Habitat Mosaic Brooklyn, LLC v Zion 126, Inc.

[*1] Habitat Mosaic Brooklyn, LLC v Zion 126, Inc. 2023 NY Slip Op 51128(U) Decided on October 24, 2023 Supreme Court, Kings County Maslow, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 24, 2023
Supreme Court, Kings County

Habitat Mosaic Brooklyn, LLC, Petitioner,

against

Zion 126, Inc., Respondent.



HABITAT MOSAIC BROOKLYN, LLC, Petitioner,

against

HOWARD AVENUE ASSOCIATES, LP, Respondent.



HABITAT MOSAIC BROOKLYN, LLC, Petitioner,

against

PROSPECT ARMS, LP, Respondent.



HABITAT MOSAIC BROOKLYN, LLC, Petitioner,

against

PARK ESTATE 26, LLC, Respondent.



HABITAT MOSAIC BROOKLYN, LLC, Petitioner,

against

EGHOSA AGHO and OGHOSA AGHO, Respondents.



Index No. 522444/2023



Tesser & Cohen, New York City (Matthew Lakind of counsel), for Petitioner.

Law Office of Mary T. Dempsey, P.C., New York City (Mary T. Dempsey of counsel), for Respondent Zion 126, Inc.

Bruck LLP, Brooklyn (Yair Bruck of counsel), for Respondents Howard Avenue Associates, LP and Prospect Arms, LP.

Law Offices of Jay S. Markowitz, Williston Park (Jay S. Markowitz of counsel), for Respondent Park Estate 26, LLC.

Sinayskaya Yuniver P.C., Brooklyn (Steven Ross Yuniver of counsel), for Respondents Eghosa Agho and Oghosa Agho.
Aaron D. Maslow, J.

The following papers were read on these special proceedings:

Habitat Mosaic Brooklyn, LLC v Zion 126, Inc., Index No. 522444/2023
Petitioner's Order to Show Cause, Petition, Affidavit in Support, Exhibits; Respondent's Notice of Appearance; other documents (NYSCEF Doc Nos. 1-20)

Habitat Mosaic Brooklyn, LLC v Howard Avenue Associates, LP, Index No. 522452/2023
Petitioner's Order to Show Cause, Petition, Affidavit in Support, Exhibits; other documents (NYSCEF Doc Nos. 1-17)

Habitat Mosaic Brooklyn, LLC v Prospect Arms, LP, Index No. 522475/2023
Petitioner's Order to Show Cause, Petition, Affidavit in Support, Exhibits; other documents (NYSCEF Doc Nos. 1-19)

Habitat Mosaic Brooklyn, LLC v Park Estate 26, LLC, Index No. 522478/2023
Petitioner's Order to Show Cause, Petition, Affidavit in Support, Exhibits; Respondent's Notice of Appearance, Affirmation in Opposition; other documents (NYSCEF Doc Nos. 1-23)

Habitat Mosaic Brooklyn, LLC v Agho, Index No. 522485/2023
Petitioner's Order to Show Cause, Petition, Affidavit in Support, Exhibits; other documents (NYSCEF Doc Nos. 1-18) I. Questions Presented

Does a not-for-profit corporation formed for the basis of developing housing in coordination with the New York City Department of Housing Preservation and Development as part of the latter's Urban Development Action Area Project possess standing to maintain a Real Property Actions and Proceedings Law (RPAPL) § 881 special proceeding seeking a court-ordered license to encroach upon an adjoining landowner's property to facilitate developing the housing when the aforesaid corporation does not yet have title to the property which it will develop?

II. Introduction

This decision is issued in connection with five special proceedings, all commenced by the same petitioner seeking the identical relief: a judgment granting it a license to ncroach upon an adjoining landowner's property to facilitate developing housing in Brooklyn as part of the New York City Department of Housing Preservation and Development's Urban Development Action Area Project. The property to be developed and the property (in Brooklyn) for which Petitioner seeks a license entitling it to encroach upon is different in each special proceeding:

Habitat Mosaic Brooklyn, LLC v Zion 126, Inc., Index No. 522444/2023: Petitioner will purportedly acquire 175 Buffalo Avenue (Block 1363, Lot 7), and the property which Petitioner seeks a license to encroach upon is 175A Buffalo Avenue (Block 1363, Lot 6).

Habitat Mosaic Brooklyn, LLC v Howard Avenue Associates, LP, Index No. 522452/2023: Petitioner will purportedly acquire 638 Howard Avenue (Block 3511, Lot 64), and the property which Petitioner seeks a license to encroach upon is 642 Howard Avenue (Block 3511, Lot 65).

