Broadway Enterprises, Inc. v. Lum

16 A.D.3d 413, 790 N.Y.S.2d 402, 2005 N.Y. App. Div. LEXIS 2293

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 2005
• Status: Published

Opinion

In a proceeding pursuant to RPAPL 881 to obtain a license to complete the underpinning of a foundation on the respondents’ property, the petitioner appeals from a judgment of the Supreme Court, Queens County (Grays, J.), dated October 14, 2003, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The petitioner and the respondents are the owners of adjoining properties. The petitioner obtained a permit from the New York City Department of Buildings to construct a three-family home on its property. The petitioner commenced this proceeding pursuant to RPAPL 881 to obtain a license to complete the underpinning of a foundation on the respondents’ premises. The Supreme Court denied the petition and dismissed the proceeding, finding, inter alia, that the underpinning constituted a permanent encroachment on the respondents’ property.

The Supreme Court properly denied the petition since the underpinning could constitute a permanent encroachment (see Foceri v Fazio, 61 Misc 2d 606 [1969]) and there are alternative methods of construction that the petitioner may utilize in constructing its property (see Sunrise Jewish Ctr. of Val. Stream v Lipko, 61 Misc 2d 673 [1969]).

The petitioner’s remaining contentions are without merit. Florio, J.P., Schmidt, Rivera and Lifson, JJ., concur.