision of any larger parcel or parcels of real propertyshown upon a map of said parcel or parcels of real property and of its subdivisionor subdivisions, filed in the office of the county clerk or of the register of deeds ofthe county where the property is situated, prior to the sale or conveyance of suchlot, plot, block, site or other parcel, or subdivision thereof by the seller thereof,upon which map any road or street is indicated or shown as giving access to oregress from any public road or street to such lot, plot, block, site or other parcel ofreal estate thereon indicated or to any part thereof, sold or granted after suchfiling, and the owner of any lot, plot, block, site or other parcel of real estate, theconveyance whereof shall specifically give the right of access to or egress from thesame by any private road or street over lands belonging to the maker of suchconveyance and which road or street is described in such conveyance, may, whennecessary to the enjoyment of the lot, plot, block or site or other parcel of realestate so sold or conveyed and when the same is not bounded by a public road,lay, beneath the roads or streets indicated and shown upon such map or describedin such conveyance as giving access to or egress from any public road to suchproperty so sold or conveyed as aforesaid, wires and conduits for the purpose ofsupplying the said property with electric light and telephone service.

•

FILED MAP (ROADS)

3/28/2016

11

PRESCRIPTIVE EASEMENTS

• Prescriptive Easements.– Prescriptive easements, also known as easements byprescription, arise if an individual has used an easement ina certain way for a certain number of years. In most states,a prescriptive easement will be created if the individual'suse of the property meets the following requirements:

• The use is open and notorious, i.e. obvious and not secretive.• The individual actually uses the property.• The use is continuous for the statutory period ‐ typically between 5and 30 years (10 years in New York).

• The use is adverse to the true owner, i.e. without the owner'spermission and

• Under claim of right.

ADVERSE POSSESSION DEFINEDRPAPL §501

Real Property Actions and Proceedings Law

§ 501. Adverse possession; defined. For the purposes of this article:

1. Adverse possessor. A person or entity is an "adverse possessor" of real propertywhen the person or entity occupies real property of another person or entity with orwithout knowledge of the other's superior ownership rights, in a manner that would give theowner a cause of action for ejectment.

2. Acquisition of title. An adverse possessor gains title to the occupied real propertyupon the expiration of the statute of limitations for an action to recover real propertypursuant to subdivision (a) of section two hundred twelve of the civil practice law and rules,provided that the occupancy, as described in sections five hundred twelve and five hundredtwenty‐two of this article, has been adverse, under claim of right, open and notorious,continuous, exclusive, and actual.

3. Claim of right. A claim of right means a reasonable basis for the belief that the propertybelongs to the adverse possessor or property owner, as the case may be. Notwithstanding anyother provision of this article, claim of right shall not be required if the owner or owners of thereal property throughout the statutory period cannot be ascertained in the records of the countyclerk, or the register of the county, of the county where such real property is situated andlocated by reasonable means.

•

3/28/2016

12

CLAIM OF RIGHT

• “Defendants argue that there is no claim of right when theadverse possessor has actual knowledge of the true ownerat the time of possession. However, longstanding decisionallaw does not support this position. … Conduct will prevailover knowledge, particularly when the true owners haveacquiesced in the exercise of ownership rights by theadverse possessors. The fact that adverse possession willdefeat a deed even if the adverse possessor hasknowledge of the deed is not new.” Children's MagicalGarden, Inc. v. Norfolk Street Development, LLC, S&HEquities (NY), Inc., Serge Hoyda, and 157, LLC, 2015 N.Y.Misc. LEXIS 4288; 2015 NY Slip Op 32227(U) (Emphasisadded)

•

PRESCRIPTIVE EASEMENTSTOLLING STATUTORY PERIOD

• Sitting on one’s rights may be fatal to a claim against anadverse possessor even when the facts may show fraudor other effort to withhold information from thelandowner.

• Humbert et al, and The Rector, Church‐Wardens &Vestrymen of Trinity Church in The City of New York, 24Wend. 587; 1840: The court held that fraud was notone of the exceptions noted in the statute as tolling it,holding that the trial court was proper in dismissing theaction as time barred because the possessors adverselypossessed the land for over 20 years.

3/28/2016

13

THIRD PARTIESSTRANGER TO THE DEED

• Stranger to the Deed Doctrine:

Owner, having already conveyed an adjoining parcel, could

not "reserve" in the deed, upon the sale of the remaining parcel, an express easement appurtenant over the previously conveyed adjoining parcel for the benefit of the grantee of the remaining parcel. Estate of Thomson v. Wade, 69 NY2d 570, 509 N.E.2d 309, 516 NYS2d 614 (1997).

INSURING EASEMENTS

• Insuring Easements

• Title insurance is not a guarantee of theenforceability of contractual rights but ofownership and marketability of interests inreal estate.

3/28/2016

14

INSURANCE LAW §6401

Insurance Law

• §6401 Definitions. In this article, the following definitions apply except as otherwise specified:

(a) "Title insurance corporation" means a corporation exercising anyof the powers described in paragraph one or two of subsection (b) ofsection six thousand four hundred three of this article.

(b) "Title insurance policy" means any policy or contract insuring orguaranteeing the owners of real property and chattels real and otherpersons interested therein, or having liens thereon, against loss by reasonof encumbrances thereon and defective titles. (Emphasis added)

UNDERWRITING EASEMENTS

• Underwriting Standards

– Easement Must Be Appurtenant

• Licenses, profits a prendre, and easements in gross are generally uninsurable.

• Exception will be made for easements in gross based on several criteria

• Prior transfers without consent

• Type of use

• Use of permanent improvements

3/28/2016

15

RECORDING EASEMENTS REQUIREMENTS FOR INSURANCE

– Easement instrument must be in recordable form and contain the following basic terms

• Grantor• Grantee• Granting cause describing the interest being conveyed• Consideration• Proper legal description or other specific information identifyinglocation (e.g., map with calls delineated and easement areaidentified)

• Description of dominant parcel• Description of servient parcel• Statement that easement runs with the land or other indicia ofintent to run with the land as recognized by local law (e.g.,successors and assigns provision)

AFFIRMATIVE INSURANCE

• Affirmatively Insuring Easements Appurtenant– Use of “Together with” language in the deedconveying the property to which the easement isappurtenant and including that description inSchedule A to the title insurance policy

– Identifying the easement as a separate parcel inSchedule A

– To have insurance the policy must specifically insurethe easement as the insured premises or part thereof

• If not so identified in Schedule A, easement may exist but itis not insured

3/28/2016

16

APPURTENANCE CLAUSE

• The Appurtenance Clause is sufficient to convey the rights in and to an easement without identifying the easement.

PURPOSE

– Specific Purpose

• The easement must have been created for a specificpurpose (driveway, ingress and egress, party wall, etc.).A plain or nonspecific purpose easement is animpossibility.

• The purpose of the easement, as stated in theeasement grant, must be made a part of the easementdescription.

3/28/2016

17

EXCLUSIVITY (OR NOT)

– Exclusive or Nonexclusive

• Exclusivity, if claimed, must have been specificallystated in the instrument that created the easement.

• In any other case, the easement must be referred to asa nonexclusive easement and rights (or possible rights)of others will be excepted.

CHANGE OF CIRCUMSTANCES AFFECTS INSURABILITY

– Change of Circumstances (Overburdening)

• Access granted originally to one parcel may becomeunenforceable if the dominant parcel has since beensubdivided

• Easement may become unenforceable if use of thedominant parcel has changed so as to increase use ofthe easement to an extent not intended

• Title company must review the circumstances of theeasement’s grant and current use

3/28/2016

18

WRITTEN INSTRUMENT

– Written Instrument

• All owners of the servient parcel must execute theinstrument.

• If there is a lien (e.g., a mortgage) on the servientparcel, lien holder must join in the instrument or grantits consent in recordable form.

• Written instrument of record is insurable.

ADDITIONAL CHAINS SEARCHES

– Separate Chains

• To insure an easement appurtenant, title to eachservient parcel must be searched

• Appropriate exceptions will be raised based oncircumstances (e.g., real estate taxes, mortgages)

3/28/2016

19

PROPER RECORDING

• Record against the servient parcel.

• A bona fide purchaser for value without knowledge may take free of the easement if the easement does not appear in the chain of title for that parcel.

WHWWHEN ADDITIONAL SEARCH REQUIRED

• It is not necessary (no duty) to search all the chains of title out of a common grantor.

• There must be an independent reason to search other titles to determine whether a parcel is subject to an easement.

3/28/2016

20

POLICY EXCEPTIONS

– Exceptions• Policy will except or exclude from coverage the terms of the easement instrument

– Insurance is not intended to assure the insured that the easement has not been violated– Only that a right exists)– Insured has obligation to determine the conditions upon which the right may be exercised or

has been violated» For example, the servient estate’s owner is not prohibited from using the easement area

in a fashion not inconsistent with the purpose for which the easement was granted.Herman v. Roberts, 119 N.Y. 37; 23 N.E. 442 (1890).

• Although perpetual, an easement may be terminable for breach of covenants oroverburdening or occurrence of some contingency

• In the last case, insurance should refer to the easement as potentially temporary• If a violation (unknown) of the easement exists on the effective date of the policy, this

exception exonerates the title company from liability• Policy may except change in state of facts since date of easement grant.• Any unusual burden, qualifications, or restriction contained in the easement grant should

be specifically set forth in Schedule B of the policy, such as by exception to the terms ofthe easement instrument.

RECIPROCAL EASEMENT

– Reciprocal Easement

• If the dominant estate is also a servient estate, anexception will be made in Schedule B of the policy forthe terms of the easement.

3/28/2016

21

RECIPOROCAL EASEMENT - EXAMPLE

INTEREST INSURED

– What is Insured• Easements often contain a multitude of reciprocal obligations and benefits• Insurance will assure that the access right has been granted but not the enforceability of

the terms• Requests to insure the “rights granted under” the instrument should be refused by the

underwriter• Beyond access to the burdened parcel, the other rights are not interests in real property• Location of Easement

– If to be considered, requires certified survey– Title insurance policies do not insure the accuracy of a survey. Title company is relying on the

survey equally with the owner and/or the lender.

• Affirmative insurance as to the location of an easement is generally to be avoided by anunderwriter

• Insurance of an easement does not insure that the actual use will be reasonable.• Policy does not insure that grantor was in compliance with the terms of the easement at

the time of the conveyance– Would consider same with receipt of an estoppel from servient owner but then, why

would insurance be required?– Will usually insure against reversion of title or forfeiture if easement is violated by

insured

3/28/2016

22

INSURING PRESCRIPTIVE EASEMENTS (OR NOT)

– Prescriptive easements generally will not be insured

• Will insure if there is a judgment entered declaring theadverse possessor had title to the easement by adversepossession

• Without a judgment, the risk of litigation mitigatesagainst insuring.

TITLE INSURANCE POLICY

Insurance Policy– New York (TIRSA)

• The Access endorsement insures the lender against loss if the landinsured does not abut upon an identified physically opened street.The policy form, without the endorsement or affirmativeinsurance, only insures a right of legal access to and from the land.

• TIRSA Owner Policy and Loan Policy Covered Risk 4: “No right ofaccess to and from the Land”

• TIRSA Access Endorsement (Loan Policy only) ”The Policy insuresthe Insured against loss which the Insured shall sustain in theevent that the described land does not abut upon a physicallyopen public street known as _______.”

• Street report required• Survey should show public street abutting the insured parcel• $25 charge for the endorsement

3/28/2016

23

ACCESS ENDORSEMENTS (ALTA)

ALTA Coverages– Three Endorsements:

• 17‐06 (does not have actual vehicular and pedestrian access toand from named street(s); street(s) not physically open; no right touse existing curb cuts or entries along portion of the streetabutting the insured premises)

• 17.1‐06 (same as 17‐06, except insures that insures against loss ordamage if specified easement does not provide such access)

• 17.2‐06 (insures against loss or damage by reason of no access tospecified utilities)

• Require– Survey and/or

– Letters from specified utility companies and/or

– Other proof of accounts

ACCESS ENDORSEMENT (TIRSA)

3/28/2016

24

INSURING LOCATION

• Insurance of the location of an easement– Will require a certified survey– Title companies reluctant to insure because they do not want to insure accuracy of a survey map.

– Relocation is an issue.– A grant of an easement does not necessarily mean that it always must remain where indicated

– A landowner had the right to relocate a right‐of‐way easement in the absence of evidence that the parties to its granting intended that it not be relocated, so long as the easement holder's right of ingress and egress was not impaired. Lewis v. Young, 92 N.Y.2d 443; 705 N.E.2d 649; 682 N.Y.S.2d 657 (1998).

LICENSESDEFINITION

• Licenses

• Typical definition:

• A permissive use. Personal right that is revocable andnon‐transferable. Termination at the will of thelicensor. Does not run with the land. A conveyance ofland will ordinarily revoke a license but may not revokean easement. Although a license generally does notcarry any enforceable rights, an easement confersdefinite property rights, which are enforceable againstthe servient estate. Not considered an interest in theland itself.

3/28/2016

25

LICENSES - ATTRIBUTES

• Definition is wrong in many respects:• May be for fixed term.

• May be transferable

• Rights are enforceable

• In a broad sense, they do confer an interest (if not an estate) in real property

ACCESS LICENSESRPAPL §881

Real Property Actions and Proceedings Law

§881. Access to adjoining property to make improvements orrepairs. When an owner or lessee seeks to make improvements orrepairs to real property so situated that such improvements orrepairs cannot be made by the owner or lessee without enteringthe premises of an adjoining owner or his lessee, and permission soto enter has been refused, the owner or lessee seeking to makesuch improvements or repairs may commence a special proceedingfor a license so to enter pursuant to article four of the civil practicelaw and rules. The petition and affidavits, if any, shall state the factsmaking such entry necessary and the date or dates on which entryis sought. Such license shall be granted by the court in anappropriate case upon such terms as justice requires. The licenseeshall be liable to the adjoining owner or his lessee for actualdamages occurring as a result of the entry.

3/28/2016

26

RPAPL §881 LICENSE AFFECTS TITLE

– Typically occurs after owner has acquired title

– Access under Section 881 is not insurable to anowner in New York

– License would be an exception to title inner’spolicy of burdened parcel as would proceeding toenforce such a license

– License is not of right but subject to the discretionof the court and terms are as justice may require

ACCESS AGREEMENT - TERMS

– Typical terms• Compensation for loss of use and enjoyment of property• Fee for license itself• Reimbursement for legal, architectural/engineering fees to review plans and negotiate access agreement or court costs

• Liability/property insurance to be carried and/or indemnity• Term• Property protection• Hours• Cleanup obligations• Means of ingress and egress• Surety bond and/or cash undertaking to assure performance

3/28/2016

27

RPAPL §881 LICENSEAUTHORITY

• “A petition pursuant to RPAPL 881 has certainsimilarities to an eminent domain proceeding. A takingby eminent domain is in effect a forced sale, and alicense pursuant to RPAPL 881 is in essence a forcedgranting of a temporary easement. Even though theprimary beneficiary of both a taking by eminentdomain and a license pursuant to RPAPL 881 may be aprivate party, the rationale for the forced sale or forcedtemporary easement, is the benefit to the public.”Matter of North 7‐8 Invs. LLC (Newgarden) 2014 NY SlipOp 24051 Decided on February 26, 2014 SupremeCourt, Kings County.

TERMINATION OF EASEMENTS

• Termination of Easements• Easements will continue indefinitely unless terminated by

one of the following methods:– Express Agreement. An easement holder and easement owner

may decide by written agreement to terminate the easement.– Abandonment. An easement is abandoned when the easement

holder takes affirmative action to permanently desert theeasement. Non‐use of the easement alone does not qualify asabandonment.

– Merger. Pursuant to the doctrine of merger, an easement isextinguished if the owner of the dominant estate obtains title tothe servient estate.

