Deutsche Bank Trust v 120 Greenwich Dev. Assoc.
Annotate this CaseDecided on April 5, 2005
Supreme Court, New York County
Deutsche Bank Trust, Petitioner, FOR AN ORDER AND JUDGMENT PURSUANT TO ARTICLE 4 OF THE CIVIL PRACTICE LAWS AND RULES AND SECTION 881 OF THE REAL PROPERTY LAW FOR ACCESS TO ADJOINING PROPERTY,
against
120 Greenwich Development Associates, Respondent.
600803/05
Judith J. Gische, J.
This is a special proceeding by one landowner ("Petitioner") against an adjacent landowner for a license to enter the adjoining parcel of land to erect scaffolding and/or other protective devices while petitioner does work on its own property. [*2]
Petitioner, Deutsche Bank Trust Company Americas f/k/a Bankers Trust Company, owns real property located at 4 Albany Street a/k/a 123 Washington Street in New York County (Block 53, Lot 23). Respondent, 120 Greenwich Development Associates LLC ("120 GDA"), is the former owner of the adjoining real property located at 114-120 Greenwich Street in New York County (Block 53, Lot 28). 120 GDA maintains that it recently sold the property to Senex Greenwich Realty Associates LLC ("Senex") by deed dated February 28, 2005. By stipulation dated March 24, 2005, the parties agreed to add Senex as a party-respondent. Both respondents are represented by the same attorney and they oppose the relief requested.
The two subject buildings are within the affected area where the terrorist attacks occurred at the World Trade Center on September 11, 2001. Respondents' building has residential units, whereas petitioner's building is an entirely commercial building. Petitioner's building has been vacant and closed since the attacks. It has undergone a 'remediation' process to contain many of the environmental toxins therein. Petitioner claims, however, that while the building is environmentally safe to demolish, it is not safe to reoccupy. Accordingly, it has sold the property to a developer, 123 Washington LLC, with an agreement to deliver the lot vacant. Petitioner claims that the new owner plans to construct a new building at the site. Senex' building is mostly unoccupied or is in the process of being empted, so that it can be rehabilitated.
Petitioner has obtained permits from the Department of Buildings. They permit partial demolition of the 123 Washington Street building (the upper five floors), erection of a fence and other construction materials. Petitioner contends that it cannot do the work necessary to completely demolish the building on its own property unless it has physical access to the respondents' courtyard to build and maintain scaffolding. Petitioner further contends that it is working under strict time constraints which are contained in the contract to sell its property to 123 Washington LLC. A copy of the underlying contract has not been provided to the court, but the purchaser's attorney states in a reply affidavit that the closing date is July 31, 2005, and that delivery of the land "vacant" is a material term thereof. Thus, petitioner urges the court to exercise its discretionary powers under RPAPL §881 to grant it a license to enter respondents' property, so that it can erect safety devices, including a scaffolding, which are necessary to protect respondents' property and the public at large during the demolition work.
RPAPL §881 provides as follows:
"When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry." [*3]
It is recognized that a RPAPL §881 license need not be routinely granted and that the court is required to consider the competing interests of the two adjoining landowners before reaching its conclusion whether to do so. Chase Manhattan Bank v. Broadway, Whitney Co., 59 Misc2d 1085 (Sup. Ct. Queens Co. 1969). The court must also consider the interests of the public at large. In re: ALM Properties, Inc., NYLJ 11/1/04, p.19, col. 1 (Sup. Ct. Kings Co.). Moreover, even when a license is granted, the court may order the petitioner to fulfill additional terms and conditions. Sunrise Jewish Center of Valley Stream v. Lipko, 61 Misc2d 673 (Sup. Ct. Nass. Co. 1969); In re: ALM Properties, Inc., supra . Conditions may include, among other things, posting a bond, obtaining insurance coverage, agreeing to indemnify the adjacent landowner and/or paying for the use of the license. The statute itself requires the licensee to pay damages.
Respondents raise arguments that RPAPL §881 does not apply at all to the situation at bar. In the alternative, they urge this court should not exercise its discretion in granting petitioner the license it requests. Respondents expressly claim that:
[a] the intended demolition is neither an "improvement" or "repair" within the meaning of RPAPL §881;
[b] the petition fails to supply the facts required for the petition to be granted;
[c] the license would unreasonably interfere with respondents' intention to make immediate improvements to its own property.
Respondents argue that because petitioner is seeking to "demolish" the building on its property, the work it seeks to do is neither an "improvement" nor "repair" supporting the granting of a license within the meaning of RPAPL §881. Petitioner admits that under the terms of its contract to sell its property to 123 Washington LLC, it is only required to demolish the existing structure. Petitioner states, however, that the new owner intends to improve the site by constructing a multi-purpose building at the site.
As previously stated, the underlying contract between petitioner and 123 Washington LLC has not been provided to the court. Given, however, the location of this still very valuable real estate, it is most unlikely that anyone would purchase it with the intent of letting it lie fallow. In its reply papers, counsel for the prospective owner confirms that the owner plans to commence construction of a new building on the land.
Thus there can be no dispute that while petitioner seeks the scaffolding only to demolish the existing structure, the demolition work is but setting the stage for redevelopment of the lot by the prospective new owners.
Respondents argue, however, that regardless of whether the new owner will construct a new building on the site or not, demolition is not a permissible basis for a license under RPAPL §881.
RPAPL §881 is a statute which stands in derogation to the existing common law regarding trespass. Laws which are intended to alter the common law should be read narrowly. In Matter of Bays Water Health Related Facility v. Karagheuzoff, 37 NY2d 408 (1975). Notwithstanding such rules of statutory construction, the court believes that the statute was not and could not have logically been intended to permit a licensing only for those improvements [*4]that do not require any demolition of the existing structures in whole or part. As the Court of Appeals noted in Matter of Con Ed v. City of New York, (44 NY2d 536 [1987]) "as is often the case, the classic cannons of statutory construction hardly settle the controversy."
