Gordon v Park Mad 74 Realty LLC

[*1] Gordon v Park Mad 74 Realty LLC 2005 NY Slip Op 50909(U) Decided on June 9, 2005 Supreme Court, New York County Kornreich, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 9, 2005
Supreme Court, New York County

Allan S. Gordon, Plaintiff,

against

Park Mad 74 Realty LLC, SIMONE DEVELOP- MENT CO., L.L.C., CHARLES CORTES CO., INC., JOHN DOES NOS. 1-10 & JOHN DOE, INC. NOS. 1-10, Defendants.



116071/04

Shirley Werner Kornreich, J.

Plaintiff, the owner of a townhouse located at 41 East 74 Street in Manhattan, brings this Order to Show Cause against the owner of a neighboring townhouse and the contractors working on that structure. Plaintiff seeks a preliminary injunction: 1) directing defendants to dismantle and remove building materials encroaching on his property, and 2) restraining defendants from continuing any construction work which does or will encroach on his property or create such an encroachment.

This is the second application seeking injunctive relief in this matter. Previously, plaintiff sought to enjoin defendant-Park Mad 74 Realty LLC ("Park Mad"), the owner of the neighboring townhouse and property, from continuing with construction of an extension to that townhouse, located at 39 East 74 Street. Plaintiff, in his first application contended that the placement of beams in the shared wall, located on the roof, and the upward extension of that wall, posed a safety hazard and that the necessary Building Department permits had not been obtained. The Court refused to enjoin the construction once the required Building Department permits were obtained.

Plaintiff now argues that the construction is encroaching upon his property. In support of his application, plaintiff submits his affidavit, a New York City Building Department document setting forth the work taking place at 39 East 74 Street, a survey drawing, an affidavit from a licensed land surveyor, and an affidavit from a professional engineer. Defendants oppose the application. They submit an architect's affidavit, Building Department Work Permits, photographs, plans, a survey drawing, plans and the affidavit of a professional engineer. In further support of his application, plaintiff submits a second affidavit, photographs, a letter from a licensed engineer and a second engineer's report.

FACTS

Plaintiff's Order to Show Cause

The order to Show Cause contains facts demonstrating that both twenty-foot townhouses [*2]involved in this proceeding, are four-story structures built over basements. Survey Drawing. Each has a nine by twelve-foot, two-story extension with a basement, at its rear, using but one of the boundary walls. Id. That wall, located on the boundary line of plaintiff's and defendant-Park Mad's property, is situated on both properties and is the back portion of the party wall used to support a portion of both townhouses. Practical Design & Engineering Report submitted by plaintiff.

Plaintiff, Allan S. Gordon, submits an affidavit in which he argues that defendant, his neighbor, has placed "a concrete block bulkhead and iron plates on the roof of the Adjoining Residence which bulkhead and plates encroach on [his] property." He further contends that defendants have inserted "four structural and steel beams into practically the full 12 inch depth of" the wall of his rear extension. Mr. Gordon avers that his townhouse dates from the late nineteenth century and in regard to the wall at issue, he contends "upon information and belief," that "no part of [defendant's townhouse] was attached or affixed to the [wall of] Plaintiff's Rear Extension." Mr. Gordon does not state the basis for his information and belief. He continues by contending, "upon information and belief," that the other side of the rear portion of the wall was exposed and never used by the neighboring property. He avers that he gave no permission to defendants to install structural steel beams into that portion of the wall.

Andrew Harwood, a licensed surveyor, submits an affidavit in which he avers: that an iron bearing plate supporting the new rear structural extension on defendant's property "extends one and one-quarter inches across the property line;" that three iron plates are located on the roof, extending two and one-quarter inches, three inches and two inches across the property line; that a concrete bulkhead under construction on the roof extends approximately one and three-quarters inches across the property line; and a concrete block wall under construction on the roof extends one and one-half inches across the property line. A diagram is submitted by Mr. Harwood, which appears to demonstrate that the iron plates, the bulkhead and the concrete blocks are on the wall dividing the buildings/property. Both parties apparently agree that the walls in which beams are inserted and which are being used for construction, straddle the property line, half of the wall being situated on each property.

