Matter of Epic Tower LLC v X & Y Dev. Group, LLC

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Matter of Epic Tower LLC v X & Y Dev. Group, LLC 2019 NY Slip Op 34280(U) June 6, 2019 Supreme Court, Queens County Docket Number: Index No. 7014'21/19 Judge: Robert I. Caloras Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] FILED: QUEENS COUNTY CLERK 06/18/2019 03:15 PM ~· NYSCEF DOC. NO. 86 - ------ - - - - - - - INDEX NO. 701421/2019 RECEIVED NYSCEF: 06/18/2019 Short Form Order NEW YORK SUPREM-E COURT - QUEENS COUNTY PART 36 PRESENT: HON. ROBERT I. CALORAS Justice ----------------------------------------------------X In the Matter of the Application of EPIC TOWER LLC, Petitioner, Index No. 7014'21/19 Motion Date: 4/41_19 Motion Cal. .No. 9 Seq. No. l for a Judgment Pursuant to RPAPL 881 FILED -against- JUN.18 2019 X & Y DEVELOP.MENT GROUP, LLC, Respondent COUNTY CLERK QUEENS COUNTY ·----X The following papers numbered E7-El5 re.ad on this motiQn by petitioner for a license to enter upon portions of the respondent's property; and the cross-motion by respondent for an order dismissing petitioner's request for a license pursuant to RP APL 881; consolidating this action with proceedings filed under lndex No. 707065/2016 (X&Y Development Group, LLC v. Epic Tower LLC, et al.); contempt pursuant to Judiciary Law Sections 753 and 756, by finding that petitioner willfully violated and failed to comply with the Court Order, issued on January 26, 2018 and acting in contravention lo the preliminary injunction a11iculated in same enjoining the petitioner from continuing construction in the alleyway portion of respondent's property; and restoring respondent's property to the condition it existed prior to petitioner's unlawful trespass. PAPERS NUMBERED Petition-Exhibits .............................................................. . Order to Show Cause-Affirmation- ExhibitsStipulation ........................................................................ . Cross-Motion-Affidavit in Opposition to Order to Show Cause and support of Cross-Motion - Memorandum of LawwExhibits .................................................................... . Affirmation in Opposition to Cross-MotionExhibits............................................................................. . Reply Affinnation-Exhibits.............................................. . Affidavit in further Suppo11 of Cross-Motion .................. . El-El 7 El9-E20 E21-.E39 E42-E78 E79-E83 E84-E85 U_pon the foregoing papers, it is ordered that petitioner's order to show cause and Page -lw 1 of 5 [* 2] FILED: QUEENS COUNTY CLERK 06/18/2019 03:15 PM NYSCEF DOC. NO. 86 INDEX NO. 701421/2019 RECEIVED NYSCEF: 06/18/2019 respondent's cross-motion are determined as follows: This is a special proceeding, commenced by the petitioner on January 24, 2019 by the filing of a petition. Petitioner is the owner and developer ofpropeity located at 41-62 Bowne. Street, Flushing, New York. Respondent is the owner of one of 1he properties adjacent to petitioner's project site. In a decision issued on January 26, 2018, in the matter entitled x· & .Y Developmeilf Group, I.LC v t.pic Tower LLC, AAA General Co11si1•uciion Corp., Cathay Bank, Yin Chou flU, aud Vicente A. Magistrado, Index Number 707065/16, Justice Diccia T. Pineda Kirwan directed that ''the defendants arc cnjoin_ed form continuing construction solely in the Alleyway, and must establish a proper monitoring program of defendant's property and the adjoining properties belorc recommencing construction''. The Alleyway ref-erred to in Justice Pineda Kirwan's order encompasses the following area: "[a]t the southern boundary of plaintiff's property and the northern boundary of defendant's property is a triangular parcel of land, ... which runs 150.22 feet to the westerly side of Bowne Street on a northeast angle, and whose ownership was disputed by the part.ies. A rt~ctangular strip of land north of the Triangk·., and undisputedly on plaintiffs property runs approximately 150 feet east and west by approximately 7 foet northand south". According to the petition, petitioner is doing work adjacent to respondent's property, and in accorda11cc with the New York City Building Code has been advised by its expe1t Structural Engineer, Thomas Pctracca, P.E., that it is required to conduct the