The First Department, modifying Supreme Court, determined the respondent adjoining property owner was entitled to unrestricted indemnification from petitioner for damage to respondent’s property plus reasonable expert’s and attorney’s fees in this action by petitioner pursuant to RPAPL 881 for a temporary license to enter respondent’s property. Petitioner was doing demolition work on petitioner’s buildings and sought the license to install protections on respondent’s property. Supreme Court should not have limited respondent’s indemnification “to the extent covered by insurance.” And Supreme Court should have awarded respondent expert’s and attorney’s fee to the extent the fees are deemed reasonable:
RPAPL 881 allows a property owner to petition for a license to enter the premises of an adjoining owner when entry is necessary for making improvements or repairs to the petitioner’s property and the adjoining owners have refused access. The statute is designed to strike a balance between the petitioner’s interest in improving its property and the harm to the adjoining property owner’s enjoyment of its property … , and it gives the motion court the discretion to craft an appropriate remedy in connection with license and access “upon such terms as justice requires” … . Since a respondent compelled to grant access under RPAPL 881 does not seek out the intrusion and does not derive any benefit from it, equity requires that the respondent should not have to bear any costs resulting from the access … .
… [T]he judgment’s indemnity provision provides indemnification for third-party damage claims only “to the extent covered by insurance,” which unreasonably fails to shift the full risk to petitioner as is appropriate under RPAPL 881. Matter of 1643 First LLC v 1645 1st Ave. LLC, 2024 NY Slip Op 01111, First Dept 2-29-24
Practice Point: When a property owner seeks a temporary license to enter an adjoining property pursuant to RPAPL 881 in connection with construction work, the adjoining property owner is entitled to full indemnification for any damage as well as reasonable expert’s and attorney’s fees incurred because of the temporary license.