Nicholas Stramandi, a professional engineer, submits an affidavit in which he states that plaintiff asked him to inspect his premises due to the accumulation of dust in plaintiff's second floor sitting room. Upon inspection, Mr. Stramandi found a six foot vertical crack in the basement wall, varying in thickness from one-quarter inch to one-half inch. He opines that the crack resulted from "settlement and/or disturbance of foundation sub-soils caused by construction activities in the adjoining building." He avers that "it appears" that the construction activity has caused "a crack or shifting of brick concealed by the radiator." He further avers that "it is highly likely that the foundation settlement and basement crack has propagated up the bearing wall to the second floor, thus providing at least a two-story crack which is concealed behind wall finishes and reveals itself by air, noise and dust penetrating through the walls into the premises at 41 East 74th Street."

Defendants' Opposition

Andrew Fredman, the managing member of the architectural firm who prepared the drawings for the construction at 39 East 74th Street and the individual inspecting the construction work, submits his affidavit. He avers that all the encroachments of which plaintiff complains are [*3]upon party walls. He further avers that a permit from the Department of Buildings ("DOB") was obtained for the work and annexes a copy of the permit to his affidavit. The work authorized encompasses a roof-top penthouse and an elevator bulkhead. He avers that this work, which requires the installation of steel beams in the interior wall of the first floor (basement) and a bulkhead and plates on the roof, utilizes a shared party wall. He annexes photographs and a survey to his affidavit.

Mr. Fredman further avers that the construction project consists of "a multi-million dollar renovation," centering on the interior of the building. Mr. Fredman states that the building's footprint will not be increased and the only addition of space will come from the penthouse.

Addressing the rear extension, Mr. Fredman disputes the allegations in the Order to Show Cause. He avers that the rear portion of the west wall of plaintiff's building is a shared party wall, describing it as a continuation of the party wall between the two buildings. He explains that the basement (first floor) of 39 East 74th Street utilizes that wall.

Mr. Fredman further avers that six steel beams were inserted into the party wall, penetrating approximately six inches of the ten to twelve inch wall. He further submits an affidavit and photograph depicting the fact that an original joust in the party wall penetrated to eleven inches. Finally, Mr. Fredman avers that the party wall on the roof has been extended upward but not widened.

Mr. Fredman attests to routine inspections of the project and states that if he were to observe any construction that either is improper or harms plaintiff's property, he would stop the work. He further contends that all work done was legal and appropriate.

Mr. Murray, a professional engineer, avers that he inspected the structural alterations of 39 East 74th Street. He refutes the findings of Mr. Stramandi in regard to the crack in the basement of 41 East 74th Street, opining that the crack was old and formed decades before the construction began. He concludes that the crack resulted from long-term settlement of the foundation due to the construction technique used at the time, as indicated by the crack's position near the interface of the party wall with the facade wall, which caused the heavier party wall to settle more than the non-weight bearing facade. He further opines that the crack does not undermine the building's structure. Finally, he states that defendants' plans provide for repair of party wall cracks with mortar and epoxy, which would seal the cracks and fireproof the wall.

Mr. Fehringer, a licensed surveyor, also submits an affidavit in which he identifies a "typical party wall with elements shared by both properties, i.e., chimneys, vents, stair bulkheads, etc." He avers that the party wall runs the length of the building located at 39 East 74th Street and that the new wall built on the roof "sits entirely upon the pre-existing shared party wall."

Reply

In reply, Mr. Gordon submits photographs to further illustrate his claims. Again, he accuses defendants of both encroaching upon his property and sloppy workmanship resulting in the structural undermining of his townhouse. He restates that the northerly portion of his western wall, which supports his rear extension, is not a party wall since no part of the neighboring townhouse uses that portion of wall for its support. He does not refute that the southern portion of the wall is shared by the two townhouses. Similarly, Mr. Gordon argues that the portion of the wall at issue on the roof, is above the townhouses and, thus, does not support the buildings. He contends that it, therefore, is not a party wall but, instead, a firestop upon which defendants [*4]cannot build.

Mr. Gordon submits a letter from Mr. Stramandi to a Deputy Building Commissioner, in which Mr. Stramandi states that defendants broke bricks in the rear extension wall of Mr. Gordon's premises and replaced them with unmatched bricks, sloppily smeared mortar on the wall, left exposed a portion of the base plate and girders they installed and created aesthetic, structural and fireproofing problems. Mr. Stramandi states in his letter, that the rooftop extension of the wall between the properties intrudes upon Mr. Gordon's property.