– Ending by Necessity. An easement by necessity is terminatedwhen there is no further need for the easement.

3/28/2016

28

MEANS OF TERMINATINGEASEMENTS

• “It is the law of this State that an easement created by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession.” Gerbig v. Zumpano, 7 N.Y.2d 327; 165 N.E.2d 178; 197 N.Y.S.2d 161 (1960).

ABANDONMENT

• "Where an abandonment of an easement is relied upon, there must be clear and convincing proof of an intention in the owner to abandon it as such", independent of the mere nonuser (Hennessy v. Murdock, 137 N.Y. 317; see, also, Lewisohn v. Lansing, 119 A.D. 393).

3/28/2016

29

ABANDONMENTTHIRD PARTY ACTS

• Abandonment by non‐use by reason of a third party’s acts will not be implied. Weil et al. v. Atlantic Beach Holding Corporation et al., 1 N.Y.2d 20, 133 N.E.2d 505; 150 N.Y.S.2d (1956).

ABANDONMENTTHIRD PARTY ACTS - EXAMPLE

3/28/2016

30

NON-USE

• “Title [to an easement]is not affected by non‐user, and unless there is shown against him some adverse possession or loss of title in some of the ways recognized by law, he may rely on the existence of his property with full assurance that when the occasion arises for its use and enjoyment he will find his rights therein absolute and unimpaired. Welsh v. Taylor, 134 N.Y. 450, 31 N.E. 896 (1892)

MERGER

• Where the title in fee to both the whole of the dominant and servient estates becomes vested in one person, an easement is extinguished. Will v. Gates, 89 N.Y.2d 778, 680 N.E.2d 1197, 658 N.Y.S.2d 900 ( 1997)

3/28/2016

31

MERGER - INTENT

• Merger is also a matter of intent and may be presumed that intention to merge absent a contrary indication or reason why it would be prejudicial to the owner that the estates be merged and merger may be deduced from all of the circumstances.

Clift v. White. 12 N.Y. 519 (1855); Van Rensselaer's Heirs v. Penniman, 6 Wend. 569 (1831); In re Nochomov, 206 Misc. 290; 132 N.Y.S.2d 720 (Surr. Ct., Kings Co. 1954)

TAX SALES

• Private easements generally are not extinguished by a tax sale if the easement over the servientparcel was acquired to the levying of a tax are not extinguished by a tax sale. Tax Lien Co. of N.Y. v. Schultze, 213 N.Y.2d 9, 106 N.E. 751 (1914); Beeman v. Pawelek, 96 N.Y.S.2d 2014 (Sup. Ct. Steuben Co. 1949), affd 276 A.D. 1057, 96 N.Y.S2d 312 (4th Dept. 1950); Wilkinson V. Nassau Shores, 1 Misc.2d 917, 86 N.Y.S.2d 603 (Sup. Ct. Nassau Co. 1949), affd 304 N.Y. 614, 107 N.E. 614, 107 N.E.2d 93 (1952).

Board of Managers of Artisan Lofts Condominium v. Moskowitz, 114 A.D.3d 491 (2014)

979 N.Y.S.2d 811, 2014 N.Y. Slip Op. 00937


114 A.D.3d 491Supreme Court, Appellate Division,

First Department, New York.

In re The BOARD OF MANAGERS OF ARTISANLOFTS CONDOMINIUM, Petitioner–Respondent,

v.Herbert MOSKOWITZ, et al.,

Respondents–Appellants.

Feb. 13, 2014.


Peluso & Touger, LLP, New York (Robert Moore of counsel),for appellants.

Wolf Haldenstein Adler Freeman & Herz, LLP, New York(Rachael G. Ratner of counsel), for respondent.

Opinion*492 Order, Supreme Court, New York County (Joan M.

Kenney, J.), entered June 6, 2013, which granted petitionera license to enter respondents' adjoining property in order totake steps to protect respondents' property during renovationsto the facade and roof of petitioner's building, unanimouslyreversed, on the law, with costs, the order vacated, the petitiondenied, and the proceeding dismissed.

In determining whether or not to grant a license pursuant toReal Property Actions and Proceedings Law § 881, courts

generally apply a standard of reasonableness (see e.g. Mindelv. Phoenix Owners Corp., 210 A.D.2d 167, 620 N.Y.S.2d359 [1st Dept.1994], lv. denied 85 N.Y.2d 811, 631 N.Y.S.2d287, 655 N.E.2d 400 [1995] ). Courts are required tobalance the interests of the parties and should issue a license“when necessary, under reasonable conditions, and where theinconvenience to the adjacent property owner is relativelyslight compared to the hardship of his neighbor if the license isrefused” (Chase Manhattan Bank [Natl. Assn.] v. Broadway,Whitney Co., 57 Misc.2d 1091, 1095, 294 N.Y.S.2d 416[Sup.Ct., Queens County 1968] ), affd. 24 N.Y.2d 927, 301N.Y.S.2d 989, 249 N.E.2d 767 [1969].

Here, it is clear that petitioner has failed to make a showingas to the reasonableness and necessity of the scaffoldingdevice referenced in the order, a “swing scaffold,” whichwould need to be attached to respondents' building. While theparties agree that a limited license for petitioner to protectrespondents' property is reasonable, they sharply disagreeover the extent of access for any other purpose. Until thatdispute is resolved, the order was premature.

GONZALEZ, P.J., SWEENY, RICHTER, MANZANET–DANIELS, CLARK, JJ., concur.

Parallel Citations

114 A.D.3d 491, 979 N.Y.S.2d 811 (Mem), 2014 N.Y. SlipOp. 00937


http://www.westlaw.com/Search/Results.html?query=advanced%3a+OAID(5040991719)&saveJuris=False&contentType=BUSINESS-INVESTIGATOR&startIndex=1&contextData=(sc.Default)&categoryPageUrl=Home%2fCompanyInvestigator&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem

http://www.westlaw.com/Link/Document/FullText?findType=h&pubNum=176284&cite=0468726901&originatingDoc=I31ee1edf94b411e38914df21cb42a557&refType=RQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.DocLink)

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000130&cite=NYRAS881&originatingDoc=I31ee1edf94b411e38914df21cb42a557&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.DocLink)

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1994253294&pubNum=0000602&originatingDoc=I31ee1edf94b411e38914df21cb42a557&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.DocLink)
















Mindel v. Phoenix Owners Corp., 210 A.D.2d 167 (1994)620 N.Y.S.2d 359


KeyCite Yellow Flag - Negative Treatment Distinguished by McMullan v. HRH Const., LLC, N.Y.A.D. 1 Dept.,

March 1, 2007

Landowners filed actions seeking injunctions to preventneighboring building owner from entering their properties.The Supreme Court, New York County, Cahn, J., convertedactions into proceeding for license to enter property forpurpose of repairing building, and granted license. Appealwas taken. The Supreme Court, Appellate Division, held that:(1) standard of reasonableness applied to issue of whetherbuilding owner took sufficient steps to avoid injuries to beentitled to license; (2) building owner was prepared to doall that was feasible to avoid injuries from its entry uponadjoining properties and, thus, was entitled to license; (3)trial court could convert landowners' actions for injunctionsinto proceeding by building owner to obtain license; and(4) building owner received benefit of proceeding and, thus,would have to bear all costs.

Affirmed as modified.

West Headnotes (4)

[1] LicensesMode of Creation

Standard of reasonableness applied to issue ofwhether building owner took sufficient stepsto avoid injuries from its entry upon adjoiningproperties and whether building owner was

thereby entitled to license allowing entry uponadjoining properties to make repairs to building.McKinney's RPAPL § 881.

Cases that cite this headnote

[2] LicensesMode of Creation

Building owner was prepared to do all thatwas feasible to avoid injuries from its entryupon adjoining properties and, thus, was entitledto license allowing entry in order to makerepairs to building; there was no practical meansof encapsulating adjoining properties to affordabsolute protection against mishap, but buildingowner proposed to use netting to prevent injuryfrom fall of debris, and collapse of scaffoldingwas unlikely. McKinney's RPAPL § 881.


[3] ActionChange of Character or Form

Trial court could convert landowners' actions forinjunctions prohibiting entry of their propertyinto proceeding by building owner to obtainlicense for entry upon adjoining property forpurpose of repairing building, in view of buildingowner's early notice that it was seeking license,presentation of all evidence that would have beenadduced in license proceeding, and substantiveclaims made in support of building owner'sasserted need to enter adjoining properties.McKinney's RPAPL § 881; McKinney's CPLR103(c).


[4] CostsNature and Grounds of Right

Building owner received benefit of proceedingin which it obtained statutory license to enteradjoining property for purpose of making repairsto building and, thus, would have to bear allcosts of proceeding, including referee fees, eventhough action had been initiated by adjoininglandowners to obtain injunctions prohibiting

Mindel v. Phoenix Owners Corp., 210 A.D.2d 167 (1994)620 N.Y.S.2d 359


building owner from entering their properties.McKinney's RPAPL § 881.


**360 Before WALLACH, J.P., and KUPFERMAN,WILLIAMS and TOM, JJ.

Opinion

*167 MEMORANDUM DECISION.

Order and judgment (one paper), Supreme Court, New YorkCounty (Herman Cahn, J.), entered December 14, 1993,which, inter alia, converted plaintiffs' actions for injunctionsprohibiting defendant from entering upon their respectiveproperties into a proceeding by defendant under RPAPL 881,and thereupon granted defendant a limited license to enterupon plaintiffs' properties for purposes of repair work ondefendant's building, unanimously modified, on the law andthe facts and in the exercise of discretion, to impose theReferee's costs on defendant, and otherwise affirmed, withoutcosts.

[1] [2] We agree with the IAS court, and the Referee,whose report it adopted, that the netting proposed bydefendant will be sufficient to prevent injury from the fall ofdebris attendant upon the repair work that needs to be done todefendant's building. The record indicates that the collapse ofscaffolding is generally unlikely, and the risk of such a mishap

is further diminished if the protective devices recommendedby the Referee are incorporated in the cabling; however, thereis no practical means of encapsulating plaintiffs' property toafford absolute protection against such a mishap. We adopta standard of reasonableness in concluding that defendant isprepared to do all that is **361 feasible to avoid injuriesresulting from its entry upon plaintiffs' properties, and that anRPAPL 881 license was therefore properly granted.

[3] The court's conversion of this action, commenced byplaintiffs for injunctive relief, into a proceeding by defendantfor leave to enter plaintiffs' properties for repairs underRPAPL 881, was unusual but proper (CPLR 103[c] ), in viewof (1) defendant's affirmation in opposition to the originalapplication for a preliminary injunction giving early noticethat defendant was seeking relief under RPAPL 881; (2) thepresentation, in what were already protracted proceedings,of all the *168 evidence that would be adduced in anRPAPL 881 proceeding; and (3) the substantive claims madein support of defendant's asserted need to enter plaintiffs'properties.

[4] Because plaintiffs commenced this proceeding anddefendant received the benefit of it being converted by theCourt into an RPAPL 881 proceeding, defendant should bearall costs of the proceeding, including the Referee's fees, andwe so modify.

All Citations

210 A.D.2d 167, 620 N.Y.S.2d 359


North 7-8 Investors, LLC v. Newgarden, 43 Misc.3d 623 (2014)

982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051


43 Misc.3d 623Supreme Court, Kings County, New York.

In the Matter of the Application of NORTH7–8 INVESTORS, LLC, Petitioner,

For an Order and Judgment pursuant toRPAPL § 881 granting Petitioner a license toenter the Adjoining property of, Respondent,

v.Mark A. NEWGARDEN, Respondent.

Feb. 26, 2014.

SynopsisBackground: Property owner petitioned for order grantinglicense to enter adjoining property in order to construct newbuildings on owner's property. Adjoining owner cross-movedto dismiss petition and for sanctions.

[Holding:] The Supreme Court, Kings County, Wayne P.Saitta, J., held that license would be granted to accessadjoining property on terms that justice required.

Petition granted; cross-motion denied.

West Headnotes (14)

[1] LicensesNature and extent of rights

The construction of a new building is an“improvement” of real property within themeaning of the statute governing specialproceedings for property owner to obtainlicense to access adjoining property to makeimprovement or repair to his own real property.McKinney's RPAPL § 881.



Access to adjoining property is deemed“necessary,” as required for a property owner

to obtain license to enter adjoining property tomake improvements or repairs to his own realproperty, even where the access is necessarybecause a building is constructed to theproperty's lot line. McKinney's RPAPL § 881.



Under statute governing special proceedingsfor property owner to obtain license to accessadjoining property to make improvements orrepairs to his own real property, upon suchterms as justice requires in an appropriate case,“such terms as justice requires” extends to thenature and extent of access that is necessary,the duration such access may be necessary,as well as what protections may be necessaryto safeguard the adjoining owner's property.McKinney's RPAPL § 881.


[4] LicensesConstruction and operation in general

On petition for license to access adjoiningproperty to make improvements or repairs topetitioner's own real property, the risks and costsinvolved in the use that a petitioner makes of itsneighbor's property should be wholly borne bythe petitioner. McKinney's RPAPL § 881.



Equity requires that the adjoining ownercompelled to grant access to his property, so thatthe neighboring owner can make improvementsor repairs to his own property, should nothave to bear any costs resulting from theaccess, including steps necessary to safeguardthe adjoining property. McKinney's RPAPL §881.


http://www.westlaw.com/Link/Document/FullText?findType=h&pubNum=176284&cite=0121384701&originatingDoc=I9e21934ca56411e3a659df62eba144e8&refType=RQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)


http://www.westlaw.com/Browse/Home/KeyNumber/238/View.html?docGuid=I9e21934ca56411e3a659df62eba144e8&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)

http://www.westlaw.com/Browse/Home/KeyNumber/238k51/View.html?docGuid=I9e21934ca56411e3a659df62eba144e8&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000130&cite=NYRAS881&originatingDoc=I9e21934ca56411e3a659df62eba144e8&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)

http://www.westlaw.com/Link/RelatedInformation/DocHeadnoteLink?docGuid=I9e21934ca56411e3a659df62eba144e8&headnoteId=203284108300120141217000149&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=CitingReferences&contextData=(sc.UserEnteredCitation)



















982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051



Property owner's access to adjoining propertywas necessary to complete owner's new building,as required to grant owner license to accessadjoining property on such terms as justicerequired, including requiring owner to blockaccess to adjoining owner's deck from secondfloor of new building, to install sufficientnetting above safety balcony on new buildingto prevent tools and material from fallingonto or damaging adjoining owner's garage, topay adjoining owner's reasonable architect feesincurred in reviewing owner's plans, makingcounter proposals, and ongoing monitoring ofwork during term of license, to pay adjoiningowner's reasonable attorney fees incurred innegotiating, reviewing, and drafting agreement,and to pay license fee of $3,500 per month toadjoining owner. McKinney's RPAPL § 881.



An adjoining owner compelled to grant a licensefor access to his property, so that the neighboringowner can make improvements or repairs to hisown real property, should not be put in a positionof either having to incur the costs of an designprofessional to ensure the neighboring owner'swork will not endanger his adjoining property,or having to grant access without being able toconduct a meaningful review of the neighboringowner's plans. McKinney's RPAPL § 881.


[8] CostsAmerican rule; necessity of contractual or

statutory authorization or grounds in equity

Generally, absent a statute authorizing an awardof attorney fees, each side in a litigation mustbear the cost of his or her own attorneys.


[9] CostsAmerican rule; necessity of contractual or

statutory authorization or grounds in equity

Attorney fees and disbursements are consideredincidents of litigation, and the prevailing partymay not collect them from the loser unless anaward is authorized by agreement between theparties, or by statute or court rule.


