Matter of Rosma Dev., LLC v South
Annotate this CaseDecided on October 19, 2004
Supreme Court, Kings County
In the matter of the Application of Rosma Development, LLC, et ano., Petitioners,
against
Kenneth South, et al.,, Respondents.
23044/04
David I. Schmidt, J.
Upon the foregoing papers in this special proceeding pursuant to RPAPL 881, petitioners Rosma Development, LLC and Deluxe Development, Inc. (petitioners) move, by order to show cause, for an order granting them a license to enter upon portions of premises owned by respondent Kenneth South and respondents Johnnie B. Harris, Jr. and Betty Willis (collectively, respondents) to erect certain sidewalk bridging and roof protection.
Petitioners are the developers of certain real property, which is located at 258, 260, 262, and 264 Skillman Street, in Brooklyn, New York. Claim Lax, a principal of petitioners, purchased this property on February 19, 2003 as vacant land. Respondent Kenneth South owns a four-story building, located at 256 Skillman Street, and respondents Johnnie B. Harris, Jr. and Betty Willis own [*2]a four-story building located at 266 Skillman Street. Respondents' property directly abuts petitioners' property. In early 2004, petitioners filed plans with the New York City Department of Buildings (the DOB) to erect an eight-story building on their land, and the DOB subsequently issued the necessary permits to allow such construction to proceed.
In July 2004, petitioners brought this special proceeding pursuant to RPAPL 881. RPAPL 881 allows property owners who seek "to make improvements or repairs to real property" to bring such a proceeding in order to obtain a license to enter upon the premises of adjoining property owners where permission to so enter has been sought by the property owners and refused by the adjoining property owners, and the property owners' real property is "so situated that such improvements 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 state the facts making such entry necessary and the dates on which entry 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 New York City Building Code and the requirements of the project engineer and architect, they must erect sidewalk bridging that will abut approximately ten feet onto the sidewalk in front of respondents' properties, and certain protection on the roofs of respondents' premises. The sidewalk bridging is required to protect pedestrians on the street below the construction area, and the roof protection is necessary to protect respondents' structures from debris. Petitioners assert that despite various requests made by them to respondents to permit them access to erect the required sidewalk bridging and roof protection, respondents have refused to allow them such access. They contend that they, therefore, need judicial relief to obtain a license, pursuant to RPAPL 881, to enter upon respondents' real property in order to enable them to take these necessary measures. Petitioners further support their request with a copy of the architectural plans for the required work, together with a certificate of insurance, which indicates that they have obtained substantial insurance coverage that names respondents as additional insureds.
In addressing petitioners' instant motion, the court notes that RPAPL 881 provides that such a license "shall be granted by the court in an appropriate case upon such terms as justice requires." Respondents, in opposition to petitioners' motion, argue that this is not an appropriate case for the granting of a license. Specifically, respondents contend that RPAPL 881 applies only to "improvements or repairs" to real property and that the new construction of the eight-story building does not constitute an improvement or repair within the meaning of this statute.
Respondents' contention is without merit. In construing the meaning of the term "improvement," the court notes that "[w]ords of ordinary import used in a statute are to be given their usual and commonly understood meaning" (McKinney's Consolidated Laws of NY, Book 1, Statutes § 232). Additionally, "[d]ictionary definitions may be useful as guide posts in determining the sense with which a word was used in 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 enhances its appearance." It cannot be disputed that a building meets this definition as it is an addition to the vacant real property which increases its value. Moreover, the Court of Appeals has defined "improvements" to include "buildings and other articles and structures . . . erected upon . . . the land" [*3](Matter of Consolidated Edison Co. of New York v City of New York, 44 NY2d 536, 541 [1978]; see also Matter of Marton v Town Bd. of Town of Tuscarora, Steuben County, 115 Misc 2d 174, 175 [1982]).
