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IN AN ACTION FOR A LICENSE PURSUANT TO RPAPL 881 TO ALLOW PETITIONER ACCESS TO RESPONDENTS’ ABUTTING BUILDING TO FACILITATE CONSTRUCTION WORK ON PETITIONER’S BUILDING, RESPONDENTS ARE ENTITLED TO LICENSE FEES, ATTORNEY’S FEES, ENGINEERING FEES, ETC., ASSOCIATED WITH PROTECTING THEIR BUILDING AND TO COMPENSATE FOR INTERFERERENCE WITH THE USE OF THEIR BUILDING, IRRESPECTIVE OF WHETHER THERE IS ANY DAMAGE TO RESPONDENTS’ BUILDING (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Acosta, affirmed the grant of a license to petitioner, pursuant to RPAPL 881, to enter respondents’ abutting property to protect the abutting property during construction work on petitioner’s building, but vacated or reduced some of the specific costs and/or damages awarded. The First Department noted that attorney’s fees, license fees and engineering fees, etc., associated with the respondents’ efforts to protect their building and the loss of use and enjoyment of their building during construction are properly assessed to the petitioner:

What petitioner seeks is essentially to compel respondents to grant it a license on its own terms. However, as we have recognized, because “[t]he respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it . . . [e]quity requires that the owner compelled to grant access should not have to bear any costs resulting from the access” … . Thus, the grant of licenses pursuant to RPAPL 881 often warrants the award of contemporaneous license fees … . Contrary to petitioner’s contention that a license fee constitutes a windfall unless there are some actual damages, such as lost business, we have found that a license fee is warranted “where the granted license will entail substantial interference with the use and enjoyment of the neighboring property during the [license] period, thus decreasing the value of the property during that time” … .

Similarly, a compulsory licensor should be entitled to reasonable attorneys’ and engineering fees … . Matter of Panasia Estate, Inc. v 29 W. 19 Condominium, 2022 NY Slip Op 00975, First Dept 2-15-22

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