following: a precons1ructio11 survey; install monitoring on the interior and exterior walls of respondent's building; erect and install a temporary cantilevered moveable overhead protection system (in the f:om1 of a single cantilevered needle beam structure), rt~mporary work platfonns, concrete fonn pins, and scaffolding and debris safety netting over respondent's alleyway. Petitioner alleges that this work is necessary in order for pe.titioner and its contractors to perform their work on the Project and to protect and ensure the safety of the Adjacent Property, the alleyway, the public, and all of respo11dent's employees, invitees, and respondent's rea.l property, while the petitioner's project is being constructed. In the instant action, petitioner assc.rts that the erection of the a single cantilevered needle beam structure, temporary work platforms, cc,ne-rete form pins, and scaffolding and debris safety netting over respondent's alleyway is necessary and reasonable. In the petition, petitioner alleges that in compliance with the NYC Building Code, it has obtained a set of DOB approwd site safety protec.tion plans whic.h, rather than placing a sidewalk shed on top of the alleyway itself, utilizes Needle Beam Scaffolding suspended from the petitioner's building, such that the design of same does not actually touch the resp(.)ndent's alleyway, except during the installation of the overhead needle beam protection. Petitioner further Page -2- 2 of 5 [* 3] FILED: QUEENS COUNTY CLERK 06/18/2019 03:15 PM NYSCEF DOC. NO. 86 INDEX NO. 701421/2019 RECEIVED NYSCEF: 06/18/2019 alleges that because it intends on using a Cantilevered Suspended Needle Beam Scaffolding Protection Plan rathe1· than a sidewalk shed (which would have been much less expensive), the petitioner will be able to raise the height of the Needle Beam Scaffolding protection so as to allow the respondent to utilize its alleyway if it so desires during petitioner's construction of its new building. Petitioner has attached a copy of it's NYC DOB approved Site Safety Logistic Plan as Exhibit C. Petitioner also alleges that the respondent is acting in bad faith. Petitioner alleges that access will be required as soon as the Court permits, and the protective measures required by the NYC DOB will be removed as soon as no longer necessary. Petitioner alleges that the respondent will not any suffer any material loss, inconvenience, or hardship, if this application is granted. Petitioner alleges that any inconvenience to respondent is temporary and clearly outweighed by petitioner's ownership interests in improving its property and preventing the loss of tax abate-men ts and other financial loss. Petitioner alleges that the granting of a license is required to protect it's interests in the lawful use and improvement of its ovm propcity, and the equities weigh in its -favor. Without such license allowing access to the Adjacent Property, petitioner alleges that it will not be able to continue its improvement work due to the NYC Administrative Code's requirement to install the enumerated protections. Petitioner farther alleges that it and/or its contractor already have liability insurance in place. Petitioner also alleges that the respondent has acted in bad faith. Accordingly, petitioner requests that the Court issue, pursuant to RP APL § 881, petitioner and its architect, engineers, consultants, and/or contractors, a license for the following: (i) To immediately enter the Adjacent Property to conduct a pre~construction survey, including but not limited to visually inspect, take photographs of, and document the cui,-ent condition of the Adjacent Prope1ty; (ii) To enter the Adjacent Propc1ty i_mmediately thereafter to install monitoring on the interior and exterior walls of Respondent's property and other locations as required by the NYC Building Code; (iii) To enter the Adjacent Property immediately thereafter to erect and install in the air space of Respondent's property and alleyway: the temporary cantilevered moveable overhead protection system, temporary work platfom1s, concrete form pins, and scaffolding and debris safety netting, over Respondent's alleyway, in connection with the work to be perfom1ed at the Pr~ject Site; (iv) To have limited access through the portions of Respondent's Page -3- 3 of 5 [* 4] FILED: QUEENS