Board of Mgrs. of 40 W. 20th St. Condominium v Hajdar Holding Ltd.

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Board of Mgrs. of 40 W. 20th St. Condominium v Hajdar Holding Ltd. 2020 NY Slip Op 32126(U) July 1, 2020 Supreme Court, New York County Docket Number: 160543/2019 Judge: Debra A. James 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. [*FILED: 1] NEW YORK COUNTY CLERK 07/02/2020 03:35 PM NYSCEF DOC. NO. 55 INDEX NO. 160543/2019 RECEIVED NYSCEF: 07/02/2020 SUPREME COURT OF THE STATE OF'NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART lAS MOTION 59EFM Justice -------------------------------------------------------------------------- X 160543/2019 INDEX NO. THE BOARD OF MANAGERS OF 40 WEST 20TH STREET CONDOMINIUM, 03/10/2020 MOTION DATE 001 MOTION SEQ. NO. Petitioner, -vDECISION + ORDER ON MOTION HAJDAR HOLDING LTD., Respondent. --------------------------------------------------------------------------- X The following e-filed documents, listed by NYSCEF document number (Motion 001) 30, 32, 33, 34, 35, 36,37,38,39,40,41,42,43,44,45,46,47,48,49,50,51,52,53 were read on this motion for MISC. SPECIAL PROCEEDINGS ORDER Upon the foregoing ORDERED respondent's affirmative (trespass), and fifth defenses defenses third (permanent respondent's it is that reply of petitioner and the affirmative second documents, answer seeking and counterclaims and the first (negligence), injunction) are dismissed dismissal of is granted (private nuisance), fourth counterclaims (strict liability) interposed in their entirety; in and it is further ORDERED license, with a license commencement granted; 160543/2019 that pursuant to RPAPL 5 881, the petition term of five months of access by petitioner for a from the as set forth hereunder, is and it is further BOARD OF MANAGERS OF 40 VS. of 9 HAJDAR1 HOLDING LTD. Page 1 of 9 [*FILED: 2] NEW YORK COUNTY CLERK 07/02/2020 03:35 PM INDEX NO. 160543/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/02/2020 ORDERED that, commencing, from, service issuance of this order with notice of the additional respondent on the policy insurance, which policy than $2 million, a license, portion of respondent's building West") located erect and/or install, is hereby (Adjacent Property) of the roof and backyard of determining to (1) perform area of the maintain install, maintain ("48 ("Roof Protection and thereafter Work"); remove located at 48 West; once erected of performing for the purpose New York, New York at 48 install, on the and use the and scaffolding repair work to the fa~ade of the building West 20:h Street, located (5) access roof protection (3) remove protective scaffolding roof and the afore-described area of Work"); (4) erect and/or suspended protection and on the backyard area of the building Protection and thereafter the appropriate materials at 48 West on the backyard roof of the building maintenance not less to RPAPL 881, to enter upon a (2) erect and/or located maintain, in an amount is later, petitioner remove protective ("Backyard liability h the building West or from the in the name of general coverage days at 48 West 20: Street, New York, New York for both areas; materials provides land for the purpose thereafter of commercial pursuant inspection of entry, insured endorsement whichever granted an initial no less than thirty and located (the "FISP Repair at 40 Work"); and it is further 160543/2019 Mntinn Nn BOARD OF MANAGERS nn1 OF 40 VS. of 9 HAJDAR2 HOLDING LTD. Page 2 of 9 [*FILED: 3] NEW YORK COUNTY CLERK 07/02/2020 03:35 PM INDEX NO. 160543/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/02/2020 ORDERED that the Roof Protection Work, Backyard Work and FISP Repair Work shall be carried aforesaid pursuant to the customary used in the building engineer licensed petitioner; that the granting shall take the necessary the completion within original condition, any resultant (3) petitioner damage, Mntinn Nn debris by shall save respondent of commercial Property; by petitioner during (2) upon to its the period general and area; from any damages of this liability insurance, for contractual injury and property as additional the period insured, shall be of this license; shall be held liable to respondent of 9 LTD. OF 40 vs. HAJDAR3 HOLDING and for any it may suffer as a result of the granting BOARD OF MANAGERS nn1 to the Adjacent harmless to, coverage injury, bodily is (1) petitioner from such license the license area, during personal which license used in construction shall be removed but not limited (4) petitioner 160543/2019 by an and precautions to the Adjacent which names respondent maintained damages steps, measures, and all materials and a policy liability, of the foregoing such license area shall be returned within including practices as certified of the term of the license, Property license, industry terms and conditions: and avoid any damage occurring and standard in the State of New York and retained to the following prevent out as and it is further ORDERED subject construction Protection of this Page 3 of 9 [*FILED: 4] NEW YORK COUNTY CLERK 07/02/2020 03:35 PM NYSCEF DOC. NO. 55 INDEX NO. 160543/2019 RECEIVED NYSCEF: 07/02/2020 license and all damaged expense of petitioner; ORDERED the amount payment property that petitioner of $ 3,000.00 on the York County shall tender, monthly payable as the licensing to respondent, which to the office of respondent's an undertaking shall post with the Clerk of New in the amount of $ to be determined by a JHO/Special Referee, attorneys' and professional engineers' respondent as the result of such license and petitioner's the completion Property ORDERED this matter to respondent; written having Esqs., Mntinn Nn by entry and upon such amount shall be and it is further on before this OF 40 and Elliot having been represented VS. Esq., pursuant of 9 HAJDAR4 HOLDING LTD. pursuant oral argument by Jeremy E. Deutsch F. Cohen, 10, to of the having been represented to the court that a reference BOARD OF MANAGERS nn1 court on March for a license Law 5 881 at and the petitioner therewith by Jeffrey it appearing to such license, of the petitioner and the respondent therewith 160543/2019 come and Proceedings submissions, in connection fees incurred that 2020, on application Real Property pursuant to cover reasonable of the term of the license, paid by petitioner of and it is further that petitioner upon the Adjacent fee, 1st day of each such month until completion the term of the license; ORDERED at the sole and it is further shall be delivered attorney, shall be repaired J. Coz, in connection to CPLR 4317, and to determine is Page 4 of 9 [*FILED: 5] NEW YORK COUNTY CLERK 07/02/2020 03:35 PM INDEX NO. 160543/2019 NYSCEF DOC. NO. 55 proper RECEIVED NYSCEF: 07/02/2020 and appropriate pursuant to CPLR 4317 (a), it is now hereby ORDERED Referee that a Judicial shall be designated Hearing Officer to determine ("JHO") or Special the following individual issue of fact, which is hereby submitted to the JHO/Special Referee for such purpose (1) the issue of the reasonable attorneys respondent as the result Property New pursuant York of and professional and an such upon termination undertaking, engineering of petitioner's to such license, County, respondent amount entry to be posted amount to be paid to cover fees incurred upon by the Adjacent with the Clerk of by petitioner to of the license; and it is further ORDERED be that the powers limi ted beyond otherwise indicated; ORDERED Referee Clerk placement Special the that limi tat ions Referees Part possible (Part SRP), Mntinn Nn matter BOARD OF MANAGERS nn1 in the shall not CPLR at OF 40 the VS. referred to the unless Special or spref@nycourts.gov) date upon the calendar which, (which are posted at www.nycourts.gov/supctmanh 160543/2019 forth is hereby (Room 119, 646-386-3028 at the earliest this set Referee and it is further this matter Rules of that Part assign of the JHO/Special at the initial of 9 HAJDAR5 HOLDING in accordance on the website "References" appearance LTD. to for of the with the of this court link), an shall available Page 5 of 9 [*FILED: 6] NEW YORK COUNTY CLERK 07/02/2020 03:35 PM INDEX NO. 160543/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/02/2020 JHO/Special Referee ~o determine as specified above; and it is further ORDERED that counsel and counsel for petitioner this Order, submit "References" link information called thereafter, parties immediately sha:l, wittin to the Special e-mail or 9186) shall on the for the calendar fixed of the Special ORDERED that hearing, including present, and the date fixed and the parties with shall by the Referees be the all witnesses ready to Special Special adjournment that may be authorized another (212-401- (accessible at the containing all the as soon as practical for the of the matter upon Part; and it is further shall in appear for the and evidence proceed Referee wi th Clerk Refer-ees Part, reference they seek JHO/Special the hearing, for the initial only to subj ect by the Special Referees Mntinn Nn on any Part in that, except as otherwise directed by the assigned Referee for good cause shown, the trial of the issue(s) above shall proceed must arrange from day to day until completion their schedules BOARD OF MANAGERS nn1 OF 40 VS. and and those of their witnesses accordingly. 