[10] CostsInjuries to property

LicensesConstruction and operation in general

The statute authorizing grant of a license to aproperty owner to enter adjoining property tomake improvements or repairs on the owner'sproperty, on such terms as justice requires,contains broad language and allows for theflexibility and full scope upon which equitydepends; it is sufficient statutory authority toaward reasonable attorney fees as a conditionof a license, where the circumstances warrant it.McKinney's RPAPL § 881.



If an adjoining property owner is successful inopposing a neighboring owner's petition for alicense to access the adjoining property to makeimprovements and repairs to the neighboringowner's property and no license is granted,then the adjoining owner would not be entitledto attorneys fees for successfully opposing thepetition. McKinney's RPAPL § 881.




In deciding whether justice requires awardingattorney fees, either for negotiating a license










http://www.westlaw.com/Browse/Home/KeyNumber/102k194.16/View.html?docGuid=I9e21934ca56411e3a659df62eba144e8&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)






















982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051


agreement or for opposing a neighboring owner'spetition for a license to access adjoining propertyto make improvements and repairs to theneighboring owner's property, the court mustbalance the equities, by considering the extentto which the access sought interferes with theadjoining owner's use and enjoyment of theproperty, the risks that access poses to theproperty, as well as the complexities whichthe access sought presents in drafting a licenseagreement. McKinney's RPAPL § 881.




Any attorney fees included as a condition of aneighboring owner a license to access adjoiningproperty to make improvements and repairsto the neighboring owner's property should beproportional to the size and scope of the project.McKinney's RPAPL § 881.



Under statute governing special proceedingsfor property owner to obtain license to accessadjoining property to make improvements orrepairs to his own real property, upon suchterms as justice requires, the court can imposeconditions on granting the license, includingposting a bond, obtaining insurance coverage,agreeing to indemnify the adjacent landowner,and paying for the use of the license. McKinney'sRPAPL § 881.



**706 Russell M. Wolfson, Esq., Baritz & Cdeman, LLP,New York, for Plaintiff.

Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York,for Defendants.

Opinion

WAYNE P. SAITTA, J.

*624 Petitioner, NORTH 7–8 INVESTORS, LLC,(hereinafter “ Petitioner”), move this Court for an Orderpursuant to RPAPL § 881 for an Order granting Petitionera license to enter the adjoining property owned by MARKA. NEWGARDEN (hereinafter Respondent”). Respondentcross-moved to dismiss the petition and for sanctions.

Upon reading the Verified Petition for Access to AdjoiningProperty Pursuant to RPAPL 881 by Russell M. Wolfson,Esq., Attorney for Petitioner, NORTH 7–8 INVESTORS,LLC, dated July 3rd, 2013, together with the Affidavit ofTomer Yogev in Support of the Petition, dated July 3rd,2013, and all exhibits annexed thereto; the Notice of Cross–Motion by Melissa T. Billig, Esq., Attorney for Respondent,MARK A. NEWGARDEN, dated July 23rd, 2013, togetherwith the Affirmation of Melissa T. Billig, Esq., in Oppositionto Verified Petition and in Support of Cross–Motion, undated,the Affidavit of MARK NEWGARDEN, sworn to July 232013, the Affidavit of John D. Nakrosis Jr., sworn to July23 2013, and all exhibits annexed thereto; the Memorandumof Law in Opposition and in Support of Cross–Motion ofMelissa T. Billig, Esq., dated July 23rd, 2013; a hearinghaving been held on August 12–14 2013, and September**707 11, and 25, 2013, and October 11, 2013, and after

further argument of counsel on January 24, 2014, and duedeliberation thereon, the Petition is granted upon the termsand conditions set forth below and the cross motion is denied.

FACTS

Petitioner, NORTH 7–8 INVESTORS, LLC, is the owner ofthe property located on Block 2322, Lots 10, 11, 28, and30, in the Northside *625 neighborhood of Williamsburg,Brooklyn. Respondent MARK A NEWGARDEN resides atand is the owner of 18 Havemeyer Street, Brooklyn New York(Block 2322, Lot 18) which abuts part of Petitioner's property.Specifically the rear wall of Respondent's one story garagewhich is on his west property line abuts approximately 25feet of Petitioner's east property line. Petitioner's property isan irregularly shaped parcel that runs the full width of Block



















982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051


2322 from North 7th to North 8th Street and is approximately180,000 square feet.

According to the testimony of Tomer Yogev, Petitioner'sproject manager, the Petitioner is currently developing twoseven story buildings on the property that will contain 159residential units.

Originally, Petitioner sought a license to gain access toRespondent's property to shore Respondents garage, andto place a protective covering on a deck built on top ofRespondent's garage roof, in order to protect the roof deckduring construction of the buildings. Petitioner also soughta license for temporary scaffold that would project intoRespondent's air space in order to allow workers to completeand waterproof the facade of one of the new buildings.

Petitioner sought access to shore the rear wall of Respondent'sgarage because the New York City Department of Buildings(DOB) had made that a condition of lifting a partial stop workorder it had issued, prohibiting work on the area adjacent toRespondent's rear garage wall. This partial stop work orderprevented Petitioner from demolishing a portion of wall onits property that was within a few inches of Respondent's rearwall. Petitioner also sought to install a covering on the topof Respondent's roof deck, as required by DOB, to protectit from an objects that might fall from Petitioner's propertyduring the course of construction.

Respondent and Petitioner engaged in lengthy negotiationsover a license agreement to allow Petitioner access toRespondent's property. In fact, the negotiations were begunby Petitioner's predecessor in interest. Respondent's architectraised several objections to the manner in which the shoringwork was to be done, to the manner in which the roof deckwas to be protected and the lack of completeness or specificityin the plans presented by Petitioner.

Additionally, Respondent seeks reimbursement for hisarchitectural and legal fees incurred in reviewing Petitioner'sproposals. The parties were unable to come to anagreement and Petitioner *626 commenced this proceeding.Respondent cross-moved to dismiss the proceeding and forsanctions pursuant to Rule 130, arguing that he has not deniedaccess but is simply insisting on reasonable protections andconditions for such access. Respondent also argues thataccess is not needed because Petitioner could construct hisbuilding by setting the building back from the shared propertyline.

In response to the objections raised by Respondent's architect,Petitioner modified their plans to reduce the need for access toRespondent's property. The revised plans call for no shoringof Respondent's rear garage wall and for taking down theadjacent **708 wall on Petitioner's property with hand tools.Petitioner also revised its plans so as to no longer requireunderpinning Respondent's building.

Petitioner has modified its proposed roof protection plan sothat it does not have to cover Respondent's roof deck withplywood to protect the roof during the installation of windowsand finishing of the building facade. Also, Petitioner willno longer need to use the deck for access to scaffolding.Under the new proposed plans, Petitioner will construct acantilevered safety balcony at the third floor level of its newbuilding which will project into Respondent's airspace overhis roof deck. The work platform will provide access toa scaffold attached to Petitioner's building. Netting will beinstalled from the building to the safety balcony to protectRespondent's property from any falling material.

Section 881 of the NYS Real Property and Procedures Lawprovides that:

When an owner or lessee seeks to make improvements orrepairs to real property so situated that such improvementsor repairs cannot be made by the owner or lessee withoutentering the premises of an adjoining owner or his lessee,and permission so to enter has been refused, the owner orlessee seeking to make such improvements or repairs maycommence a special proceeding for a license so to enterpursuant to article four of the civil practice law and rules. Thepetition and affidavits, if any, shall state the facts making suchentry necessary and the date or dates on which entry is sought.Such license shall be granted by the court in an appropriatecase upon such terms as justice requires. The licensee *627shall be liable to the adjoining owner or his lessee for actualdamages occurring as a result of the entry.

[1] The construction of a new building is an improvementof real property within the meaning of Section 881. RosmaDevelopment LLC v. South, 5 Misc.3d 1014(A), 2004 WL2590558 (Sup.Ct. Kings Co.2004); Deutsche Bank Trust v.120 Greenwich Development Associates, 7 Misc.3d 1006(A),2005 WL 782810 (Sup.Ct., N.Y. Co.2005).

[2] While Respondent has shown that access to the extentoriginally sought by Petitioner was not necessary in order


http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2005501612&pubNum=0007050&originatingDoc=I9e21934ca56411e3a659df62eba144e8&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.UserEnteredCitation)







982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051


to construct its new building, Petitioner will still requireaccess to Respondent's property to finish that portion of theexterior east wall of the building which abuts the rear wall ofRespondent's garage. Access is deemed necessary even wherethe access is necessary because a building is constructed to thelot line of a property. Sunrise Jewish Center of Valley StreamInc. v. Lipko, 61 Misc.2d 673, 305 N.Y.S.2d 597 (Sup.Nassau,1969).

While the Petition does fail to set forth the dates for whichaccess is sought as required by the language of RPAPL 881,Petitioner has stated that it seeks access for approximatelyone year. There is little purpose in dismissing the Petition onthis ground and requiring Petitioner to bring a new petitionwhen the Court can simply set the duration of the license inits Order.

[3] Section 881 provides that a license shall be granted“upon such terms as justice requires”. Such terms as justicerequires extends to the nature and extent of access that isnecessary, the duration such access may be necessary, aswell as what protections may be necessary to safeguard theadjoining owner's property.

The statute and case law provide that Petitioner is strictlyliable for any damage they may cause to Respondent'sproperty. RPAPL 881; Sunrise Jewish Center of ValleyStream Inc. v. Lipko, 61 Misc.2d 673, 305 N.Y.S.2d 597(Sup.Ct., Nassau, 1969); MK Realty Holding LLC v. Scneider,**709 39 Misc.3d 1209(A), 2013 WL 1482745 (Sup.Ct.,

Queens, 2013). Nonetheless, the court is not limited torequiring bonds and insurance to ensure that Petitioner willable to compensate Respondent for any damage. Justice alsorequires that the terms of the license provide for safeguardsto prevent damage from occurring, particularly where aRespondent is compelled to grant access to his home. 537West 27th St. Owners LLC v. Mariners Gate LLC, 2009 N.Y.Slip Op. 32360(U), 2009 WL 3400277 (Sup.N.Y.).

*628 In this regard, it must be remembered that Section 881compels a property owner to grant access for the benefit ofanother. The Respondent to an 881 petition has not soughtout the intrusion and does not derive any benefit from it. TheCourt must be mindful of the fact that it is called upon to grantaccess after the parties have failed to reach an agreement, andmust not allow either party to overreach and use the Court toavoid negotiating in good faith.

[4] [5] The risks and costs involved in the use that aPetitioner makes of its neighbor's property should be whollyborne by the Petitioner. Equity requires that the ownercompelled to grant access should not have to bear anycosts resulting from the access, including steps necessary tosafeguard their property.

[6] In this case, as a result of the review and objectionsof Respondent's architect, Petitioner has revised its plans toreduce both the impact on and risk to Respondent's property.Petitioner will no longer shore Respondent's garage or coverhis roof deck. The intrusion is limited to his air space abovehis deck. However, the license should include a requirementthat access to his deck from the second floor of the newbuilding be blocked and that the netting above the safetybalcony be sufficient to prevent any tools and material fromfalling on to or damaging Respondent's building.

Respondent seeks reimbursement for expenses he incurredin retaining an architect to review Petitioner's plans, andin retaining an attorney to negotiate and draft a licenseagreement. He further seeks reimbursement for his attorney'sfees incurred in opposing this Petition.

In this case, the work Petitioner originally proposed wasfairly intrusive and potentially damaging to Respondent'shome if not done correctly. This was not a case where thePetitioner merely sought to place a sidewalk shed in front ofRespondent's property. The original plan called for Petitionerto shore the rear wall of Respondent's garage, after the southwall of the garage had already been damaged.

As a result of that damage DOB had issued a partial stopwork order and ordered Petitioner to shore the rear wall ofRespondent's garage as a condition of allowing it to demolisha wall on its lot that was within 2–4 inches from Respondent'srear garage wall. Petitioner's shoring plan submitted with itsPetition called for shoring the entire length of the ceiling ofthe garage next to the rear wall with a series of six jacks, undera cap plate and mounted on a floor plate.

*629 This work would have required vacating the garage forapproximately 3 to 4 months and removing the cars and otheritems housed in the garage.

Respondent's architect objected to the shoring plan on twogrounds. First, that the plans call for placing the shoringdirectly over the fill line and vent line of an underground oiltank. Second, that Petitioner's architects misidentified ceiling


















982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051


beams as concrete when they are steel and ignored the factthat the last steel beam overlaps the plane of the door. Hetestified that the proper way to shore the **710 garage wallwas to install needle beams to support the end beam and takethe load off the wall. Additionally, the use of needle beamswould eliminate the need to vacate the garage.

During the hearing, Petitioner agreed to modify its plans anduse needle beams to shore the rear wall. After the hearingPetitioner informed the Court that DOB had agreed to allowit to remove the wall on its property that was adjacent toRespondent's rear garage wall without shoring the garagewall. Therefore, Petitioner was no longer seeking access toRespondent's garage to shore the rear garage wall.

The plans submitted with the Petition also called for installinga protective covering of styrofoam and plywood on top ofRespondent's roof deck to protect the deck from any fallingmaterial while the facade of the east wall of Petitioner's newbuilding was being completed and waterproofed. Workerswould also have used the protected roof deck to accessscaffolding hanging off the east wall of the new buildingas the exterior was being finished. Respondent's architectobjected that the roof protection plan submitted was a genericplan that did not show the actual dimensions or reflect theconditions of the site. He stated the plan made no provision fordrainage or security, that it would have necessitated removingthe furniture, planters and fence existing on the roof deck, andwould have prevented Respondent from using his deck forover a year.

Subsequent to the hearing, Petitioner informed the Courtthat it was proposing and new roof protection plan that didnot involve covering the roof deck. Petitioner now plans toconstruct a temporary safety balcony from the third story ofthe new building that would project 6 feet into Respondentsair space. The balcony would consist of a wood planks on topof a steel deck resting on cantilevered steel beams. The planalso calls for a 4 foot railing at the end of the platform and a netthat would extend from the railing to the upper floors of thebuilding, to *630 protect against falling material. Workerswould to complete the finishing work on the exterior ofthe building from a scaffold attached to Petitioner's buildingwhich they would access from the safety balcony rather thanfrom Respondent's roof deck.

At the last Court date, Respondent's architect raised theobjection that the new plan did not prevent access toRespondent's deck from the second floor of the new building.

Based on that objection Petitioner agreed to a erect a fence atop of the parapet of Respondent's rear wall that would blockaccess from the second floor of the new building. The fencewould run from the second floor to the safety balcony andwould be secured to the new building rather than the rear wallof Respondent's garage.

[7] It is clear that Respondent's architect raised manyvalid objections to Petitioner's plans especially to specificmeans and methods of construction and that his objectionsresulted in changes to the plans. It is equally clear that theseinvolved technical considerations beyond the knowledge ofthe average person and Respondent needed to retain an designprofessional to review Petitioner's plan. A property ownercompelled to grant a license should not be put in a positionof either having to incur the costs of an design professionalto ensure Petitioner's work will not endanger his property,or having to grant access without being able to conduct ameaningful review of Petitioner's plans.

Justice in this case requires that Petitioner pay theRespondent's architects reasonable fees incurred in reviewingPetitioner's plans and making counter proposals, **711 aswell as ongoing monitoring of the work during the term ofthe license.

[8] Respondent also seeks legal fees he incurred in drafting,reviewing and revising a proposed license agreement andin opposing this Petition. The general rule is that absent astatute authorizing an award of attorneys' fees, each side in alitigation must bear the cost of their own attorneys.

[9] Attorneys' fees and disbursements are consideredincidents of litigation and the prevailing party may notcollect them from the loser unless an award is authorizedby agreement between the parties, or by statute or court ruleMatter of AG Ship Maintenance Corp. v. Lezak, 68 N.Y.2d607, 506 N.Y.S.2d 1032, 498 N.E.2d 433 (1986); MightyMidgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21–22, 416N.Y.S.2d 559, 389 N.E.2d 1080 (1979).