Habitat Mosaic Brooklyn, LLC v Prospect Arms, LP, Index No. 522475/2023: Petitioner will purportedly acquire 1625 Prospect Place (Block 1363, Lot 60), and the property which Petitioner seeks a license to encroach upon is 1621 Prospect Place (Block 1363, Lot 62).

Habitat Mosaic Brooklyn, LLC v Park Estate 26, LLC, Index No. 522478/2023: Petitioner will purportedly acquire 1831 Park Place (Block 1464, Lot 79), and the property which Petitioner seeks a license to encroach upon is 1829 Park Place (Block 1464, Lot 81).

Habitat Mosaic Brooklyn, LLC v Agho, Index No. 522485/2023: Petitioner will purportedly acquire 398 Howard Avenue (Block 1451, Lot 40), and the property which Petitioner seeks a license to encroach upon is 400 Howard Avenue (Block 1451, Lot 41).

The special proceedings came before this Court for argument on October 12, 2023, having been previously adjourned. A request for another adjournment by some of the parties was denied because special proceedings are designed to resolve matters which do not call for extended litigation and are best resolved expeditiously (see Columbus Prop. Inc. v I S K S Realty Corp., 163 Misc 2d 446, 448 (Civ Ct, NY County 1994).

Petitioner Habitat Mosaic Brooklyn, LLC ("Petitioner") is a New York not-for-profit [*2]corporation, which has been designated as the "Developer" through the New York City Department of Housing Preservation and Development, pursuant to a letter of negotiation, with respect to each of the aforementioned real properties it will acquire (the "Properties") (see NYSCEF Doc No. 5, Letter of Negotiation, in Habitat Mosaic Brooklyn, LLC v Agho, Index No. 522485/2023, at 1-3)[FN1] .

Petitioner informs the Court that "[t]he City of New York is the current owner of the Property" (see NYSCEF Doc No. 12, Haycox Aff, in Agho, ¶ 6), which information shall prove crucial to the determination of this matter.

The City Council has approved Petitioner's development of the Properties as part of an Urban Development Action Area Project (see NYSCEF Doc No. 6, City Council Approval, in Agho, at 1-5).

While Petitioner reveals that the City of New York is the present owner of the Properties, Petitioner sows confusion as to its ownership interest in the Properties by repeatedly employing the phrase "Petitioner's Property" in its moving papers (see NYSCEF Doc No. 12, Haycox Aff, in Agho, ¶¶ 5, 7, 14, 18, Wherefore Clause). The misleading phrase "Petitioner's Property" even made an appearance in both pages of the Order to Show Cause (NYSCEF Doc No. 13, Order to Show Cause, in Agho, at 1, 2).

Further underscoring that Petitioner does not presently own the Properties, Petitioner assures the Court, in the context of the second Order to Show Cause [FN2] , that "Habitat will become the Owner of the Property and closing is expected to occur in late August/early September of 2023" (NYSCEF Doc No. 12, Haycox Aff, in Agho, ¶ 8). Petitioner explains that it intends to develop the Properties to create affordable housing and improve the Properties and surrounding areas (see id. ¶ 9).

In its second order to show cause in Agho, Petitioner seeks a judgment [FN3] , pursuant to RPAPL § 881, granting Petitioner—as soon as it closes on the sale of the property located at 398 Howard Avenue, Brooklyn, New York 11233, Block 1451, Lot 40 — a license to enter upon a portion of Respondents' property, located at 400 Howard Avenue, Brooklyn, New York 11233, Block 1451, lot 41 to "perform a preconstruction survey, sidewalk shed, optical/vibration/crack monitoring, roof protection, and a property line fence, for the purpose of Petitioner being able to complete its construction project at Petitioner's Property"[FN4] (see NYSCEF Doc No. 13, Order to Show Cause, in Agho, at 1-2).

III. Petitioner's Contentions

Petitioner characterizes as follows the relief that it seeks in Agho [FN5] through its order to show cause:

Habitat is seeking an Order pursuant to RPAPL 881 stating that immediately upon closing of the sale of the Property to Habitat, it may enter upon the adjacent Respondent's Property for the purpose of performing certain pre-construction surveys and protective measures work, as detailed below.(See NYSCEF Doc No. 12, Haycox Aff, in Agho, ¶ 13.)

Petitioner underscores that it is not seeking to enter upon the adjacent Property until after it closes on the purchase of the Property (see id. ¶ 14).

Petitioner endeavors to justify its strategy decision to interpose an order to show cause before owning the Properties on the ground that it hopes to avoid any delay between closing on the purchase of the Properties and the start of its construction work (see id. ¶ 10).