Thus, the erection of an eight-story building plainly falls within the purview of RPAPL 881. Indeed, licenses pursuant to RPAPL 881 have been granted to enter upon the adjoining neighbor's property in the context of both the development of a residential multiple dwelling consisting of three attached buildings, and the building of a residential house on a vacant lot (see Mellon, Judicial Relief Little-Used Law Helps Developers Held Hostage, NYLJ, Aug. 14, 2002, at 5, col 2)
Respondents also argue that their permission should have been requested by petitioners before they began construction and should have been part of the application process before the DOB. The fact that no request was made by petitioners prior to beginning construction, however, is without significance since there is no such requirement under RPAPL 881, which merely requires that permission to enter the 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 denied because petitioners created the problem by intentionally choosing to build an eight-story dwelling between two four-story dwellings, and that petitioners should have known that this would interfere with the adjacent homeowners. Such argument is rejected. Petitioners were within their lawful rights in electing to build the construction project upon the property. As noted above, petitioners obtained building permits from the DOB, legally permitting them to do so. Thus, "the fact that petitioner[s] created the problem . . . has no bearing" on the right to the license (see Sunrise Jewish Ctr. of Valley Stream, 61 Misc 2d at 675).
In determining the issue of whether to grant petitioners a license pursuant to RPAPL 881, the court must apply a "standard of reasonableness" (Mindel v Phoenix Owners Corp., 210 AD2d 167, 167 [1994]). RPAPL 881 is "a codification of well-settled principles of jurisprudence expounded by [New York] courts . . . dealing with conflicting interests of adjacent property owners" (Chase Manhattan Bank [Nat. Assn.] v Broadway, Whitney Co., 57 Misc 2d 1091, 1096 [1968], affd 24 NY2d 927 [1969]).
The court must balance the competing interests of the parties and should grant the issuance of a license when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owners is outweighed by the hardship of their neighbors if the license is refused (see Chase Manhattan Bank [Nat. Assn.], 57 Misc 2d at 1095). The court finds that petitioners have satisfied the statutory prerequisites of showing necessity and neither the period of time requested nor the size of the area involved appears unreasonable (see id. at 1097). Respondents claim, however, that they will be greatly inconvenienced if the license is granted.
Respondents Johnnie B. Harris, Jr. and Betty Willis assert that the granting of such a license to petitioners would interfere with their own plans for construction inside and outside of their home, and that they cannot obtain a home improvement loan, an equity loan, or refinancing if scaffolding is attached to their property. They also assert that Betty Harris is a college student and that she may have to stop college if they cannot complete their own construction plans. Respondents further state 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 by this building. [*4]
These assertions by respondents, however, are not a basis for denial of the petition (see Chase Manhattan Bank [Nat Assn.], 57 Misc 2d at 1096). As stated above, petitioners have been issued lawful permits to complete such projects by the DOB and respondents cannot derail such "as of right" development by withholding their permission to access their property. Petitioners' development plans may not be impeded or interfered with by adjoining property owners' resistance to development. To allow otherwise would spell doom to the development process.
Respondents Johnnie B. Harris, Jr. and Betty Willis further assert that they cannot use their backyard due to petitioners' digging without reinforcing the ground, causing soil to slide. They state that petitioners have also interfered with their access to the fire escape and have prevented their access to their chimney. These respondents point to violations issued by the DOB and have annexed copies of these violations.
The violation issued by the DOB with respect to mortar dropping onto the front walkway, front stairs, and rear yard states that petitioners should be required to "provide protection" to safeguard the public and property affected by the construction operations. There is also a violation noting a failure to provide protection at sides of excavation and directing that protections of sheeting and bracing be provided. It appears that the granting of the requested license will actually help achieve such protection and that the risk of any mishaps will be diminished if the protective devices proposed and now sought by petitioners are adopted (see Mindel, 210 AD2d at 167; Sunrise Jewish Ctr. of Valley Stream, 61 Misc 2d at 675).
Moreover, if the alleged problems persist or in the event further problems do eventuate, respondents will have their remedies in damages (see Sunrise Jewish Ctr. of Valley Stream, 61 Misc 2d at 676). RPAPL 881 affords the adjoining property owners adequate legal rights and remedies by subjecting the licensee to full liability "for actual damages occurring as a result of the entry." For such actual damages occurring as a result of the entry, respondents have a cause of action against petitioners under the statute, and, to insure payment of such damages, the court can require the maintenance of adequate insurance by petitioners (see Sunrise Jewish Ctr. of Valley Stream, 61 Misc 2d at 676). Petitioners have expressed that they are prepared to do all that is feasible to avoid damages resulting from their entry upon respondents' properties (see Mindel, 210 AD2d at 167), and, as noted above, petitioners have submitted proof of substantial insurance coverage.