The rule is based upon the high priority accorded freeaccess to the courts and a desire to avoid placing barriersin the way of those desiring judicial redress of wrongs. Thepreferred remedy *631 for deterring malicious or vexatiouslitigation has been the use of separate, plenary actions after thechallenged proceedings have concluded. Matter of AG ShipMaintenance, supra.







982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051


Respondent states that Petitioner promised to reimburse himfor his architectural and attorneys fees. The draft of theproposed agreement included language that the Petitionerwould pay Respondent's reasonable attorneys' fees incurredto date, and incurred in the future, in connection withenforcing the agreement and monitoring the work done underthe license. However, the draft was never executed, andPetitioner states that the parties never came to an agreementon attorneys' fees.

The only case to directly address the issue of awardingattorneys fees in connection with an 881 petition is anunreported decision in 10 East End Owners, Inc. v. Two EastEnd Ave Apt Corp., 35 Misc.3d 1215(A), 2012 WL 1414942(Sup.Ct., N.Y.2012) which held that attorneys fees are notrecoverable. It is not clear from the decision whether theattorneys fees sought were litigation related, or for drafting orreview of a licensing agreement.

The decision in 10 East End Owners Inc., is not controllingon this Court and this Court declines to follow it.

[10] RPAPL 881 authorizes that Court to grant the licenseon such terms as justice requires. This language is broadand allows for the flexibility and full scope upon whichequity depends. It is sufficient statutory authority to awardreasonable attorney fees as a condition of a license, where thecircumstances warrant it.

Respondent's request for attorneys' fees, both for negotiatinga proposed license agreement, and for opposing the thispetition, is not based on being the prevailing party in thisaction. The attorneys' fees are sought as a condition of licenserather than as an incident of litigation.

Respondent's opposition to the Petition was that he has notrefused Petitioner access, but that Petitioner had refusedto agree to reasonable terms for the license, to protectRespondent's property and to reimburse him for costs hewould in incur because of the license. The attorneys' feesincurred in opposing the petition in this case are not anincident of litigation but a continuation of the process ofnegotiating a license agreement.

[11] Somewhat counter-intuitively, if a respondent issuccessful in opposing an 881 Petition and no license isgranted then that respondent would not be entitled to attorneysfees for successfully opposing the petition

**712 *632 In a normal commercial setting, where alicense agreement can not be reached, there is no license.Where a license pursuant to RPAPL 881 is sought, the licensecan be compelled even though no agreement is reached, and inthat situation, the terms of the license are set in the discretionof the Court.

A petition pursuant to RPAPL 881 has certain similarities toan eminent domain proceeding. A taking by eminent domainis in effect a forced sale, and a license pursuant to RPAPL 881is in essence a forced granting of a temporary easement. Eventhough the primary beneficiary of both a taking by eminentdomain and a license pursuant to RPAPL 881 may be a privateparty, the rationale for the forced sale or forced temporaryeasement, is the benefit to the public.

In an eminent domain proceeding, the Court is authorizedto award the property owner attorney fees where the awardexceeds the condemning authority's offer and the Courtdeems the award of attorney fees necessary to achieve justcompensation. Eminent Domain Proceedings Law, Sec. 701The purpose of this section is to ensure that the owner receivesthe full value of the property that has been taken from them.

Similarly, since an 881 Petition by the term of the statute isbrought after the parties have failed to reach an agreement,attorneys' fees incurred in opposing a petition or in enforcingthe terms of a license granted pursuant to an 881 petitionshould be recoverable as a condition of the license.

[12] [13] The inclusion of attorneys' fees are notnecessarily warranted in all 881 situations. In decidingwhether justice requires attorneys' fees, either for negotiatinga agreement or in opposing a petition pursuant to RPAPL881, the court must balance the equities. The Court shouldconsider the extent to which the access sought interferes withthe owners use and enjoyment of the property, the risks itposes to the property, as well as the complexities which theaccess sought presents in drafting a license agreement. Also,any attorneys' fees included as a condition of a license shouldbe proportional to the size and scope of the project.

Attorneys' fees are justified in this case because Petitioner'sdemand to make use of Respondent's property has requiredRespondent to hire an attorney to negotiate a licenseagreement.

The situation in this case was very complex in that it involvednot simply accessing Respondent's property in order to work












982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051


on Petitioners property, but also to do work on Respondent'sproperty, *633 specifically to shore Respondents garage,install a plywood covering over Respondent's deck, andinstall an extension on Respondent's chimney.

The original work requested by Petitioner raised detailedquestions of how that work on Respondent's property wasto be performed and his property protected. It also involvedterms for the removal, storage and restoration of property inthe garage and on the deck. The license agreement in thiscase had to be detailed and comprehensive and could not havebe adequately drafted by the average person. The licensingagreement involved extensive negotiations, including severalexchanges of proposed drafts with Petitioner's counsel.

Respondent has demonstrated that he would not voluntarilyenter into a license agreement that did not provide forpayment of both architects and attorney fees incurred inreviewing and drafting the terms of the agreement. While thestatute may compel him to grant access for the benefit ofanother, justice requires that he **713 not be compelled toincur costs to protect his property from such access. Whilethe access is necessary to enable Petitioner to complete hisimprovement, it is not necessary that Petitioner obtain theaccess without cost, particularly for a project of this sizewhere such fees would not constitute a hardship.

[14] Other conditions the Court may impose include, postinga bond, obtaining insurance coverage, agreeing to indemnifythe adjacent landowner and paying for the use of the license.Ponito Residence LLC v. 12th Street Apartment Corp, 38Misc.3d 604, 959 N.Y.S.2d 376 (Sup.N.Y.,2012) DeutscheBank Trust v. 120 Greenwich Development Associates, 7Misc.3d 1006(A), 2005 WL 782810 (Sup.N.Y.,2005).

Courts have awarded license fees as a condition of alicense pursuant to RPAPL 881, see Ponito Residence

LLC v. 12th Street Apartment Corp, 38 Misc.3d 604,959 N.Y.S.2d 376 (Sup.N.Y.,2012); Matter of RosmaDevelopment LLC v. South, 5 Misc.3d 1014(A), 2004 WL2590558, unreported decision (Sup.Kings 2004); MK RealtyHolding LLC v. Scneider, 39 Misc.3d 1209(A), 2013 WL1482745 (Sup.Queens, 2013).

One unreported decision has held that RPAPL 881 does notauthorize the imposition of a fee as a condition of a license. 10East End Owners Inc. v. Two East End Ave Apartment Corp.,35 Misc.3d 1215(A) 951 N.Y.S.2d 2 84 (Sup.N.Y.2012). Thecourt in 10 East End Owners, held that the language in the

statute that a license shall be granted “upon *634 such termsas justice requires” does not warrant imposition of a licensefee. Id at *3. The Court reasoned that the statute provided fordamages but limited them to actual damages occurring as aresult of the entry. Id at *3.

However, this analysis ignores the fact the recovery for actualdamages and a license fee compensate two entirely differentthings. Unlike damages, a license fee compensates the ownerfor the use the Petitioner makes of their property and theirtemporary loss of enjoyment of a portion of their property.

Further, the Court in 10 East End Owners, distinguishedthe decision in the Matter of Rosma, on the grounds that inRosma involved a “voluntary project by a developer erectinga new structure”, while in the case before it the petitionerwas seeking access because it was required, by NYC LocalLaw 11 of 1998, to undertake the repairs which necessitatedaccess. Id. The present case involves a voluntary project by adeveloper to build a new building, and thus is distinguishablefrom the facts in 10 East End Owners.

In Ponito, the court awarded a $1,500 monthly fee as acondition of a license to maintain a sidewalk shed whichextended 20 feet in front of an adjoining property. In Matterof Rosma, the Court awarded a $2,500 monthly fee as acondition of a license for the limited purpose of erectingsidewalk bridging, abutting approximately ten feet onto thesidewalk in front of respondents' real property. In MK RealtyHolding LLC, the court awarded a $1,000 fee as a condition ofa 15 day license to erect a scaffold on an adjoining property.

In the present case, the activities pursuant to the license willbe more intrusive then a sidewalk shed or scaffold. HereRespondent will have a cantilevered balcony protrude 6 feetinto his airspace, approximately 6 feet above his roof deck,for a year. While this is far less intrusive than Petitioner'soriginal plans, it will seriously impact on Respondent's useand enjoyment of his roof deck. Respondent has no backyardand the deck is his only outdoor recreational space. In light ofall the **714 circumstances a license fee of $3,500 a monthis just and equitable.

Lastly, Petitioner seeks access to the roof of the mainportion of Respondent's building to erect an extension toRespondent's chimney, which is Petitioner's obligation underthe building code. The parties have been unable to reachan agreement as to the material to be used to construct theextension. However, the construction of a chimney extension


















982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051


goes beyond temporary access *635 and constitutes apermanent encroachment which is beyond the scope ofRPAPL 881. Broadway Enterprises Inc. v. Lum, 16 A.D.3d413, 790 N.Y.S.2d 402 (2nd Dept.2005), McLennon v.31 Service Corp., 9 Misc.3d 1109(A), 806 N.Y.S.2d 446(Sup.Kings, 2005); Foceri v. Fazio, 61 Misc.2d 606, 306N.Y.S.2d 1016 (Sup.Queens, 1969). Therefore, that portionof the Petition which seeks access to the roof of the mainportion of Respondent's building must be denied.

Lastly, as Petitioner has demonstrated that access toRespondent's property is necessary to complete its building,even though not as much access as originally requested,the Petition was not frivolous, therefore Respondent's crossmotion for sanctions should be denied.

WHEREFORE, the Petition is granted to the extent indicatedabove, and Respondent's cross-motion is denied and it ishereby,

ORDERED that Petitioner is awarded a license to enter onRespondent's property upon the upon the following terms andconditions:

1) The license is awarded to NORTH 7–8 INVESTORS, LLConly and shall be for a term of one year.

2) The Petitioner is granted access to the air space overRespondent's garage only, except that Petitioner is authorizedto place a wooden fence on the parapet of the west wall ofRespondents garage as described below.

3) Petitioner is not granted access to perform anyunderpinning under Respondent's garage.

4) Petitioner's, workmen and contractors are allowed accessto Respondent's airspace only from Monday through Fridays,between the hours of 8:30 am to 5 p.m.

5) Petitioner shall construct a temporary safety balconyfrom the third story of the building it is constructingthat is cantilevered to extend no more than 6 feet intoRespondent's airspace above Respondent's garage roof deckand which conforms to the drawing entitled “OverhangingWork/Protection” by ADGI, September 13 2013, which wasmarked as Court exhibit I at the hearing on January 24, 2014.

6) Petitioner shall construct a wood fence that will extendfrom the second floor of the new building to the bottom of

the safety balcony so as to block access from the secondstory of the new building to Respondent's garage roof deck.Petitioner shall place the fence on the parapet of the west wallof Respondent's garage but shall not attach it to the garagewall. Petitioner shall attach the fence to its building.

*636 7) Petitioner shall not remove or alter Respondent'swooden fence, which currently encloses his roof deck.

8) Petitioner shall attach netting to the rail of the safetybalcony as shown on the drawing marked as Court exhibitI, and shall ensure such netting is of sufficient strengthand design to prevent tools and material from falling ontoRespondent's property.

9) Petitioner shall procure insurance, in the amount of$5,000,000, covering MARK **715 A NEWGARDEN byname, and listing 18 Havemeyer Street including the garageas part of the covered worksite, for any liability Respondentmay incur for property damage, personal injury, or wrongfuldeath, including any liability under New York State LaborLaw, as a result of Petitioner's work, whether or not causedby the negligence of Petitioner or its employees, agentscontractors or subcontractors and providing Respondent firstparty benefits to cover any damage to his property, includingdamage caused by earth movement. Petitioner shall maintainthis insurance for the duration of this license.

10) Petitioner shall indemnify and hold Respondent harmlessto the fullest extent permitted by law for any liability, claims,damages or losses, including attorneys' fees he may incur asa result of Petitioners work, whether or not caused by thenegligence of Petitioner or its employees, agents contractorsor subcontractors.

11) Petitioner shall immediately report, in writing, toRespondent any damage to Respondent's property caused byPetitioner's work.

12) Petitioner shall cure any violation placed againstRespondents property by an governmental or administrativeagency as a result of Petitioner's work. Petitioner shallreimburse Respondent for any fines or penalties imposed asa result of such violations.

13) Petitioner shall take all steps necessary to remove anymechanics lien, or other encumbrance against Respondent'sproperty arising from Petitioner's work or use of Respondent'sairspace.










982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051


14) Petitioner shall pay Respondent a license of $3,500 amonth by the 5th day of each month for the twelve monthsof this license.

15) Petitioner shall reimburse Respondent for the reasonablearchitectural or design professional fees he has incurred todate and may incur in the future in reviewing and monitoringPetitioner's plans and ongoing work.

*637 16) Petitioner shall reimburse Respondent for thereasonable attorneys fees he has incurred to date in reviewing,drafting and attempting to negotiate a license agreement andthat he incurs in the future in enforcing the terms of thislicense.

17) Petitioner shall give an undertaking in the amount of $2million dollars to secure payment by Petitioner of any damageto Respondent's property, to secure payment by Petitioner ofthe license, architectural and attorneys' fees, required by thisorder as a condition of the license, and to secure payment byPetitioner to indemnify Respondent for any liability, claims,damages or losses, including attorneys fees, that Respondentincurs as a result of Petitioner's work.

18) Petitioner shall remove the safety balcony and any otherprojections from Respondent's airspace by the end of the termof this license.

19) The term of this license shall commence 15 days afterPetitioner has provided to Respondent a copy of the insurancepolicy and the undertaking described above; and it is further,

ORDERED, that any disputes as to the amount of architects'or attorneys' fees to which Respondent may be entitled, shallbe submitted to this Court, and either party may move thisCourt to determine the reasonable amount of architects' orattorneys' fees incurred, and it is further

ORDERED, that this Court retains jurisdiction over thismatter to resolve any disputes over the interpretation,implementation or enforcement of this license.

**716 This constitutes the decision and order of this court.

Parallel Citations

43 Misc.3d 623, 982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051


Pinto Residence, LLC v. 12th Street Apartment Corp., 2014 WL 3977720 (2014)


2014 WL 3977720 (N.Y.Sup.) (Trial Order)Supreme Court, New York.

Part 13New York County

PINTO RESIDENCE LLC, Plaintiff,v.

12th STREET APARTMENT CORP., Defendant.

No. 156217/2014.August 11, 2014.

Trial Order

Manuel J. Mendez, Judge.

*1 The following papers, numbered 1 to 4 were read on this Order to Show Cause.

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause - Affidavits - Exhibits …

1 - 3

Answering Affidavits - Exhibits ____________________

4

Replying Affidavits ____________________

_______________

Cross-Motion: Yes X No

Upon a reading of the foregoing cited papers, it is Ordered that this motion by Order to Show Cause is granted to the extentstated herein.

Plaintiff is the owned of 19 West 12th Street, New York, New York (herein “Premises”) and defendant owns the buildingadjacent to the Premises located at 3 West 12th Street, New York, New York (herein “Co-op”). In 2010 pursuant to a New YorkCity Department of Buildings (herein “DOB”) work permit, defendant installed a 127-foot sidewalk bridge (herein “Scaffold”)that encroached upon plaintiff's property by approximately 20 feet.