Moreover, Petitioner explains that the construction is being financed through a construction loan and that the lending institution is requiring assurance that Petitioner will have access to the adjacent properties in order to "put in place the required protective measures immediately, and avoid any delay between closing on the loan, the sale of the Property, and the start of construction" (see id. ¶ 11).

Petitioner contends that it has made multiple efforts to obtain Respondent's consent for entry upon a portion of their properties, to no avail (see id. ¶ 21).

IV. Respondents' Contentions

In Habitat Mosaic Brooklyn, LLC v Zion 126, Inc., Index No. 522444/2023, no written opposition was filed but counsel did appear at oral argument to oppose the petition; she also opposed it orally in extensive detail when this proceeding first came on before this Court on September 7, 2023, emphasizing that Petitioner had not yet acquired title and that many details concerning the encroachment upon her client's property had not yet been disclosed.

In Habitat Mosaic Brooklyn, LLC v Howard Avenue Associates, LP, Index No. 522452/2023, no written opposition was filed but counsel did appear at oral argument and maintained that Petitioner lacked standing, there had been no consultation between Petitioner's engineer and his client, and no insurance policy was proffered.

In Habitat Mosaic Brooklyn, LLC v Prospect Arms, LP, Index No. 522475/2023, no written opposition was filed but the same counsel who appeared for the respondent in the case referenced in the preceding paragraph represented Respondent herein and offered the same arguments.

In Habitat Mosaic Brooklyn, LLC v Park Estate 26, LLC, Index No. 522478/2023, written opposition by the respondent was filed and counsel appeared at oral argument. Lacking from Petitioner, he claimed, were relevant plans regarding access, and insurance specifics were [*3]not provided. In written opposition, the following salient points were made: (1) Petitioner did not own the property adjacent to the client yet, so there was no standing pursuant to RPAPL § 881; (2) The proposed license agreements annexed to the order to show cause did not contain provisions to compensate Respondent for its costs and expenses relating to the requested access and likewise did not compensate the Respondent for the inconvenience to be caused by Petitioner's requested access; and (3) The petition lacked details, specifics, or supporting documents concerning the proposed protections to be installed on Respondent's property.

In Habitat Mosaic Brooklyn, LLC v Agho, Index No. 522485/2023, no written opposition was filed but counsel did appear for Respondent at oral argument and maintained that his client was "looking for protection and arrangements."

V. Discussion

Petitioner relies upon RPAPL § 881 as a vehicle to obtain judgment directing Respondents to permit Petitioner to enter upon Respondents' Properties.

While on the surface, Petitioner's reliance on RPAPL § 881 appears sensible, upon closer review of the statute in question, coupled with the unorthodox circumstances presented by Petitioner's special proceedings, one is constrained to conclude that Petitioner lacks standing to seek relief under RPAPL § 881, which provision reads 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.(RPAPL § 881 [emphasis added]).

The New York legislature expressly narrowly circumscribed the scope of RPAPL § 881 to "an owner or lessee," which limited scope is readily understandable, lest owners of property be subject to entry upon their land by a phalanx of entities without a legally cognizable interest in an adjoining property.

Insofar as Petitioner concedes that it is not an "owner" of the Property, one can only conclude that it does not come within the purview of RPAPL § 881.

Petitioner's valiant efforts to come within the purview of RPAPL § 881 through its mantra that Petitioner is "soon to be the owner" of the Property (see NYSCEF Doc No. 3, Memorandum of Law, in Agho, at 2) is unavailing.

A review of RPAPL § 881 makes it plain that the statute in question is limited in scope to "an owner or lessee" (see RPAPL § 881), as distinguished from a soon-to-be-owner. Had the New York State legislature intended to include "soon-to-be-owners" as coming within the scope of RPAPL § 881, the statutory language would reflect such intent.

During oral argument, Petitioner emphasized the salutary nature of its endeavors to develop housing in New York City to address the dire shortage of same. The Court recognizes that indeed more housing is necessary to accommodate city dwellers of low and moderate incomes, as well as those persons who have made their way here voluntarily or involuntarily after escaping dire situations in their home countries (see Mihir Zaveri, How 100,000 Apartments in New York City Disappeared, NY Times, Oct. 19, 2023, available at https://www.nytimes.com/2023/10/19/nyregion/nyc-apartments-housing-crisis.html#:~:text=New%20York%20City%20is%20in,A%20longstanding%20shortage. [last accessed Oct. 24, 2023]).

"That an issue may be one of 'vital public concern' does not entitle a party to standing. . . . [A] litigant must establish its standing in order to seek judicial review." (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 769 [1991].) Standing requirements are not mere pleading requirements but rather an indispensable part of the plaintiff's case and therefore each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof (see Tilcon New York, Inc. v Town of New Windsor, 172 AD3d 942, 943-944 [2d Dept 2019]).