Finally, Mr. Gordon submits an unsworn report from Practical Design & Engineering, PLLC, which indicates his townhouse was inspected and describes the property's party walls as being of twelve inch thickness. It states that the west property line of 41 East 74th Street is one-half inch west of the center line of the party wall in the front and is in the center of the wall in the rear. Moreover, it notes that the thickness of the masonry on the rooftop wall is eight inches. The report confirms that the walls in question straddle the property line, which runs through the middle of the walls.

Conclusions of Law

The Court may grant a preliminary injunction where plaintiff shows: (1) probability of success on the merits; (2) danger of irreparable injury in the absence of an injunction; and (3) balance of the equities in its favor. Aetna Ins. Co. v. Capasso, 75 NY2d 860, 862 (1990). The grant of injunctive relief here is controlled by the definition of a party wall and the obligations and benefits which attach to it.

The definition of a "party wall" and the rights and duties of the landowners emanating therefrom, have their genesis in a body of cases going back to the nineteenth century. The case law was made necessary and evolved due to the pragmatics of owning and developing real estate in a crowded, urban setting.

The Court of Appeals in 1873, explained that "land covered by a party wall remains the several property of the owner of each half, yet the title of each owner is qualified by the easement to which the other is entitled." Brooks v. Curtis, 50 NY 639, 642-3 (1873). Consequently, a party wall is built and used for the mutual convenience of both property owners, and neither owner may use it to the detriment of the other. Negus v. Becker, 143 NY 303 (1894). See also D'Onofrio v. Central Sav. Bank, 176 Misc. 709 (S.Ct., N.Y.Co., 1941)(property owner may not cause injury to adjoining owner of party wall and is liable for resulting damage unless such damage is incidental to properly performed work). The policy underlying the notion of a party wall is one of necessity for the continued support of an existing building; unequal right given to one owner is anathema to the policy. 357 East Seventy-sixth St. Corp. v. Knickerbocker Ice Co., 263 NY 63, 66-67 (1933). See also Sakele Bros., LLC v. Safdie, 302 AD2d 20 (1st Dept. 2002)(easement on common wall running over property line did not terminate upon demolition of upper stories of building but continued to benefit of both property owner whose building was supported by entire height of wall and property owner whose building was partially demolished); Mileage Gas Corp. v. Kushner, 245 A.D. 836 (2d Dept. 1935)(as long as one owner continues to use party wall to support its building, other owner is free to use his side of wall for his purposes even after he has demolished his building); 5 East 73rd, Inc. v. 11 East 73rd St. Corp., 16 Misc 2d 49 (S.Ct., N.Y.Co., 1959), aff'd 13 AD2d 764 (1st Dept. 1961)(where one-half of wall was located on two properties but was used to support building only on one property, wall was party [*5]wall mutually owned and qualified by easement to benefit each property owner).

In keeping with these basic tenets, Judge Cardozo, in Varriale v. Brooklyn Edison Co., Inc., 252 NY 222, 224 (1929), expounded on the uses to which a common or party wall may be put:

Each [property owner] may subject it to whatever uses are proper to a wall,

if the like freedom of the other is not curtailed thereby. The meaning of

principles so general is pointed by example. A wall may be carried by either

owner beyond its height as first erected, provided only it is strong enough to

bear the weight and strain. In this there is no encroachment by one owner

upon the equal privilege of the other. Either is continuously at liberty to place

his beams in the addition. [citations omitted].

Accord 25 W. 74th St. Inc. v. Wenner, 268 AD2d 387, 388 (1st Dept. 2000)(each adjacent property owner may use common wall so long as his use of wall does not curtail the freedom of other owner to use wall); Spring Realty Corp. v. Ryan, 206 Misc. 37 (S.Ct., Monroe Co., 1954)(party wall may be used to insert beams to support apparatus to hold air conditioner). See also Negus, supra(adjacent owner had right to increase height of party wall if done without injury to adjoining building); Brooks, supra (adjacent owner may increase height of party wall or deepen its foundation so long as it is done without injury to adjoining building).