Plaintiff commenced an action - Index No. 111540/2011 - (herein “Prior Action”) seeking removal of the Scaffold. In a Decisionand Order dated October 23, 2012 the court granted defendant a license pursuant to RPAPL 881 on the condition that (1)defendant is entitled to said license for a period of 5 months commencing at the entry of that decision and order and subjectto an extension on notice to plaintiff and upon submission to the court of proof regarding the need for such extension; (2) thatdefendant shall pay the sum of $1,500 per month to plaintiff for said license, which by an Order dated March 28, 2013 wasincreased to the sum of $1,750 monthly; (3) defendant must name plaintiff as an additional insured on its policy of insurance,and in the event plaintiff deems the amount of coverage to be insufficient, it could apply to the court for an increase in suchamount; and (4) that defendant shall be liable to plaintiff for any damages that may occur as a result of granting the withinlicense. The Scaffold was removed in September of 2013.

http://www.westlaw.com/Link/Document/FullText?findType=h&pubNum=176284&cite=0227014601&originatingDoc=Id772a309252111e4b86bd602cb8781fa&refType=RQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Keycite)

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000130&cite=NYRAS881&originatingDoc=Id772a309252111e4b86bd602cb8781fa&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Keycite)



Defendant sent plaintiff a letter dated May 28, 2014 seeking permission to install another sidewalk bridge for subsequent workon the Co-op's facade at the direction of the DOB. Defendant installed said sidewalk bridge in June of 2014 before obtainingpermission from plaintiff. In a letter dated June 18, 2014, plaintiff sent a proposed License Agreement, which defendant didnot execute. Defendant subsequently sent two proposed Insurance Certificates adding plaintiff and defendant onto the Co-op'scontractors' insurance policy. Plaintiff rejected the proposed Insurance Certificates and insisted on being added to defendant'sInsurance Certificate.

*2 Plaintiff commenced an action on June 26, 2014 and now moves by Order to Show Cause seeking an order requiring theimmediate removal of that portion of the sidewalk bride erected by defendant encroaching on plaintiff's property. Plaintiff seeksan injunction mandating the removal of the sidewalk bridge pursuant to Real Property Actions and Proceedings Law § 871(1)which states, in part, that “an action may be maintained by the owner of any legal estate in land for an injunction directing theremoval of a structure encroaching on such land.”

CPLR § 6301 grants this court the power to issue an order directing the defendant to perform an act for the benefit of plaintiff,or to refrain from performing an act which would be injurious to the plaintiff. A preliminary injunction may be granted underCPLR article 63 when the party seeking such relief demonstrates (1) a likelihood of success on the merits; (2) the prospectof irreparable injury and (3) a balance of equities tipping in the moving party's favor (Doe v. Axelrod, 73 N.Y. 2d 748, 532N.E.2d 1272, 536 N.Y.S.2d 44 [1988]).

RPAPL § 871(1) allows for an injunction compelling the defendant to remove the sidewalk bridge allegedly encroachingon plaintiff's real property. “In order to obtain the injunctive relief they sought, however, the defendants were required todemonstrate not only the existence of the encroachment, but that the benefit to be gained by compelling its removal wouldoutweigh the harm that would result to the plaintiff from granting such relief” (Broser v. Schubach, 85 A.D.3d 957, 925 N.Y.S.2d875 [2nd Dept., 2011] citing to, RPAPL 871; Marsh v. Hogan, 81 AD3d 1241, 1242, 919 NYS2d 536 [2011]; Town of Fishkillv. Turner, 60 AD3d 932, 933, 876 NYS2d 92 [2nd Dept., 2009]).

Plaintiff annexes the Decision and Order from the prior action in support of its motion by Order to Show Cause in whichthe court denied plaintiff injunctive relief and converted the action for a preliminary injunction into a proceeding grantingdefendant a license. RPAPL § 881 allows property owners or lessees seeking to make improvements or repairs to real propertyand said improvements cannot be made without entering onto adjoining real property to commence a special proceeding fora license to so enter the property if permission to so enter the adjoining property has been refused. “In determining whetheror not to grant a license pursuant to Real Property Actions and Proceedings Law § 881, courts generally apply a standard ofreasonableness,” (Matter of Board of Mgrs. of Artisan Lofts Condominium v. Moskowitz, 114 A.D.3d 491, 492, 979 N.Y.S.2d811 [1st Dept., 2014]) requiring the courts to “balance the interests of the parties and should issue a license when necessary,under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to thehardship of his neighbor if the license is refused” (Id. citing to Chase Manhattan Bank [Natl. Assn.] v. Broadway, Whitney Co.,57 Misc 2d 1091, 1095, 294 N.Y.S.2d 416 [Sup Ct, Queens County 1968).

*3 Here plaintiff asserts that when the Scaffold was previously erected plaintiff's garden was destroyed. Plaintiff subsequentlyrepaired the garden and argues that the new side walk bridge “apparently will be destroyed by Defendant's actions.” Defendantargues that pursuant to Local Law 11, it performed extensive facade repair work. Upon inspection by the DOB, defendant wasrequired to undertake additional work and “the City regulations require that the sidewalk bridge be erected in this place andmanner,” and “stay erected until the [DOB] evaluates the work and authorizes the [side walk bridge's] removal.”

Plaintiff fails to show it will suffer imminent and irreparable harm and that the balance of equities favors injunctive relief.

Accordingly, it is ORDERED that this Motion by Order to Show Cause is granted only to the extent requiring defendant to addplaintiff as an additional insured under the Co-op's insurance policy within 7 days from service of a copy of this Order withNotice of Entry upon the defendant, and it is further,


http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000059&cite=NYCPS6301&originatingDoc=Id772a309252111e4b86bd602cb8781fa&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Keycite)

http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1988150852&pubNum=602&originatingDoc=Id772a309252111e4b86bd602cb8781fa&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Keycite)

















ORDERED, that failure by the defendant to timely add plaintiff to the Co-op's insurance policy as so ordered in this Decisionand Order shall result in an Order from this Court to removed the sidewalk bridge, and it is further,

ORDERED, that defendant is directed to pay plaintiff a monthly license fee of $1,750 per month until the work under thelicense is completed, and it is further,

ORDERED, that defendant shall make the monthly license payment to plaintiff for the months of June, July, and August of2014, no later than August 29, 2014.

Dated: August 7, 2014

ENTER:

<<signature>>

MANUEL J. MENDEZ

J.S.C.


Rosma Development, LLC v. South, 5 Misc.3d 1014(A) (2004)

798 N.Y.S.2d 713, 2004 N.Y. Slip Op. 51369(U)


KeyCite Yellow Flag - Negative Treatment

Distinguished by 10 East End Ave. Owners, Inc. v. Two East End Ave.

Apartment Corp., N.Y.Sup., April 23, 2012

5 Misc.3d 1014(A)Unreported Disposition

(The decision of the Court is referencedin a table in the New York Supplement.)

Supreme Court, Kings County, New York.

In the matter of the Application of ROSMADEVELOPMENT, LLC, et ano ., Petitioners,

v.Kenneth SOUTH, et al.,, Respondents.

No. 23044/04. | Oct. 19, 2004.

Opinion

DAVID I. SCHMIDT, J.

*1 Upon the foregoing papers in this special proceedingpursuant to RPAPL 881, petitioners Rosma Development,LLC and Deluxe Development, Inc. (petitioners) move, byorder to show cause, for an order granting them a licenseto enter upon portions of premises owned by respondentKenneth South and respondents Johnnie B. Harris, Jr. andBetty Willis (collectively, respondents) to erect certainsidewalk bridging and roof protection.

Petitioners are the developers of certain real property, whichis located at 258, 260, 262, and 264 Skillman Street, inBrooklyn, New York. Claim Lax, a principal of petitioners,purchased this property on February 19, 2003 as vacantland. Respondent Kenneth South owns a four-story building,located at 256 Skillman Street, and respondents Johnnie B.Harris, Jr. and Betty Willis own a four-story building locatedat 266 Skillman Street. Respondents' property directly abutspetitioners' property. In early 2004, petitioners filed planswith the New York City Department of Buildings (the DOB)to erect an eight-story building on their land, and the DOBsubsequently issued the necessary permits to allow suchconstruction to proceed.

In July 2004, petitioners brought this special proceedingpursuant to RPAPL 881. RPAPL 881 allows property ownerswho seek “to make improvements or repairs to real property”to bring such a proceeding in order to obtain a license toenter upon the premises of adjoining property owners where

permission to so enter has been sought by the propertyowners and refused by the adjoining property owners, andthe property owners' real property is “so situated that suchimprovements or repairs cannot be made by the [property]owner[s] ... without entering the premises of [the] adjoining[property] owner [s].” The petition and affidavits must statethe facts making such entry necessary and the dates on whichentry is sought.

Here, petitioners have submitted their order to show cause,a petition, and the accompanying affidavit of their vice-president, Moshe Junger. In their instant petition and motion,petitioners explain that in order to comply with the NewYork City Building Code and the requirements of the projectengineer and architect, they must erect sidewalk bridgingthat will abut approximately ten feet onto the sidewalk infront of respondents' properties, and certain protection onthe roofs of respondents' premises. The sidewalk bridgingis required to protect pedestrians on the street below theconstruction area, and the roof protection is necessary toprotect respondents' structures from debris. Petitioners assertthat despite various requests made by them to respondents topermit them access to erect the required sidewalk bridgingand roof protection, respondents have refused to allow themsuch access. They contend that they, therefore, need judicialrelief to obtain a license, pursuant to RPAPL 881, to enterupon respondents' real property in order to enable them to takethese necessary measures. Petitioners further support theirrequest with a copy of the architectural plans for the requiredwork, together with a certificate of insurance, which indicatesthat they have obtained substantial insurance coverage thatnames respondents as additional insureds.

*2 In addressing petitioners' instant motion, the court notesthat RPAPL 881 provides that such a license “shall be grantedby the court in an appropriate case upon such terms as justicerequires.” Respondents, in opposition to petitioners' motion,argue that this is not an appropriate case for the granting ofa license. Specifically, respondents contend that RPAPL 881applies only to “improvements or repairs” to real property andthat the new construction of the eight-story building does notconstitute an improvement or repair within the meaning ofthis statute.

Respondents' contention is without merit. In construing themeaning of the term “improvement,” the court notes that“[w]ords of ordinary import used in a statute are to be giventheir usual and commonly understood meaning” (McKinney'sConsolidated Laws of NY, Book 1, Statutes § 232).

https://a.next.westlaw.com/Link/RelatedInformation/Flag?documentGuid=I5ba58cf3da0811d9a489ee624f1f6e1a&transitionType=Document&originationContext=docHeaderFlag&contextData=(sc.Search)

https://a.next.westlaw.com/Document/I57f597e88ec511e18b1ac573b20fcfb7/View/FullText.html?navigationPath=RelatedInfo%2Fv4%2Fkeycite%2Fnav%2F%3Fguid%3DI57f597e88ec511e18b1ac573b20fcfb7%26ss%3D2005501612%26ds%3D2027562234&listSource=RelatedInfo&list=NegativeCitingReferences&rank=0&originationContext=docHeader&transitionType=NegativeTreatment&contextData=%28sc.Search%29

https://a.next.westlaw.com/Document/I57f597e88ec511e18b1ac573b20fcfb7/View/FullText.html?navigationPath=RelatedInfo%2Fv4%2Fkeycite%2Fnav%2F%3Fguid%3DI57f597e88ec511e18b1ac573b20fcfb7%26ss%3D2005501612%26ds%3D2027562234&listSource=RelatedInfo&list=NegativeCitingReferences&rank=0&originationContext=docHeader&transitionType=NegativeTreatment&contextData=%28sc.Search%29

http://www.westlaw.com/Link/Document/FullText?findType=h&pubNum=176284&cite=0256977801&originatingDoc=I5ba58cf3da0811d9a489ee624f1f6e1a&refType=RQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)

http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000300&cite=NYRAS881&originatingDoc=I5ba58cf3da0811d9a489ee624f1f6e1a&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)






http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000300&cite=NYSUS232&originatingDoc=I5ba58cf3da0811d9a489ee624f1f6e1a&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)



798 N.Y.S.2d 713, 2004 N.Y. Slip Op. 51369(U)


Additionally, “[d]ictionary definitions may be useful as guideposts in determining the sense with which a word was usedin a statute” (McKinney's Consolidated Laws of NY, Book 1,Statutes § 234).

Black's Law Dictionary (8th ed 2004) defines “improvement”as “[a]n addition to real property, whether permanent or not;esp., one that increases its value or utility or that enhancesits appearance.” It cannot be disputed that a building meetsthis definition as it is an addition to the vacant real propertywhich increases its value. Moreover, the Court of Appealshas defined “improvements” to include “buildings and otherarticles and structures ... erected upon ... the land” (Matter ofConsolidated Edison Co. of New York v City of New York, 44N.Y.2d 536, 541 [1978]; see also Matter of Marton v. TownBd. of Town of Tuscarora, Steuben County, 115 Misc.2d 174,175 [1982] ).

Thus, the erection of an eight-story building plainly fallswithin the purview of RPAPL 881. Indeed, licenses pursuantto RPAPL 881 have been granted to enter upon the adjoiningneighbor's property in the context of both the developmentof a residential multiple dwelling consisting of three attachedbuildings, and the building of a residential house on avacant lot (see Mellon, Judicial Relief Little–Used Law HelpsDevelopers Held Hostage, NYLJ, Aug. 14, 2002, at 5, col 2)

Respondents also argue that their permission should havebeen requested by petitioners before they began constructionand should have been part of the application processbefore the DOB. The fact that no request was made bypetitioners prior to beginning construction, however, iswithout significance since there is no such requirement underRPAPL 881, which merely requires that permission to enterthe adjoining land has been refused (see Sunrise Jewish Ctr.of Valley Stream v. Lipko, 61 Misc.2d 673, 675 [1969] ).

Respondents further argue that the license should be deniedbecause petitioners created the problem by intentionallychoosing to build an eight-story dwelling between two four-story dwellings, and that petitioners should have known thatthis would interfere with the adjacent homeowners. Suchargument is rejected. Petitioners were within their lawfulrights in electing to build the construction project uponthe property. As noted above, petitioners obtained buildingpermits from the DOB, legally permitting them to do so.Thus, “the fact that petitioner[s] created the problem ... has nobearing” on the right to the license (see Sunrise Jewish Ctr.of Valley Stream, 61 Misc.2d at 675).

*3 In determining the issue of whether to grant petitionersa license pursuant to RPAPL 881, the court must apply a“standard of reasonableness” (Mindel v. Phoenix OwnersCorp., 210 A.D.2d 167, 167 [1994] ). RPAPL 881 is“a codification of well-settled principles of jurisprudenceexpounded by [New York] courts ... dealing with conflictinginterests of adjacent property owners” (Chase ManhattanBank [Nat. Assn.] v. Broadway, Whitney Co., 57 Misc.2d1091, 1096 [1968], affd 24 N.Y.2d 927 [1969] ).

The court must balance the competing interests of the partiesand should grant the issuance of a license when necessary,under reasonable conditions, and where the inconvenience tothe adjacent property owners is outweighed by the hardship oftheir neighbors if the license is refused (see Chase ManhattanBank [Nat. Assn.], 57 Misc.2d at 1095). The court findsthat petitioners have satisfied the statutory prerequisites ofshowing necessity and neither the period of time requestednor the size of the area involved appears unreasonable (seeid. at 1097). Respondents claim, however, that they will begreatly inconvenienced if the license is granted.

Respondents Johnnie B. Harris, Jr. and Betty Willis assert thatthe granting of such a license to petitioners would interferewith their own plans for construction inside and outside oftheir home, and that they cannot obtain a home improvementloan, an equity loan, or refinancing if scaffolding is attachedto their property. They also assert that Betty Harris is a collegestudent and that she may have to stop college if they cannotcomplete their own construction plans. Respondents furtherstate that the value of their properties will decrease if an eight-story structure is built adjacent to their properties. In addition,they assert that their sunlight and fresh air will be affected bythis building.

These assertions by respondents, however, are not a basisfor denial of the petition (see Chase Manhattan Bank [NatAssn.], 57 Misc.2d at 1096). As stated above, petitionershave been issued lawful permits to complete such projectsby the DOB and respondents cannot derail such “as of right”development by withholding their permission to access theirproperty. Petitioners' development plans may not be impededor interfered with by adjoining property owners' resistance todevelopment. To allow otherwise would spell doom to thedevelopment process.