To ask this Court to depart from legislative intent, as reflected in the express language of the statute, is anathema to rudimentary separation of powers principles. "The courts in construing statutes should avoid judicial legislation; they do not sit in review of the discretion of the Legislature or determine the expediency, wisdom, or propriety of its action on matters within its powers" (McKinney's Cons Laws of NY, Book 1, Statutes § 73). Where standing is conferred by statute unambiguously, a court may not "imply standing for petitioner through judicial interpretation" (Matter of Jessalyn AA., 276 AD2d 97, 98 [3d Dept 2001]; see also Matter of Sheila T. v Arlene D., 56 Misc 3d 460, [Fam Ct, Dutchess County 2017], quoting McKinney's Cons Laws of NY, Book 1, Statutes § 73 ["While the courts may sometimes depart from the literal wording of an enactment when such departure is necessary to further the legislative intent, when the intent of the lawmakers is not in doubt, the courts cannot revise the legislation or do otherwise than to carry out its plain command."]).

The plain language of RPAPL § 881 makes clear that the sole parties with standing to commence a special proceeding under RPAPL § 881 are the "owner or lessee" of a property. Given that Petitioner qualifies neither as an owner nor as a lessee, it lacks standing to institute a special proceeding under the auspices of RPAPL § 881 against all the named Respondents.

Beyond having failed to rely on any reported case law supporting its novel interpretation of RPAPL § 881 (namely, that this statute applies not merely to "an owner or lessee," but also to an entity that purports "soon to be the owner" of a property), the case law cited by Petitioner in its Memorandum of Law only further underscores that RPAPL § 881 applies solely to "an owner or lessee," as distinguished from an entity "soon to be the owner" of a property.

As held in a case cited by Petitioner in its Memorandum of Law, which case emphasizes as follows that RPAPL § 881 applies to an owner or lessee of property:

Section 881 of the Real Property Actions and Proceedings Law was enacted to provide a special proceeding where an owner or his lessee, in an appropriate case, may obtain a license to enter upon adjoining property to make improvements or repairs to his own property.(Chase Manhattan Bank [Natl. Assn.] v Broadway, Whitney Co., 59 Misc 2d 1085, 1086 [Sup Ct, Queens County 1969] [emphasis added]).

Likewise, in another case cited by Petitioner in its Memorandum of Law, then-Supreme Court Justice Doris Ling-Cohan, after remarking that "there are very few reported cases which discuss RPAPL § 881," granted the petition instituted by the owner of a building (to wit, petitioner 10 East End Avenue Owners, Inc.) for a license, pursuant to RPAPL § 881, to enter upon respondent's property, which abutted petitioner's property (see 10 E. End Ave. Owners, Inc. v Two E. End Ave. Apt. Corp., 35 Misc 3d 1215[A], 2012 NY Slip Op 50712[U] [Sup Ct, NY County 2012]). In 10 E. End Ave. Owners, Inc., relied upon by Petitioner, the Supreme Court did not broach the novel concept of an alleged soon-to-be-property owner's status under RPAPL § 881 (see id.).

On the original return date of the order to show cause, Petitioner advised this Court that in a similar separate special proceeding, Habitat Mosaic Brooklyn, LLC v Eubanks, Index No. 519092/2023 (Sup Ct, Kings County 2023), the court granted the petition therein to enter upon the adjoining property. This Court respectfully disagrees with the outcome and notes that the brief decision mentioned that the disposition was effected "without opposition." Here, attorneys appeared for all the respondents.

VI. Conclusion

Accordingly, the petitions in the within five special proceedings are DENIED. Judgments to that effect have been signed by this Court.

HON. AARON D. MASLOW
Justice of the Supreme Court of the
State of New York Footnotes

Footnote 1:References to documents are to those in the Habitat Mosaic Brooklyn, LLC v Agho special proceeding. Other proceedings have similar or the same documents.

Footnote 2:The first order to show cause was not signed due to the supporting affidavit lacking an index number.

Footnote 3:A special proceeding must culminate in a judgment (see CPLR 411; Matter of Leblon Consultants (Jackson China), 92 AD2d 499 [1st Dept 1983]).

Footnote 4:The misleading defined phrase "Petitioner's Property" reemerges in the operative section of the order to show cause (see NYSCEF Doc No 13, Order to Show Cause, in Agho, at 2).

Footnote 5:Again, the discussion herein of Petitioner's position in Agho is representative of the same positions taken in the other special proceedings.