Here, plaintiff complains of conduct arising from his neighbor's extension of a common wall on the roof of his building to add another floor to its building and from the insertion of beams into a second common wall to house an elevator. He further complains that the construction has damaged his townhouse.

The submissions of the parties clearly demonstrate, and plaintiff does not dispute, that the walls utilized for Park Mad's construction are located on the boundary and upon the property of both parties. In addition, the rooftop wall, although it extends above the townhouse, is the very same wall that supports both buildings. And, the rear wall is but the back portion of a common wall supporting the townhouses. The Court finds that the rooftop wall and the rear wall, therefore, are party walls in which both plaintiff and Park Mad have easements. The fact that only the rear extension of plaintiff's townhouse utilizes the back portion of the wall cannot deprive Park Mad of its easement. To do so would eviscerate the mutuality underlying the doctrine of party walls. See Sakele Bros., LLC, supra, 302 AD2d 20; Mileage Gas Corp., supra, 245 AD2d 836; 5 East 73rd, Inc., supra, 16 Misc. 49

Moreover, although the beams and other construction material inserted into the party walls may well extend beyond the boundary line, there is no contention that they extend out of the wall, onto plaintiff's property. It, thus, does not appear that plaintiff will succeed in gaining an injunction to stop defendants from inserting beams into the common rear or roof walls or from extending the height of the roof's common wall. See Varriele, supra, 252 NY 284; Negus, supra, 143 NY 307-8; Brooks, 50 NY 644; 116 East 57th St., Inc. v. Gould, 273 A.D. 1000, lv. denied 274 A.D. 782 (1st Dept. 1948)(party wall may be used to construct elevator even if use entails entire width of wall); Amer. Ry. Express Co. v. Lassen Realty Co., 205 A.D. 238 (1st Dept. 1923)(property owner may insert beams into party wall, beyond boundary line); Spring Realty Corp. v. Ryan, supra, 206 Misc. 37.

Also, the balance of the equities, appears to favor defendants. Park Mad seeks to enhance [*6]and develop property it owns. In a dynamic urban environment such as New York City where buildings are constantly being remodeled, demolished and constructed, it can come as no surprise to a property owner that his neighbor intends to change the condition of its building. Once the appropriate zoning and permits are obtained, it would not benefit the public interest for one landowner to circumvent the development of its neighbor's property. See 357 East Seventy-sixth St. Corp., supra, 263 NY 66 ("...the right to use a party wall is not restricted like a prescriptive right to the exact limits of the previous user. Considerations of policy, perhaps, in the garb of presumed intention, have led to an interpretation permitting one owner to vary somewhat the original conditions without affecting the continuance of the easement."). Nor would such a policy advance the rights of an owner to utilize his property as he wishes.

Nonetheless, plaintiff has raised issues which might prove successful in seeking injunctive relief due to the possibility of irreparable harm, viz., his contention that the integrity of his townhouse is being undermined and a fire hazard has been created by the construction. See Brooks, supra at 644(height of party wall may be increased only if wall sufficiently strong to safely bear addition and party making change to common wall is responsible for any damage caused); Negus, supra at 308 (right to make change in party wall conditioned on wall being of sufficient strength to support addition and avoid nuisance or danger); D'Onofrio, supra, 176 Misc. 710( co-proprietor may not act in connection with common wall as to cause injury to adjoining landowner and if he does, he is liable for damage resulting if work is not properly performed).[FN1] Moreover, issues of fact are raised by plaintiff as to whether, inter alia, the construction has caused cracks in his townhouse and whether bricks on his side of the wall have been replaced with inappropriate material. Accordingly, it is

ORDERED that the parties are to appear in Part 54 of the Supreme Court, New York County, on Thursday, June 24, 2005 at 11:30 in the forenoon or as soon thereafter as counsel can be heard, for a hearing to determine if the construction by defendants is or will cause actual injury to plaintiff's building.

The foregoing constitutes the decision and order of the Court.

Date:June 9, 2005_____________________________________

New York, New YorkSHIRLEY WERNER KORNREICH Footnotes

Footnote 1: On the other hand, for any incidental damage which may result, where the [work] is properly performed, there can be no recover." D'Onfrio, id.