Matter of AREP Fifty-Seventh, LLC v PMGP Assoc., L.P.

Matter of Matter of AREP Fifty-Seventh, LLC v PMGP Assoc., L.P. 2012 NY Slip Op 08416 Decided on December 6, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 6, 2012
Gonzalez, P.J., Sweeny, Richter, Román, Clark, JJ.
8730

[*1]In re AREP Fifty-Seventh, LLC, 101320/12 Petitioner-Respondent,

v

PMGP Associates, L.P., Respondent-Appellant.




Alexander Ferrini, III, New York, for appellant.
Quinn McCabe LLP, New York (Christopher P. McCabe of
counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Donna M. Mills, J.), entered March 9, 2012, which granted the petition seeking a license, pursuant to Real Property Actions and Proceedings Law § 881, unanimously reversed, on the law, without costs, the petition denied, and the proceeding dismissed.

In this proceeding, petitioner sought a license directing that respondent remove a five-foot section of a sidewalk construction bridge, properly placed in front of petitioner's property, to allow petitioner to erect a crane for its construction project. The court erred in granting the petition. RPAPL 881, the means by which a landowner seeking to make improvements or repairs to its property may seek a license to enter an adjoining landowner's premises when those improvements or repairs cannot be made without such entry, has no application here. Petitioner did not seek a license for "entry" onto respondent PMGP's "premises" (id.). In any event, petitioner failed to explain why "the work could not otherwise be performed" (Matter of Lincoln Spencer Apts., Inc. v Zeckendorf-68th St. Assoc., 88 AD3d 606, 606 [1st Dept 2011]), since the crane could have been
relocated.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 6, 2012

CLERK