The statute was enacted in recognition of the fact that property owners often build right up to the building line. Consequently, unless the court has the authority to grant licenses in appropriate cases, buildings could lose their value or utility, for want of an ability to make improvements or repairs. The possible result could be urban blight. See: Sunrise Jewish Center of Valley Stream, Inc. v. Lipko, supra . Constructing a new building at the site is certainly an improvement which will enhance the value of the lot. Rosma Development LLC v. South, 5 Misc 3d 1014(a) (Kings Co. Sup. Ct. 2004). The statute does not limit improvements to existing structures. More importantly, in many circumstances, demolition, whether it be partial or complete, is a necessary element of making improvements to property.
Respondents' authorities do not command a different result. While most of the cases respondents rely upon refer to repairs or improvements to existing property, it is because those cases themselves do not involve new construction. There is nothing to suggest that the cases were excluding new construction from the purview of the statute. Senator McGowan's legislative statement similarly focused upon the need for home improvements as support for passing RPAPL §881. There is nothing he said one way or the other expressly excluding new construction and/or commercial construction from RPAPL §881. The tax cases relied upon by respondents are inapposite since they did not concern RPAPL §881 and did not address what constitutes an "improvement" to property thereunder.
Respondents argue that the petition is otherwise defective because it is bereft of the anticipated duration of the license. In their reply papers, however, petitioner indicates that it anticipates the license will be needed for no longer than July 31, 2005.
It is significant to the court that the actual plans for demolition are not included within the petitioner's papers. While this does not compel a denial of the petition at this stage, it does prevent a summary adjudication in favor of such a license without a hearing. The court is bound to make sure that any license granted inconveniences the adjoining property owner to the least extent possible. More information on the exact nature, timing and extent of the demolition project requiring the license is critical. This information should be developed by the petitioner at a testimonial hearing.
Respondents further argue that petitioner has not proven that the contract on 123 Washington LLC will fail if the lot is not delivered vacant. The court has already noted that the petitioner has not provided a copy of its contract with 123 Washington LLC to the court. While petitioner's principal and the prospective owner's counsel both claim that the contract will fail, it is unclear exactly what consequences will befall petitioner. In addition, such statements about the contract are not otherwise admissible evidence. The failure to include, in its initial application, evidence in admissible form regarding the consequences of failing to timely demolish the building will not defeat the petition at this time. It will not, however, support a summary adjudication in petitioner's favor without a trial.
There are other factual and equitable considerations that are disputed between the parties which cannot be resolved on the papers submitted, without a trial. They include: whether there is an alternative to putting up scaffolding [Broadway Ent. V. Lum, __ AD2d __, 790 NYS2d 402 [*5](2nd dept 2005); Massa v. City of Kingston, 235 AD2d 947 (3rd dept 1997)]; whether petitioner is, as it claims, in a position to immediately erect the scaffolding. In this regard the court notes that the permits provided only deal with demolition of the five upper stories and not the entire building; whether petitioner's claim that there is an environmental necessity to demolish the existing structure is bona fide; and, whether the proposed demolition includes improper demolition of a party wall.
Respondents claim that the application for a license should be denied outright because the petitioner is seeking to remove a party wall, in which they have an easement. Petitioner claims that because the party wall abuts a courtyard and not a building, they are entitled, as a matter of law, to remove a party wall.
A party wall is commonly defined as a division wall between two adjacent properties belonging to different persons and used for the mutual benefit of both parties. Soma Realty Co. v. Romeo, 31 Misc2d 20 (Sup. Ct. Onon. Cty. 1961). It may exist where a piece of the wall is located on each of the adjoining properties. It may also exist when the wall is entirely on one landowner's property. In such cases the adjacent landowner is still said to have an easement regarding use of that wall. Somo Realty Co. v. Romeo, supra . The right of one party to compel the other party to such a wall to continue its maintenance depends on whether such wall is still necessary. 357 E.66th Corp. v. Knickerbocker Ice Company, 263 NY63 (1933). The right to use a party wall, however, is not restricted to the exact limits of the original use. Necessity may still exist if the use of the wall changed over time. 357 E. 66th Corp. v. Knickerbocker Ice Company, supra .
While the party wall apparently abuts a courtyard on respondent's property, there is simply no evidence in this record of either the past or present necessity for the wall. The mere absence of an abutting building may or may not be dispositive of the issue, depending on whether another necessity for the wall can be established. This issue also requires a testimonial hearing.
Finally, and most importantly, there is a disputed issue regarding whether the proposed scaffolding will interfere with Senex' own plans to rehabilitate its own property. Petitioner has not included its own plans regarding demolition in this application. Senex claims, without documentary support, that it will be rehabbing its own property beginning April 15, 2005 and that it will be using its courtyard as a staging area for the construction. The bona fides of the parties' positions cannot be assessed on these papers alone
Assuming, for now, the exigencies that petitioner alleges are true, the court sets this matter down for an expedited trial beginning on Friday, April 8, 2005 at 10:00 a.m. Respondents are to interpose their answer no later than April 6, 2005. This hearing will only be on the issue of whether and under what conditions the license should be granted.
If the license is granted, there will be a hearing at the conclusion of the license to assess monetary damages in accordance with RPAPL §881. The court is not at this time limiting any theory of damages and/or reasonable conditions to granting the license, including whether respondents are entitled to be compensated for the use of the license granted by the court.
This constitutes the decision and order of the court. This decision is being made available to the attorneys for the parties on the date of issuance.
Dated: New York, New York
[*6]
April 5, 2005
SO ORDERED:
______________________
J.S.C.
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