RPAPL Section 881 Litigation Continues Apace

Due, in part, to increased construction activity, a renewed focus on project safety, and owners becoming more aware of their rights and remedies, Real Property Action and Proceedings Law (“RPAPL”) Section 881 continues to generate litigation and court decisions construing various provisions of the statute. Two recent decisions are of special note.

In Cucs Housing Develop. Fund Corp. IV. V. Aymes, 2019 WL 934935, 2019 N.Y. Slip Op. 30450 (Sup. Ct. N.Y. Co. Feb. 26, 2019), Judge Melissa A. Crane granted a developer the right to underpin its neighbor’s building, even though such access constitutes a permanent encroachment. While many practitioners and developers believe RPAPL Section 881 does not authorize a trespass of this nature, Justice Crane found to the contrary.

The specific facts of the case undoubtedly had something to do with the result. The petitioner-developer was in the early stages of building an affordable housing project to address the homelessness problem in New York City. The plans in question were approved after a two-year review process by the New York City Department of Buildings. The respondent-neighbor owned a vacant and unused building, without active utilities or security. When questioned at a hearing as to why he opposed the underpinning application, the neighbor, appearing pro se, responded, “I don’t have to have a reason… I just don’t want underpinning.” Furthermore, the Court found there was no feasible alternative to the underpinning, and that in cases such as Madison 96 Associated LLC v. 17 East 96th Owners Corp, 121 A.D.3d 605, 608, 995 N.Y.S.2d 553 (1st Dep’t 2014) and Matter of Tory Burch LLC v. Moskowitz, 146 A.D.3d 528, 43 N.Y.S.3d 901 (1st Dept’t 2017) the First Department seemed to recognize that underpinning could be authorized if it was “virtually unavoidable” or if the “reasonableness and necessity of the trespass” was clearly demonstrated. Accordingly, the Cucs Court authorized the underpinning.

The respondent-neighbor subsequently submitted an application to the First Department for an emergency stay of the underpinning, after which the petitioner-developer informed the Court that it has re-designed its building and underpinning was no longer required. Thus, the Court ordered that the petitioner-developer no longer had a license to underpin. Apparently, underpinning was not the only feasible option after all. Encouraged by the Cucs opinion, others will undoubtedly now seek underpinning in appropriate circumstances.

In Voron v. Board of Managers of the Newswalk Condominium, 63 Misc.3d 1001, 100 N.Y.S.3d 490 (Sup. Ct. Kings Co. 2019), the Court addressed what it stated was a case of first impression: whether RPAPL Section 881 authorized a grant of access by an individual unit owner of a condominium to an adjoining unit for the purpose of performing construction to the individual’s unit.

Justice Karen B. Rothenberg held that RPAPL Section 881 applied to any “real property” according to the plain language of the statute, and that a condominium unit was real property. The Court noted that the owner of the neighboring unit had already vacated, and that the access in question was limited in terms of scope of time. The work would only involve the neighbor’s bathroom and could be completed in ten (10) days. Accordingly, access was granted. The Court also imposed on the party seeking access the obligation to procure insurance, to provide an indemnity, and to pay a license fee, among other things. These are all standard conditions to a license under RPAPL Section 881.

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