The First Department, reversing Supreme Court, determined all the relevant factors had not been considered when granting petitioner’s application for access to respondent’s neighboring property to install roof and terrace protection related to work on the facade of petitioner’s building. The matter was remitted for a determination whether less intrusive methods of roof protection could be used:
Supreme Court improvidently granted petitioner’s application for access to respondent’s neighboring property in order to effectuate repairs to petitioner’s property pursuant to RPAPL 881. “Although the determination of whether to award a license fee is discretionary, in that RPAPL 881 provides that a ‘license shall be granted by the court in an appropriate case upon such terms as justice requires,’ the grant of licenses pursuant to RPAPL 881 often warrants the award of contemporaneous license fees” … . This is because “‘the respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it. . .Equity requires that the owner compelled to grant access should not have to bear any costs resulting from the access'” … . Furthermore, “[c]ourts are required to balance the interests of the parties and should issue a license when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license is refused” … .
In granting access, Supreme Court permitted petitioner to designate a controlled access zone and to place roof protection on respondent’s terraces. The roof protection petitioner seeks to install is placed directly on top of the floors of respondent’s terraces and according to respondent would completely prohibit the tenants of the terraced apartments from using any portion of their terraces. Prior to the granting petitioner’s application, Supreme Court must consider and resolve the issue as to whether there are less intrusive and equally effective methods of roof protection … . Matter of 400 E57 Fee Owner LLC v 405 E. 56th St. LLC, 2021 NY Slip Op 02587, First Dept 4-29-21