160543/2019 to with the Rules of that Part; and it is further ORDERED counsel that, for the appearance appearance specified Sheet by fax the Special Referee Clerk shall advise counsel of the date accordance Clerk co-...:rt's website) therein one 15 days from the date of Referee Information an consult 6 of 9 HAJDAR HOLDING LTD. Page 6 of 9 [*FILED: 7] NEW YORK COUNTY CLERK 07/02/2020 03:35 PM INDEX NO. 160543/2019 NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/02/2020 DECISION With respect respondent respect which to its counterclaim submits no evidence to the photographic for private t~at raises an issue of fact with ev~dence submitted reveal not only that the show windows obstructed, but also that such windows all, by the sidewalk essential erected element are not unreasonably are not obstructed nuisance unreasonably that the sidewalk interferes use of its land, has been refuted as a matter Irving Place Corp. v 30 IFving LLC, 57 Misc.3d Ct., N.Y. County Likewise, defeated by the irrefutab~e sidewalk shed is required Respondent's meritorious physical at the shed with respondent's See 22 of law. 253, 256 (Sup. 2017). respondent's 22 Irving_Place, by both parties, Thus, as argued by petitioner, shed. of private by petitioner nuisance, counte~claim docu~entary for trespass evidence is that the by law and is for public safety. See supra. counterclaim cause of action for negligence as respondent fails to state a does not allege any harm to its land. Inc., 22 N.Y.3d 439, 446 This court likewise (2013). concurs with petitioner respondent's strict liability counterclaim fails as it alleges that (sounding in negligence) only a violation of a local law 7 of 9 1I:.nu.'U?n1Q RnA~n n~ MANA~I=RS OF 40 vs. HAJDAR HOLDING LTD. Page 7 of 9 [*FILED: 8] NEW YORK COUNTY CLERK 07/02/2020 03:35 PM NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/02/2020 and does not allege Ell i0 t t_y __ S) tY 0 any violation of a Sta~e statute. RPAPL 5 881 interposed for ~~j~~ctive relief pursuant in this special proceeding Matter of the Port of New York Autho~~ty Realty Co., Inc., 18 NY2d 250, 255 that petitioner has met i~s prima that the harm that would res~~t shed outweighs compelling the benefit its removal. that the contrary As petitioner V!. i~ t~e removal of the sidewalk Warren McGover~, See Kim}?clllv Bay Ridge Uni ted (2d Dept. 2018). the reasonableness the pe~ition and for a license pursuant See Van Dorn Holdings, LL~~ 83 AD3d 438 LLC v Assou}ineRit~~~LC, in has failed to even assert 58:'-Owner.s Coq:~_~_-, 149 AD3d 518 v Pavarini finds of demonstrating has demonstrated to RPAPL 5 881 shall be granted. Street facie burden Responden~ of the trespass, v 62 Cortlandt to be gained by respondent is the case. to (see In the [1966J), this court Me!_hodist C.hurch, 157 AD 3d 877, 878 necessity See f New Yo r::k , 95 ~. Y .2d 730, 734 (2001) . On the counterclai~ 152 INDEX NO. 160543/2019 LLC v (1'"Dept. 2017); Moskowitz (1st Dept 2011); 138 AD3d 539 (1 0 - and DDG Dept. 2016) . 160543/2019 BOARD OF MANAGERS 8 of 9 OF 40 vs. HAJDAR HOLDING LTD. Page 8 of 9 [*FILED: 9] NEW YORK COUNTY CLERK 07/02/2020 03:35 PM NYSCEF DOC. NO. 55 RECEIVED NYSCEF: 07/02/2020 It is within contemporaneous and engineers' this co~rt's license discretion to award respondent fees as well as reasonable attorneys' fees that it has inccrred review of the plans and in connection Van Dorn Holdings, t l " CASE DISPOSED CHECK ONE: D GRANTED NON.FINAL GRANTED DENIED CHECK IF APPROPRIATE: ~ INCLUDES TRANSFER/REASSIGN ~ 9 of 9 __ .• _ __ .• •.• a "I" See ~ I""\~ .• " •• _ D~ktrJAtitS,'j.U. DISPOSITION IN PART SUBMIT ORDER SETTLE ORDER APPLICATION: with supra. DATE ~_. in connection with this proceeding. 7/1/2020 . INDEX NO. 160543/2019 UA InAD unl nlf\.lf': I Tn FIDUCIARY APPOINTMENT D 0 OTHER REFERENCE

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