Respondents Johnnie B. Harris, Jr. and Betty Willis furtherassert that they cannot use their backyard due to petitioners'



http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1978124939&pubNum=605&originatingDoc=I5ba58cf3da0811d9a489ee624f1f6e1a&refType=RP&fi=co_pp_sp_605_541&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_605_541




















http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1969142641&pubNum=605&originatingDoc=I5ba58cf3da0811d9a489ee624f1f6e1a&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)



http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1968127119&originatingDoc=I5ba58cf3da0811d9a489ee624f1f6e1a&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)




798 N.Y.S.2d 713, 2004 N.Y. Slip Op. 51369(U)


digging without reinforcing the ground, causing soil to slide.They state that petitioners have also interfered with theiraccess to the fire escape and have prevented their access totheir chimney. These respondents point to violations issuedby the DOB and have annexed copies of these violations.

The violation issued by the DOB with respect to mortardropping onto the front walkway, front stairs, and rearyard states that petitioners should be required to “provideprotection” to safeguard the public and property affected bythe construction operations. There is also a violation notinga failure to provide protection at sides of excavation anddirecting that protections of sheeting and bracing be provided.It appears that the granting of the requested license willactually help achieve such protection and that the risk of anymishaps will be diminished if the protective devices proposedand now sought by petitioners are adopted (see Mindel, 210A.D.2d at 167; Sunrise Jewish Ctr. of Valley Stream, 61Misc.2d at 675).

*4 Moreover, if the alleged problems persist or in theevent further problems do eventuate, respondents will havetheir remedies in damages (see Sunrise Jewish Ctr. ofValley Stream, 61 Misc.2d at 676). RPAPL 881 affordsthe adjoining property owners adequate legal rights andremedies by subjecting the licensee to full liability “for actualdamages occurring as a result of the entry.” For such actualdamages occurring as a result of the entry, respondents havea cause of action against petitioners under the statute, and,to insure payment of such damages, the court can requirethe maintenance of adequate insurance by petitioners (seeSunrise Jewish Ctr. of Valley Stream, 61 Misc.2d at 676).Petitioners have expressed that they are prepared to do allthat is feasible to avoid damages resulting from their entryupon respondents' properties (see Mindel, 210 A.D.2d at 167),and, as noted above, petitioners have submitted proof ofsubstantial insurance coverage.

The court finds that the inconvenience to respondents willnot be as substantial as, and is outweighed by the hardshipto petitioners, in being denied their lawful right to buildupon their land, if the requested license is denied (seeChase Manhattan Bank [Nat. Assn.], 57 Misc.2d at 1097).Petitioners, as the owners of the real estate developmentprojects, have a property interest therein, and have aninterest in completing such projects as quickly as possibleand in avoiding unnecessary delay and expense to theconstruction process. The granting of a license to petitioners,pursuant to RPAPL 881, is necessary to preserve petitioners'

property interests and would not subject respondents togreat inconvenience or loss (see id. at 1095). Furthermore,respondents' inconvenience will be only temporary, whereaspetitioners' hardship, if a license were denied, would bepermanent (see id. at 1097).

In addition, “[w]hat is ‘an appropriate case’ for granting ... alicense [under RPAPL 881] involves ... not only the interestsof the parties but the public interest as well” (Sunrise JewishCtr. of Valley Stream, 61 Misc.2d at 676). Here, the grantingof a license to petitioners will not only achieve the purposeof the statute, but will further the public interest in thedevelopment of land and the providing of housing (see id.).

Therefore, the court concludes that petitioners should beentitled to exercise their statutory right to gain the necessaryaccess in order to proceed with the construction projectwithout unreasonable interference (see Matter of Massa v.City of Kingston, 235 A.D.2d 947, 949 [1997] ). Respondentsmay not be permitted to frustrate petitioners' plans to developtheir land when, in the balancing of the interests involved, theinconvenience and any resultant damages to respondents canbe remedied (see Sunrise Jewish Ctr. of Valley Stream, 61Misc.2d at 676). Thus, the granting of petitioners' motion andpetition for a license pursuant to RPAPL 881 is warranted.

*5 Since, however, the court is mindful of the resultantinconvenience to respondents, it finds that respondents shouldreceive compensation for petitioners' utilization of theirproperty during the time period of the license in a fairand equitable sum as set forth below. Additionally (ashereinbelow stated), respondents shall have the remedy ofdamages, and other terms and conditions, including themaintenance of substantial insurance coverage, must beimposed (see RPAPL 881; Sunrise Jewish Ctr. of ValleySteam, 61 Misc.2d at 676–677).

Accordingly, petitioners are hereby granted a license,pursuant to RPAPL 881, to enter upon a portion ofrespondents' land for the limited purpose of erecting sidewalkbridging, which will abut approximately ten feet onto thesidewalk in front of respondents' real property, and certainprotection on the roofs of respondents' property, pursuantto the copies of the proposed bridge plans and roof plansas set forth in the petition. The granting of such license issubject to the following terms and conditions: (1) petitionersshall be entitled to such license for a period of 12 months,commencing upon the entry of this order and judgment,(2) petitioners are directed to pay the sum of $2,500 per



























798 N.Y.S.2d 713, 2004 N.Y. Slip Op. 51369(U)


month to respondent Kenneth South, and the same sum torespondents Johnnie Harris, Jr. and Betty Willis, jointly, untilthe work under the license is completed, (3) petitioners shallnot unreasonably interfere with respondents' necessary accessto their fire escape or their access to their chimney, and shalltake the necessary steps, measures, and precautions to preventand avoid any further damage to the backyard of respondentsJohnnie B. Harris, Jr. and Betty Willis; petitioners shallremove and cure any issued and outstanding violations, (4)petitioners shall notify respondents in writing when theyhave completed the work under the license, (5) upon thecompletion of the term of the license, respondents' land withinsuch license area shall be returned to its original condition,and all materials used in construction and any resultant debrisshall be removed from the license area, (6) petitioners shallsave respondents harmless for any damages occurring withinthe license area, during the period of this license, and apolicy of liability insurance in an amount of not less than $2million which names respondents as additional insureds shallbe maintained by petitioners during the period of this license,

(7) petitioners shall be held liable to respondents for anydamages which they may suffer as a result of the granting ofthis license and all damaged property shall be repaired at thesole expense of petitioners. A hearing shall be held before thiscourt at the expiration of the term of the license granted hereinto determine the actual damages incurred by respondents asthe result of petitioners' entry upon respondents' land pursuantto said license. Alternatively, respondents may submit anypresent or future claim for damages directly to petitioners'insurer, without prejudice to their rights to later seek damagesbefore the court, and (8) any such other terms and conditionsthat petitioners and respondents may agree to in writing.

*6 This constitutes the decision, order, and judgment of thecourt.

Parallel Citations

5 Misc.3d 1014(A), 798 N.Y.S.2d 713 (Table), 2004 WL2590558 (N.Y.Sup.), 2004 N.Y. Slip Op. 51369(U)


SUPPLEMENT TO EASEMENTS – ACCESS AND TITLE INSURANCE

Jack K. Feirman*

*Vice President and Senior Underwriting Counsel, Old Republic National Title Insurance Company/ Lex Terrae Ltd.

As with most everything else in the law, we should start our discussion by defining our terms. What, then, is an easement? First, it is an interest in real property.1 It presupposes a dominant estate (beneficiary) and a servient estate (burdened property).2 It is a limited right to use the property of another for a stated purpose. An easement is a non-possessory interest in another's land that entitles the holder only to the right to use such land in the specified manner. This last point is rather important in the title insurance world because while a policy of title insurance will insure an easement, that insurance covers, really, only the right to use the easement for the purpose intended. In effect, the insurance covers mere use only but not any of the covenants, conditions and other terms specified in the instrument creating the easement. Furthermore, for reasons discussed below and because easements may be created other than by express grant (also as discussed below), the title insurance coverage does not include the terms of the easement.

Common purposes for which easements are established include, inter alia, ingress and egress (rights of way), utility lines and lateral support for structures. A negative easement allows the dominant owner to prevent the servient owner from doing something otherwise permissible on the servient land.

Although covenants are similar to easements in that in both cases the use of land is being restricted or enhanced by an obligation owed by the property owner to another party, real covenants differ from easements in that they are not considered interests in land. Real covenants are promises. They cannot be acquired by implication, necessity, prior use or prescription. They are agreements and thus can only be created by promises. Once in existence though, there is little practical difference between a negative easement and a real covenant. Because a restrictive covenant does not convey an interest in real property, it does not constitute an insurable interest. If it runs with the land3, will be a burden on the servient parcel and subject to an exception in a title policy issued to a lender or subsequent owner. If the covenant is construed as merely a covenant (and therefore remedied, potentially by damages) or a servitude (enforceable in an in rem or equitable [injunction]) action is important but the title insurer is not prepared to undertake to enforce the promise.

In M. R. M. Realty Co., Inc. v. Title Guarantee and Trust Company4 the appellant realty company entered into a contract to buy property and hired respondent title company for an examination of title and title insurance. Title Guarantee certified that the vendor could convey good and marketable title, clear of

1Henry v. Malen, 263 A.D.2d 698, 692 N.Y.S.2d 841 (3d Dep’t 1999). “An easement is an interest in land created by grant or agreement, express or implied, which confers a right upon the owner thereof to some profit, benefit, dominion or lawful use out of or over the estate of another.” Huyck v. Andrews, 113 N.Y. 81; 20 N.E. 581 (1889). 2Loch Sheldrake Associates, Inc. v. Evans, 306 N.Y. 297; 118 N.E.2d 444 (1954). 3Insurance Law §1113(a)(18):"Title insurance," means insuring owners of, and other persons lawfully interested in, real property and chattels real against loss by reason of defective titles and encumbrances and insuring the correctness of searches for all instruments, liens or charges affecting the title to such property, including power to procure and furnish information relative thereto, and such other incidental powers as are specifically granted in this chapter.” (Emphasis supplied) 4270 N.Y. 120; 200 N.E. 666 (1936).

2

all encumbrances except a covenant to build wharves and streets. After purchasing the property, appellant discovered that the grant was void if there was a failure to perform the covenants. Two prospective purchasers rejected title. Appellant brought suit against its title insurer. Reversing the trial court, two appeals courts held title was marketable and that appellant had been put on notice. It was appellant's duty to inform itself as to the terms. The covenants and conditions of the grant did not make the title unmarketable.

Perhaps another way to look at it is that in the case of a true easement, the risk that the title company is underwriting is the possibility that the burdened party will deny the existence of the easement and the title company will be called in to establish that existence through, in many cases, a declaratory judgment action. Enforcing the easement is not, per se, its responsibility. Insuring that an enforceable right exists is its responsibility. But critically, and a complete answer to why a covenant or negative easement is not insured is that it conveys no interest in the servient parcel only a contract right. But because that contract right is enforceable against the owner of the servient parcel and potentially could subject it to liability in one form or another, it does affect the marketability of the servient parcel and should be excepted in any policy insuring an interest therein so as to insulate the title company from liability.

In referencing servitudes, we mean only to call attention to the fact that unlike real covenants that must be created by a writing, servitudes (or equitable servitudes) may be created by implication – as when it is apparent from a physical inspection of a neighborhood that all the houses have Spanish tile roofs. Equitable servitudes were created by courts of chancery to remedy situations where the strict rules of creating a real covenant were somehow not followed but the parties’ intent should be enforced nevertheless.

“An easement appurtenant occurs when the easement (1) is conveyed in writing, (2) is subscribed by the creator, and (3) burdens the servient estate for the benefit of the dominant estate (internal citations omitted). The easement passes to subsequent owners of the dominant estate through appurtenance clauses, even if it is not specifically mentioned in the deed. (Citations omitted)”5

Easements in gross on the other hand are licenses, personal, non-assignable, non-inheritable, expire upon the death of the holder, sometimes called “Personal Easements”. They are “neither assignable nor inheritable”6 and the beneficiaries lose the right to alien such a license if they are “no longer possessed of any dominant estate to which an easement appurtenant could attach.”7

Where an easement is created by express grant and its sole purpose is to provide ingress and egress, but it is not specifically defined or bounded, "the rule of construction is that the reservation refers to such right of way as is necessary and convenient for the purpose for which it was created" (internal citations omitted), and includes "any reasonable use to which it may be devoted, provided the use is lawful and is one contemplated by the grant" (citations omitted).8 With respect to rights of way, an easement for access that does not define the area of the roadway but merely grants an easement to use for ingress and egress will not necessarily mean that the entire easement area has been dedicated to the right of way. Following the rule in Mandia, a court may well find that where an existing roadway lies within the easement area that that roadway is the area dedicated to the right of way. The owner of the servient 5Djoganopolous v. Polkes, 95 A.D.3d 933 944 N.Y.S.2d 217 (2d Dept 2012). 6Gross v. Cizauskas, 53 AD2d 969, 385 N.Y.S.2d 832 (3d Dept 1976). 7Id. 8Mandia v. King Lumber & Plywood Co., 179 A.D.2d 150, 583 N.Y.S.2d 5 (2d Dept 1992).

3

estate will still have rights to use the balance of the easement area, provided that that use does not interfere with the rights of ingress and egress granted.9

On the other hand, easements granted for express purposes will not be broadly interpreted to permit other uses, even those that may seem to be natural extensions of the easement’s express purpose. So, in Sambrook v. Sierocki,10 “where the easement granted plaintiffs the right of ingress and egress, the fact that the servient estate’s owner erected a fence and made some plantings that inhibited the use of the easement area for parking, the trial court “correctly determined that parking was not a proper use of the easement.”11

“To create an easement by express grant there must be a writing containing plain and direct

language evincing the grantor's intent to create a right in the nature of an easement rather than a revocable license".12 But an individual cannot grant or have an easement over land they own “because all the uses of an easement are fully comprehended in the general right of ownership.”13 Similarly, an easement cannot be created by deed in favor of a person or property not a party to the deed.14 But sometimes it can be tricky. A right of first refusal is not an easement or an interest in real property and a third party may be granted such an enforceable right although such grant or promise does not create an interest in real property.15 Notwithstanding that no property interest is created by such a covenant, knowledge thereof may adversely affect a purchaser’s status as a bona fide purchaser for value. A title insurance company, being risk averse, is likely to take an exception for such a right of first refusal.

Easements may be created by implication. They are implied from the circumstances. They require that there have been a common grantor between the dominant estate and the servient estate for an easement to be implied across the servient estate.