COUNTY CLERK 06/18/2019 03:15 PM NYSCEF DOC. NO. 86 INDEX NO. 701421/2019 RECEIVED NYSCEF: 06/18/2019 building situated on the Adjacent Property in order to install, take readings o.f, and remove the monitors and protection system upon completion of the work; (v) To enter the Adjacent Property for a period of twenty-four (24) months .from the date access is granted at reasonable times and upon reasonable notice, to maintain and inspect the monitors and the protection work, and to remove the monitors and overhead protection system upon completion of the work; (vi) To access the Adjacent Property and have access on weekdays between the hours of 8 am and 5 pm, in order to perfonn the required protective measures described herein, with such protective measures to remain in place for twenty-four (24) consecutive months or a longer or shorter period as required by the NYC Department of Buildings. Respondent has only submitted opposition to the order to show cause, and papers in support of its cross-motion, for an order dismissing petitioner's request for a license pursuant to RP APL § 881, consolidation; and contempt. The Cour~ notes that on February 19, 2019, the parties executed a stipulation consenting to consolidating for joint trial this action with th!.:: action entit1edX & Y Development Group, LLC v Epic Tower LLC, AAA General Construction Corp, Cathay Bank, Yin Chou HU, and Vincente A. Magistrado, Index Number 707065/16. Pursuant to this stipulation, the Court issued an order granting the joining these actions for joint trial on February 19, 2019. Therefore, the branch of the cross-motion seeking a consolidation has been resolved. In its opposition to the order to show cause and in support of its cross motion, respondent asserts that prior to January 24, 2019, petitioner had installed the protection they are seeking pem1.ission in violation of the preliminary injunction, a.nd without ar1y required permission to install such protec.tion or request/issuance of a License Agreement. Respondent also disputes any claims of bad faith. "A motion to vacate or modify a preliminary injunction is addressed to the sound discretion of the court and may be granted upon compelling or changed circumstances that render continuation of the injunction inequitable"' (fl1ompson v 76 Com .. 54 AD3d 844, 846 [2008], quoting Wcllbilt Equip. Corp. v Red Eye Grill, 308 AD2d 41.1, 411 [2003]; see CPLR 6314; Thompson v 76 Corp., 37 AD3d 450, 452-453 [2007] ). With this special proceeding, petitioner seeks an order, pursuant to RP APL §881, granting it a license to enter upon portions of respondent's property. In detem1ining the issue of whether to grant Page-4- 4 of 5 [* 5] FILED: QUEENS COUNTY CLERK 06/18/2019 03:15 PM NYSCEF DOC. NO. 86 INDEX NO. 701421/2019 RECEIVED NYSCEF: 06/18/2019 ., petition er a license pursuan t to RPAPL §88 l, the court must apply a "standar d of reasonableness" (Mindel v Ph9enix Owners Com.,, 210 AD2d 167 [l st Dept. 1994], Iv denied 85 NY2d 811 [1995]). RP APL §88 l is ''a codification of well-set tled principl es of jurispru dence expound ed by [New York] courts ... dealing with conflict ing interests of adjacen t property owners" (Chase Manhat tan Bank fNat. Assn.] v Broadw ay, Whitney Co., 57 Misc ~d 1091., 1096 [Sup. Ct. Queens Co. 1968], affinned 24 NY2d 927 [1969]). The Court finds that the petition er has set forth a sufficien t basis to modify the January 26, 20 t 8 order, to the extent that a hearing is necessary to determi ne the necessity and reasonab leness of the requeste d license pursuan t to RPAPL 881, and if the Court grants the petition er's request, the terms upon which said license shall. issue. Accordi ngly, it is, ORDER ED, that the determi nation of this order to show cause and cross-m otion are held in abeyanc e pending a hearing on the issue of the necessit y and reasona bleness of the requested license, and if said request is granted the terms upon which the li.cense shall issue, and it is ORD:EREU, that both parties are directed to appear with their expert witnesses for a hearing on the issue on Monday , July 22, 2019 in Part 36, Courtro om 103 at 10:30 AM. A copy of this order is being mailed lo counsel for both part~ ~ /g' ~~ Dated: June 6, 2019 ROBER T .I. CALOR AS, .l.S.C. Page -5~ 5 of 5

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