The court finds that the inconvenience to respondents will not be as substantial as, and is outweighed by the hardship to petitioners, in being denied their lawful right to build upon their land, if the requested license is denied (see Chase Manhattan Bank [Nat. Assn.], 57 Misc 2d at 1097). Petitioners, as the owners of the real estate development projects, have a property interest therein, and have an interest in completing such projects as quickly as possible and in avoiding unnecessary delay and expense to the construction process. The granting of a license to petitioners, pursuant to RPAPL 881, is necessary to preserve petitioners' property interests and would not subject respondents to great inconvenience or loss (see id. at 1095). Furthermore, respondents' inconvenience will be only temporary, whereas petitioners' hardship, if a license were denied, would be permanent (see id. at 1097).
In addition, "[w]hat is 'an appropriate case' for granting . . . a license [under RPAPL 881] involves . . . not only the interests of the parties but the public interest as well" (Sunrise Jewish Ctr. of Valley Stream, 61 Misc 2d at 676). Here, the granting of a license to petitioners will not only [*5]achieve the purpose of the statute, but will further the public interest in the development of land and the providing of housing (see id.).
Therefore, the court concludes that petitioners should be entitled to exercise their statutory right to gain the necessary access in order to proceed with the construction project without unreasonable interference (see Matter of Massa v City of Kingston, 235 AD2d 947, 949 [1997]). Respondents may not be permitted to frustrate petitioners' plans to develop their land when, in the balancing of the interests involved, the inconvenience and any resultant damages to respondents can be remedied (see Sunrise Jewish Ctr. of Valley Stream, 61 Misc 2d at 676). Thus, the granting of petitioners' motion and petition for a license pursuant to RPAPL 881 is warranted.
Since, however, the court is mindful of the resultant inconvenience to respondents, it finds that respondents should receive compensation for petitioners' utilization of their property during the time period of the license in a fair and equitable sum as set forth below. Additionally (as hereinbelow stated), respondents shall have the remedy of damages, and other terms and conditions, including the maintenance of substantial insurance coverage, must be imposed (see RPAPL 881; Sunrise Jewish Ctr. of Valley Steam, 61 Misc 2d at 676-677).
Accordingly, petitioners are hereby granted a license, pursuant to RPAPL 881, to enter upon a portion of respondents' land for the limited purpose of erecting sidewalk bridging, which will abut approximately ten feet onto the sidewalk in front of respondents' real property, and certain protection on the roofs of respondents' property, pursuant to the copies of the proposed bridge plans and roof plans as set forth in the petition . The granting of such license is subject to the following terms and conditions: (1) petitioners shall 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 month to respondent Kenneth South, and the same sum to respondents Johnnie Harris, Jr. and Betty Willis, jointly, until the work under the license is completed, (3) petitioners shall not unreasonably interfere with respondents' necessary access to their fire escape or their access to their chimney, and shall take the necessary steps, measures, and precautions to prevent and avoid any further damage to the backyard of respondents Johnnie B. Harris, Jr. and Betty Willis; petitioners shall remove and cure any issued and outstanding violations, (4) petitioners shall notify respondents in writing when they have completed the work under the license, (5) upon the completion of the term of the license, respondents' land within such license area shall be returned to its original condition, and all materials used in construction and any resultant debris shall be removed from the license area, (6) petitioners shall save respondents harmless for any damages occurring within the license area, during the period of this license, and a policy of liability insurance in an amount of not less than $2 million which names respondents as additional insureds shall be maintained by petitioners during the period of this license, (7) petitioners shall be held liable to respondents for any damages which they may suffer as a result of the granting of this license and all damaged property shall be repaired at the sole expense of petitioners. A hearing shall be held before this court at the expiration of the term of the license granted herein to determine the actual damages incurred by respondents as the result of petitioners' entry upon respondents' land pursuant to said license. Alternatively, respondents may submit any present or future claim for damages directly to petitioners' insurer, without prejudice to their rights to later seek damages before the court, and (8) any such other terms and conditions that petitioners and respondents may agree to in writing.
This constitutes the decision, order, and judgment of the court. [*6]
E N T E R,
J. S. C
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