Easements by implication may be found to have been established from various circumstances 9“Where a right-of-way is granted over a stated width and does not state the express purpose for which it is given, the circumstances of the case will determine "whether the reference is to the width of the way or is merely descriptive of the property over which the grantee must have such a way as may be reasonably necessary." Serbalik v. Gray, 268 A.D.2d 926, 702 N.Y.S.2d 686 (3d Dep’t 2000). 1053 A.D.3d 817, 861 N.Y.S.2d 483 (3d Dep’t 2008). 11Id. 12Kampfer v. DaCorsi, 126 A.D.3d 1067, 6 N.Y.S.3d 680 (3d Dep’t 2015). In Kampfer, the plaintiff’s right to use the defendant’s land for the purpose of agriculture during the repayment period of a loan to defendant was considered a license, not an easement 13Will v. Gates, 89 N.Y.2d 778 680 N.E.2d 1197, 658 N.Y.S.2d 900 (1997). 14McColgan v. Brewer, 84 A.D. 3d 1573, 923 N.Y.S.2d 276 (3d Dep’t 2011). As set forth in Estate of Thomson v Wade, 69 NY2d 570, 509 N.E.2d 309, 516 NYS2d 614 (1987),"[t]he long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so-called stranger to the deed", does not create a valid interest in favor of that third party (citations omitted)." Also, a prior owner could not create an easement benefitting land which he did not own. That owner, having already conveyed an adjoining parcel, could not "reserve" in the deed, upon the sale of the remaining parcel, an express easement appurtenant over the previously conveyed adjoining parcel for the benefit of the grantee of the remaining parcel. Id. 15“As noted above, there is no offer inherent in a right of first refusal when it is given; there is only a contractual obligation to make an offer to the holder once the owner has decided to sell to a third party. The rule that a reservation creating an easement or a life estate cannot not be made in favor of a stranger to the conveyance is simply inapplicable to a preemptive right. A preemptive right does not create a property interest in a stranger to the deed, as that term is understood and applied in Estate of Thomson v Wade, 69 NY2d 570, 509 N.E.2d 309, 516 N.Y.S.2d 614” Cipriano v Glen Cove Lodge #1458, B.P.O.E., 1 N.Y.3d 53, 61, 801 N.E.2d 388, 769 NYS2d 168 (2003).

http://www.lexis.com/research/buttonTFLink?_m=b060147488f6a42b073cad480596a5b8&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20Misc.%203d%20408%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=57&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b69%20N.Y.2d%20570%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzB-zSkAW&_md5=071838869d32a5b7a7c15867735ab6b7

http://www.lexis.com/research/buttonTFLink?_m=b060147488f6a42b073cad480596a5b8&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20Misc.%203d%20408%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=57&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b69%20N.Y.2d%20570%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzB-zSkAW&_md5=071838869d32a5b7a7c15867735ab6b7

http://www.lexis.com/research/buttonTFLink?_m=2a5fac7afe30388a1642d365501bbae6&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20Misc.%203d%20408%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=103&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b69%20N.Y.2d%20570%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzB-zSkAW&_md5=5570b7e38f9be5def34598bf37dedef7

http://www.lexis.com/research/buttonTFLink?_m=2a5fac7afe30388a1642d365501bbae6&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20Misc.%203d%20408%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=103&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b69%20N.Y.2d%20570%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzB-zSkAW&_md5=5570b7e38f9be5def34598bf37dedef7

http://www.lexis.com/research/buttonTFLink?_m=2a5fac7afe30388a1642d365501bbae6&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b49%20Misc.%203d%20408%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=101&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b1%20N.Y.3d%2053%2c%2061%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzB-zSkAW&_md5=15283cfaa337540b5c530f3afa104f39

4

The former existence of a public highway where the common grantor owns to the centerline

thereof and includes the former highway as a boundary in his descriptions or where he owns the bed of the highway will create an easement for use of the roadbed. He will ordinarily be found to have impliedly granted his grantees a private easement of access underlying the public highway. When or if the public road is abandoned or discontinued, the private easements of access which were impliedly or expressly granted allow for the perpetual enjoyment of the road for the grantee and his successors. 16

The claimed easement must have, prior to separation, been so long continued and obvious as to show it was intended to be permanent, and the use must have been necessary to the beneficial enjoyment of the dominant estate at the time of the conveyance.”17

But note that the easement implied is only for the purpose for which it was originally created.18 When a deed makes reference to a filed map depicting a right of way, an easement by implication

will be found to exist.19 Although the intention of the grantor is to be determined in light of all the circumstances, the most important indicators of the grantor's intent are the appearance of the subdivision map and the language of the original deeds.20

Finally, an easement by necessity is a form of implied easement. In addition to the unity of title

that is common to all forms of easements by implication and a subsequent separation of title, at the time of severance an easement over the alleged servient parcel was absolutely necessary.21 An easement by necessity is a form of implied easement may arise if the easement is necessary (not merely convenient) for the use and enjoyment of one parcel that had been part of a larger plot with respect to which the easement is claimed. The easement by necessity comes into effect when one parcel of land is sold and one or more remaining parcel(s) is or are deprived thereby of a required access to, for example, a public road or utility.

“It is well settled that “‘when property is described in a conveyance with reference to a subdivision map showing streets abutting on the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant’” (citations omitted). Nonetheless, whether an implied easement was in fact created depends on the intention of the parties at the time of the conveyance (citations omitted). This requires proof that the deed from the original subdividing grantor referred to the

16Kent v. Dutton, 122 A.D.2d 558 (4th Dep’t 1986). 17Four S. Realty Co. v. Dynko, 210 A.D.2d 622, 619 N.Y.S.2d 855 (3d Dep’t 1994). “The necessity required for an implied easement based upon preexisting use is only reasonable necessity, in contrast to the absolute necessity required to establish an implied easement by necessity.” Id. 18Hopper v. Friery, 260 A.D.2d 964, 689 N.Y.S.2d 305 (3rd Dep’t 1999). 19Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20, 133 N.E.2d 505, 150 N.Y.S.2d 13 (1956); Iovine v. Caldwell, 256 A.D.2d 974, 682 N.Y.S.2d 288 (3rd Dep’t 1998); Fischer v. Liebman, 137 A.D.2d 485, 524 N.Y.S.2d 720 (2nd Dep’t 1988). 20Fischer v. Liebman, fn 19 supra. 21Stock v. Ostrander, 233 A.D.2d 816, 650 N.Y.S.2d 416 (3d Dep’t 1996).“To establish an easement by necessity, plaintiff must, by clear and convincing evidence, show that its property was at one time titled under the same deed as defendants' and, when severed, plaintiff's parcel became landlocked.” Lew Beach co. v. Carlson, 77 A.D.3d 1127 (3d Dep’t 2010).“It is arguable that plaintiff also established the elements of an easement by necessity by showing that, in addition to unity of title, at the time of severance the easement was absolutely necessary to obtain access to the landlocked parcel.” (Stock v Ostrander, supra); Astwood v Bachinsky, 186 A.D.2d 949, 589 N.Y.S.2d 622 (3d Dep’t 1992). (Emphasis supplied). Under New York law, access to a property by means of a navigable waterway will defeat an easement by necessity. Foti v. Noftseir, 72 A.D.3d 1605, 901 N.Y.S.2d 434 (4th Dep’t 2010).

http://www.lexis.com/research/buttonTFLink?_m=e45ce19bb497edf56768332f1e8427e7&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2010%20NY%20Slip%20Op%2032228%28U%29%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=9&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b260%20A.D.2d%20964%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=65&_startdoc=61&wchp=dGLzVzk-zSkAW&_md5=42a10fa03dd6ac80385c5e4cab2f84dd

http://www.lexis.com/research/buttonTFLink?_m=e45ce19bb497edf56768332f1e8427e7&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2010%20NY%20Slip%20Op%2032228%28U%29%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=10&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b144%20A.D.2d%20726%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=65&_startdoc=61&wchp=dGLzVzk-zSkAW&_md5=668c4aeb3366763f63d6938ed3ec4d61

http://www.lexis.com/research/buttonTFLink?_m=e45ce19bb497edf56768332f1e8427e7&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2010%20NY%20Slip%20Op%2032228%28U%29%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=6&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b1%20N.Y.2d%2020%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=65&_startdoc=61&wchp=dGLzVzk-zSkAW&_md5=b6ed3f69ce24127391dc5736aa8829fc

http://www.lexis.com/research/buttonTFLink?_m=e45ce19bb497edf56768332f1e8427e7&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2010%20NY%20Slip%20Op%2032228%28U%29%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=7&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b256%20A.D.2d%20974%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=65&_startdoc=61&wchp=dGLzVzk-zSkAW&_md5=e39994992131521d9cf6cec0bc2d37e3

http://www.lexis.com/research/buttonTFLink?_m=e45ce19bb497edf56768332f1e8427e7&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2010%20NY%20Slip%20Op%2032228%28U%29%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=7&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b256%20A.D.2d%20974%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=65&_startdoc=61&wchp=dGLzVzk-zSkAW&_md5=e39994992131521d9cf6cec0bc2d37e3

http://www.lexis.com/research/buttonTFLink?_m=e45ce19bb497edf56768332f1e8427e7&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2010%20NY%20Slip%20Op%2032228%28U%29%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=8&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b137%20A.D.2d%20485%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=65&_startdoc=61&wchp=dGLzVzk-zSkAW&_md5=8b2697ba8b3c06bda34e3b12dfd06e5c

http://www.lexis.com/research/buttonTFLink?_m=e45ce19bb497edf56768332f1e8427e7&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b2010%20NY%20Slip%20Op%2032228%28U%29%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=8&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b137%20A.D.2d%20485%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=65&_startdoc=61&wchp=dGLzVzk-zSkAW&_md5=8b2697ba8b3c06bda34e3b12dfd06e5c

5

subdivision map or the abutting paper street (citations omitted). DeRuscio v. Jackson, 164 A.D.2d 684 (3d Dep’t 1991).22

Easements by prescription create genuine issues of fact that while they help to clear title, make insuring them difficult. In Walling et al. v. Przybyl23 the Court of Appeals enunciated the essential rationale for easements by prescription and the extent that knowledge of others’ rights by the adverse possessor will govern:

“Defendants argue that there is no claim of right when the adverse possessor has actual knowledge of the true owner at the time of possession. However, longstanding decisional law does not support this position. The adverse possessor must act under claim of right (see Van Valkenburgh). By definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner. Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors [citation omitted]. The fact that adverse possession will defeat a deed even if the adverse possessor has knowledge of the deed is not new (see Humbert v Rector Churchwardens & Vestrymen of Trinity Church, 24 Wend 587, 604 [1840] ["Possession by the defendant with a claim of title for twenty years, can no more be answered by averring that he knew he was wrong, than could the bar of two years, in slander, by the known falsehood of the libel for which it is prosecuted"]). The issue is "actual occupation," not subjective knowledge (see id. [Emphasis omitted]).” "Adverse possession, although not a favored method of procuring title, is a recognized one. It is a necessary means of clearing disputed titles and the courts adopt it and enforce it, because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles and this is desirable" (Belotti v Bickhardt, 228 NY at 308; see generally Hindley v Manhattan Ry. Co., 185 NY 335, 355-356, 78 NE 276 [1906]).”

By and large, we in the title insurance industry are concerned with easements appurtenant. Their

characteristics include:

• Benefits one or parcels of land (dominant estate(s) or parcel(s)) and burdens another (servient estate or parcel

• Easements appurtenant run with the land • There is privity of estate • Easements appurtenant are interests in real property • Easements appurtenant are not transferred with deeds or other conveyances24

22While it is true that a defect arising from the rights of a person whose interest appears in the chain of title must be covered unless specifically excepted" (Herbil Holding Co. v Commonwealth Land Tit. Ins. Co., 183 A.D.2d 219, 226, 590 N.Y.S.2d 512 [1992]) the City's claimed easement as an adjoining landowner is implied by law. The law is clear that "when property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant" (Bogan v. Town of Mt. Pleasant, 278 A.D.2d 264, 718 N.Y.S.2d 181[2000])”Scaglione et al. v. Commonwealth Land Title Insurance Company, 303 A.D.2d 671; 757 N.Y.S.2d 84 (2d Dep’t 2003). 237 N.Y.3d 228; 851 N.E.2d 1167; 818 N.Y.S.2d 816 (2006). 24 The nature of an easement running with the land is that its benefits and burdens are transferred automatically upon the conveyance of the dominant or servient estate, as the case may be. Specifically reciting the easement appurtenant in a deed is not required. Hennessy v. Murdock, 137 N.Y. 317, 33 N.E. 330 (1893);Wilkinson V. Nassau

http://www.lexis.com/research/buttonTFLink?_m=db0331749ff47b9128c920dfe4f7d6c2&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b7%20N.Y.3d%20228%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=66&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b304%20N.Y.%2095%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzt-zSkAz&_md5=13bc5d0f15754ee9bb188441452227c4

http://www.lexis.com/research/buttonTFLink?_m=db0331749ff47b9128c920dfe4f7d6c2&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b7%20N.Y.3d%20228%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=70&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b24%20Wend.%20587%2c%20604%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzt-zSkAz&_md5=e709c50693fc48ca8411714d92d5e7f6

http://www.lexis.com/research/buttonTFLink?_m=db0331749ff47b9128c920dfe4f7d6c2&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b7%20N.Y.3d%20228%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=70&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b24%20Wend.%20587%2c%20604%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzt-zSkAz&_md5=e709c50693fc48ca8411714d92d5e7f6

http://www.lexis.com/research/buttonTFLink?_m=db0331749ff47b9128c920dfe4f7d6c2&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b7%20N.Y.3d%20228%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=71&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b24%20Wend.%20587%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzt-zSkAz&_md5=647440f0b74ad82818203bc46a41045c

http://www.lexis.com/research/buttonTFLink?_m=db0331749ff47b9128c920dfe4f7d6c2&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b7%20N.Y.3d%20228%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=73&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b228%20N.Y.%20296%2c%20308%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzt-zSkAz&_md5=c22096197933d3c707426aac20dddee4

http://www.lexis.com/research/buttonTFLink?_m=db0331749ff47b9128c920dfe4f7d6c2&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b7%20N.Y.3d%20228%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=74&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b185%20N.Y.%20335%2c%20355%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzt-zSkAz&_md5=52c602400351563c737cc8f2403ade5b

http://www.lexis.com/research/buttonTFLink?_m=576e16a0ed6c5c5e780a147ec673379e&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b303%20A.D.2d%20671%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=4&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b183%20A.D.2d%20219%2c%20226%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=21&_startdoc=21&wchp=dGLzVzk-zSkAW&_md5=936a367abe256ef8eb9bd9d0052c19fb

http://www.lexis.com/research/buttonTFLink?_m=576e16a0ed6c5c5e780a147ec673379e&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b303%20A.D.2d%20671%5d%5d%3e%3c%2fcite%3e&_butType=3&_butStat=2&_butNum=4&_butInline=1&_butinfo=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b183%20A.D.2d%20219%2c%20226%5d%5d%3e%3c%2fcite%3e&_fmtstr=FULL&docnum=21&_startdoc=21&wchp=dGLzVzk-zSkAW&_md5=936a367abe256ef8eb9bd9d0052c19fb

6

• The rights and obligations pursuant to such easements remain irrespective of the ownership or other possessory interests in the properties

• The rights and obligations under easements appurtenant benefit and burden the respective owners of the dominant and servient parcels.

Underwriting considerations include:

• Easements often contain a multitude of reciprocal obligations and benefits • Insurance will assure that the access right has been granted but not the enforceability

of the terms • Requests to insure the “rights granted under” the instrument should be refused by the

underwriter • Beyond access to the burdened parcel, the other rights are not interests in real

property • Availability of a current certified survey

To convey an interest in an easement by deed, referencing the easement itself is not necessary. The appurtenances clause in a deed is sufficient.

“The rule of the common law on this subject is well settled. The principle is, that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement, or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. This is one of the recognized modes by which an easement or servitude is created. No easement exists so long as there is a unity of ownership, because the owner of the whole may, at any time, rearrange the qualities of the several parts. But the moment a severance occurs, by the sale of a part, the right of the owner to redistribute the properties of the respective portions ceases; and easements or servitudes are created, corresponding to the benefits and burdens mutually existing at the time of the sale. This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude upon it. The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.”25

Title insurance policies do not insure the accuracy of a survey. The title company is relying on the survey equally with the owner and/or the lender. This is so notwithstanding that the industry has developed the practice of insuring that the property insured is the same as shown on a specified survey26

Shores, 1 Misc.2d 917, 86 N.Y.S.2d 603 (Sup. Ct. Nassau Co. 1949), affd 304 N.Y. 614, 107 N.E. 614, 107 N.E.2d 93 (1952). 25Lampman v. Milks, 21 N.Y. 505 (1860). 26 “The Company hereby assures the Insured that said Land is the same as that delineated on the plat of a survey made by _____________________ designated Job No. _______________. The Company hereby insures said Assured against loss which said Assured shall sustain in the event said assurances herein shall prove to be incorrect.” (TIRSA Land Same as Survey Endorsement).

7

and that insured parcels are contiguous along their common boundary.27 Affirmative insurance as to the location of an easement is generally to be avoided by an underwriter although this is a frequent request.

Insurance of an easement does not insure that the actual use will be reasonable or that either the grantor or grantee was in compliance with the terms of the easement at the time of the conveyance. To properly protect oneself, the purchaser of the dominant estate should inquire of and obtain an estoppel from servient owner to the effect that no default by the grantee exists. Such a provision would be particularly important for a property the economic viability of which might depend on the easement but also, while there is no statutory authority for a lien if a financial obligation by a party to an easement is not satisfied, the possibility of a lawsuit based on contract always exists and as we know, a judgment in New York has a lifetime of ten years and has priority over all transfers (subject to certain exceptions) from and after the date such judgment is docketed or entered28 (and may be renewed for an additional like period29) and becomes a lien on all of a party’s real estate in each county in which the judgment is docketed or entered.30

An easement acquired by grant “remains as inviolate as the fee favored by the grant, unless conveyed, abandoned, condemned or lost through prescription”31 Non-use alone cannot extinguish an easement created by grant.32 An owner is not required that an owner of an easement use it.33 However, such an owner who sits on his rights may lose them through prescription.34

An issue that has come to our attention recently is what happens to an easement when the real estate taxes on the servient parcel are not paid. Private easements of light, air, and access of

27“ The Policy insures against loss or damage which the Insured may sustain by reason that the land described in the Policy as Parcels ____________________________ are not contiguous to each other along their common boundary line(s).” (TIRSA Contiguity Endorsement). There are ALTA endorsements for the same matters available nationally. 28 CPLR §5203(a). 29 CPLR §5203(b). 30CPLR §5203(a). 31Gerbig v. Zumpano, 7 N.Y.2d 327 165 N.E.2d 178; 197 N.Y.S.2d 161 (1960). 32Id. 33 “Although an easement created by grant may be lost by abandonment, an owner is under no obligation to make use of his property, and an abandonment does not result by nonuse. It results only when there is a nonuse accompanied by an intention to abandon on the part of the owner. Abandonment necessarily implies non-user, but non-user does not create abandonment no matter how long it continues. There must be found in the facts and circumstances connected with the non-user an intention on the part of the owner of the easement to give it up, but intention existing coupled with non-user will uphold a finding of abandonment.”Consolidated Rail Corporation, Appellant v. MASP Equipment Corp. 67 N.Y.2d 35; 490 N.E.2d 514; 499 N.Y.S.2d 647 (1986). 34“Where an easement has been definitively located and developed through use, there is no requirement that its owner demand the removal of obstructions blocking the easement before it may be extinguished by adverse possession. A use of an easement which is exclusive, open and notoriously hostile to the interests of the owner commences the running of the prescriptive period and the user may extinguish the easement if that use continues uninterrupted for a period of 10 years…”(Emphasis supplied)Spiegel v. Ferarro, 73 N.Y.2d 622; 541 N.E.2d 15; 543 N.Y.S.2d 15 (1989).

8

adjoining land owners that were lawfully acquired before the levying of a tax are not extinguished by a tax sale.35 Title companies will usually insure against reversion of title or forfeiture if easement is violated by insured. Absent a specific forfeiture or reversionary clause or a specific condition subsequent, forfeiture or reversion is not an issue.

35Behar et al. v Wiblishauser, 99 A.D.3d 838; 953 N.Y.S.2d 51 (2d Dep’t 2012).

JACK K. FEIRMAN 134 Christine Drive

Dix Hills, New York 11746 (T) 631-923-0180 (M) 917-843-3551 (E) [email protected]

Work History: 1971-1978 Kronish, Lieb, Weiner & Hellman LLP Associate

1978-1997 Kronish, Lieb, Weiner & Hellman LLP Partner 1997-2011 Wien & Malkin LLP Partner 2011-2013 Malkin Properties LLC Senior Counsel 2014-Present First American Title Insurance Company Senior Underwriting Counsel Education: 1964-1968 Brandeis University

B.A. History Major with Honors Magna Cum Laude Phi Beta Kappa 1968-1971 Harvard Law School

J.D. Cum Laude Experience: Represented major national banks in corporate,

regulatory and mortgage lending matters; real estate developers in construction, acquisition and leasing of office buildings, shopping centers and multifamily projects; private fund mortgage and mezzanine lenders; general contractors and construction managers; New York City office building landlords; commercial tenants; title insurance underwriter

Professional: Participant/panelist in a number of seminars for

Association of the Bar of the City of New York; wrote several articles for publication in real estate journals; lecturer at New York University Real Estate Institute; member of the Real Estate Committee of the Association of the Bar of the City of New York; conducted CLE real estate programs

Jack Feirman was in private practice for over 40 years specializing in commercial real estate, with extensive experience representing institutional mortgage lenders, mezzanine and preferred equity financing funds, developers, contractors and construction managers and major owners/operators of office buildings and retail properties. After retiring from private practice in 2013, he has been a senior underwriting counsel for First American Title Insurance Company and presently holds the same position at Old Republic National Title Insurance Company in New York City. Jack graduated magna cum laude from Brandeis University and cum laude from Harvard Law School. He has lectured at New York University’s Real Estate Institute and has conducted real estate programs for the Association of the Bar of the City of New York, written articles for The New York Law Journal and Commercial Real Estate.

[email protected] direct telephone number: 212-716-3281 download vcard EDUCATION Brooklyn Law School, J.D. 2007 Yeshiva University, B.A. 2004, cum laude BAR ADMISSIONS 2008, New York 2008, District of Columbia

AV Preeminent® Rated

Selected to the NY Metro Super Lawyers, Rising Stars list for 2014 and 2015. BIOGRAPHY Ariel Weinstock is a partner at Katsky Korins LLP, where he is a member of the firm’s real estate department.

Ariel has handled a broad array of real estate transactions, representing and advocating for the interests of owners, developers, contractors, architects, lenders, borrowers, landlords, tenants, purchasers, sellers, condominium boards, and not-for-profit entities. He concentrates his practice on commercial real estate transactions including, dispositions, acquisitions, financing, development, and operation and management of commercial assets, including all aspects of owning and operating commercial condominium units, and advising clients on complex forward and reverse I.R.S. §1031 exchanges and tenancy-in-common arrangements. Ariel has negotiated design and construction agreements for local and national clients in connection with development and renovation projects totaling in excess of $200,000,000.00.

Within the legal community, Ariel serves as a member of the Board of Directors for the New York County Lawyers Association, and is the co-chair of both the Board’s Building Committee, and the Association’s Construction Law Committee. Ariel was appointed to the Executive Committee of the Real Property Law Section of the New York State Bar Association, and is the co-chair of the Student Affairs Committee. Ariel also serves as Secretary of the NYSBA Construction Law Committee, a position he has held since the Committee was first formed. In addition, Ariel is a frequent lecturer for the bar and other associations at CLE and other programs. BAR ASSOCIATIONS New York County Lawyers’ Association Director, Board of Directors Co-Chair, Building Committee Co-Chair, Construction Law Committee

New York State Bar Association Member, Executive Committee, Real Property Law Section Co-Chair, Student Affairs Committee, Real Property Law Section Secretary, Construction Law Committee, Real Property Law Section

Founder and Managing Editor, New York County Lawyers’ Association Construction Law Journal

mailto:[email protected]

http://www.katskykorins.com/vcards/Ariel%20Weinstock.vcf

RECENT CLE PRESENTATIONS Survey Examination, NYSBA CLE, Practical Skills - Purchases and Sales of Homes

Opening Up: Office Leasing and Renovation Contracts, NYCLA CLE, First Annual Business and Contract Law Institute

Opening Up: Office Leasing and Renovation Contracts, Cardozo Business and Contract Law Institute

The Business of Building: Professionals’ Perspectives, NYSBA CLE, RPLS Summer Meeting.

Default by Owners, Mechanic Lienors and Lenders in Construction Contracts - Remedies for Cure, NYSBA CLE, Hot Topics in Real Property Law and Practice PUBLICATIONS Ariel Weinstock et al., New York’s Scaffold Law and Pending Reforms, November 6, 2014 (http://nycla.org/siteFiles/Publications/Publications1729_0.pdf)

Ariel Weinstock, Trenchless v. Hallen: No Damages For Contemplated Delays, NYCLA Construction Law Journal Fall 2011, at 16.

Home > Attorneys > Bruce H. Lederman

Bruce H. Lederman

Partner

[email protected] Download VCard

Phone: (212) 564-9800Fax: (212) 564-9802

345 Seventh Avenue, 23rd Floor New York, New York 10001

Bruce H. Lederman is the head of the firm's litigation practice. Mr. Lederman has extensive trial and appellate experience before both the Federal and New York State Courts. He handles all aspects of commercial litigation. He has particular expertise in construction disputes, mechanic's liens, real estate contract enforcement and down payment disputes, real estate title issues, brokerage, employee restrictive covenant issues and intellectual property cases.

At the appellate level, in 2015, Mr. Lederman obtained a determination by the Appellate Division, First Department, that the sponsor of a newly built condominium is not under any duty to sell all units and may retain rental units within the condominium building, as well as a decision that a condominium purchaser waived its right to rescission by later entering into a renovation agreement which reaffirmed the original purchase agreement. In 2015, Mr. Lederman also obtained a reversal from the Appellate Division, First Department, dismissing claims against a condominium sponsor for alleged errors in a condominium offering plan. In 2013, Mr. Lederman obtained a modification of the law from the New York State Court of Appeals in an important case involving priority of mechanics' liens over consolidated acquisition and construction financing. Also, in 2013, Mr. Lederman obtained a reversal from the Appellate Division, First Department, in a case where the City of New York had improperly denied a developer 421-a tax benefits valued at approximately $3 million. In 2012, Mr. Lederman successfully obtained a unanimous reversal by the New York State Court of Appeals of an Article 78 proceeding where the New York State Department of Labor improperly attempted to hold a general contractor liable for the unpaid wages owed by a subcontractor. In 2011, Mr. Lederman argued a major case before the Second Circuit Court of Appeals in a landmark case involving the Interstate Land Sales Act. Mr. Lederman has also successfully argued a wide variety of other appeals involving specific performance and down payment disputes for real estate contracts, mechanic's liens, foreclosures and other business related issues.

At the trial level, Mr. Lederman has extensive experience arguing complex motions, trying cases and appearing in arbitrations. In 2014, Mr. Lederman through an Article 78 proceeding successfully challenged a New York City agency's determination denying a developer's entitlement to valuable J-51 tax benefits, which had a long term projected value of $2.4 million. In 2013, Mr. Lederman obtained summary judgment (which was later affirmed by the Appellate Division) dismissing finder's fee claims of over $6 million against the New York City Regional Center in connection with EB-5 financing of the Brooklyn Navy Yard, Steiner Studios and Barclay's Arena. In trials and hearings, Mr. Lederman has

PRACTICE AREAS

Corporate LawLitigation and Dispute ResolutionReal Estate

TaxationTrusts and Estates

CONTACT US

Important Decisionsand Articles

HOME ABOUT THE FIRM ATTORNEYS PRACTICE AREAS REPRESENTATIVE MATTERS NEWS CONTACT US

Page 1 of 3New York City Commercial Litigation Lawyer :: Bruce H. Lederman :: Westchester Cou...

3/30/2016http://www.dagll.com/lawyer-attorney-1327969.html

successfully represented an employee at a trial involving unpaid wages and counterclaims for breach of fiduciary duties, a flooring contractor in the foreclosure of a mechanic's lien and counterclaims of defective installations, numerous private property owners in enforcement of contracts and restrictive covenants issues and various manufacturers and retailers in trademark and copyright disputes.

Mr. Lederman has recently submitted an amicus brief to the Supreme Court of the United States representing public school teachers in the case Friedrichs v. California Teachers, which involves funding of public employee unions and is considered one of the most important cases before the high court in 2016. Mr. Lederman is also presently counsel in an Article 78 proceeding challenging whether the way the State of New York began rating teachers in 2012 was arbitrary and capricious. That case has been subject of feature pieces in the Washington Post, Wall Street Journal, Albany Times Union, as well as CBS and Al Jazerra nightly news.

Other notable cases involve the successful recovery for a client of over $6 million from a major law firm after an associate attorney embezzled funds from the firm's escrow account and fled the country. In that case, Mr. Lederman closely coordinated with the New York District Attorney to extradite the attorney back to the United States, where he was sentenced to 4 to 12 years in prison. In 2008, Mr. Lederman represented a large group of victims of an $80 million mortgage fraud ponzi scheme and acted as special real estate counsel to the creditor's committee in the bankruptcy case involving the liquidation of a portfolio of over 20 properties for the benefit of the defrauded creditors and investors. In that case, Mr. Lederman also coordinated with the United States Attorney resulting in the perpetrators being sentenced to over five years in prison.

On the transactional side, Mr. Lederman has represented numerous developers in the acquisition and sale of multi-family properties, with both traditional and private placement financing. Mr. Lederman has closed many individual properties as well as large portfolio refinances (involving up to approximately $100 million), including securitized and Fannie Mae transactions and defeasance transactions. In 2007, Mr. Lederman represented the seller of the East Harlem Portfolio, one of the largest residential portfolio sales in Harlem's history, consisting of 49 separate properties with a combined sales price in excess of $200 million.

Mr. Lederman's clients include First American Title Insurance Co., Old Republic Title Insurance, Royal Abstract, The Moinian Group, Sackman Enterprises, The RE Group (the Kessner Family), C&K Properties (Meir Cohen and Ben Korman), El Ad Properties, Dabby Investments (Roni Ben-Dov), Dennis Herman, L&M Development, Simone Development, Haruvi Holdings, Richard Maidman, ODA Architecture (Eran Chen), O&D Builders (Nick DeSarno) and toy manufacturer Kids of America/Magic Power Company. Early in his career, Mr. Lederman represented Louis Vuitton in trademark counterfeiting cases and Mitsubishi Motors in product liability cases.

Mr. Lederman has written articles about time of the essence and closing issues which have appeared in the New York State Bar Association Journal as well as articles on condominium sponsor liability and mechanic's liens which have appeared in Real Estate Weekly and federal preemption articles that appeared in the New York Law Journal. He has given CLE lectures for the New York State Bar Association on real estate contracts and on construction defect litigation. He has also give CLE lectures on mechanic's liens for First American Title Insurance Co.

EDUCATION

J.D., New York University, 1984Executive Editor, The Review of Law and Social Change

B.A., University of Pennsylvania, Faculty of Arts and Sciences, 1981cum laude

B.S.E., University of Pennsylvania, The Wharton School of Business, 1981cum laude

BAR ADMISSIONSNew York State Bar, 1985New Jersey State Bar, 1985United States District Courts, Southern and Eastern Districts of New York, 1985United States District Court, District of New Jersey, 1985



United States Court of Appeals for the Second CircuitSupreme Court of the United States

PROFESSIONAL ASSOCIATIONSNew York State Bar Association

Member of the Construction Law Subcommittee of the Real Estate Property Section

New York City Commercial Litigation Lawyer D'Agostino, Levine, Landesman & Lederman, LLP Home Contact Westchester County, NY Real Estate Attorney D'Agostino, Levine, Landesman & Lederman, LLP

Copyright © 2012, D'Agostino, Levine, Landesman & Lederman, LLP

345 Seventh Avenue, 23rd Floor New York, New York 10001 Phone: (212) 564-9800 Fax: (212) 564-9802 Email: [email protected]

Home Disclaimer and Terms of Use Site Map Contact Us



Date post:	22-Jun-2018
Category:	Documents
Upload:	hoangmien
View:	213 times
Download:	0 times

NSTITUTE CCESS AND E A INSURING GREEMENTS … Agreements and Insuring Easements - 04.04...Continuing...

Documents