Matter of 157 Leonard St LLC v Capella 2024 NY Slip Op 34356(U)
December 13, 2024
Supreme Court, Kings County Docket Number: Index No. 510276/2024 Judge: Kerry J. Ward
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
FILED: KINGS COUNTY CLERK 12/13/2024 02:59 PM INDEX NO. 510276/2024 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 12/13/2024
Supreme Court of the State of New York Tndex Number: 510276/2024 Cminty ·of Kings Seq.001
PRES ENT:
HON. KERRY J. WARD,
A.J.S.C.
Part
. ___ H ___ . - '-----. . .-----. ·------- .------ . ---------------. --·. --- . X Tn the Matter of the Application of:
157LEONARD ST LLC,
Petitioner, DECISION/ORDER
Foran Order and Judgment pursuant to Section 881 of the Real Property Actions and P:roceedingsLaw for access to adjoining. property,
-against-
GEORGECAPELLA,JR. and TIFFANYIRIS CAPELLA_,
Re;~pondents.
- ·------------ ·---. ------------ . ·-----------. ---- .--- .---------·. ----·X
The following e-:filed documents, listed by NYSCEF document number, were read on motion sequence 001: l-14, 15-34, 38-56, 57-74, 75-103.
Upon the papers before the Court, and having heatd oralatgurnent, it is hereby ORDERED as follows:
Petitioner, 157 Leonard St. LLC, (hereinafter, "Petitioner;' or ''Project Premises''), with Project Premises located at 157 Leonm·d Street, Brooklyn, New York, 11206, Block No. 3032, Lot No. 18, has brought this Special Proceeding against.the Respottdel;l.tS, Ge:org¢·Capella, Jr., anq Tiffany Iris Cµpella, (herein;:i.fter, "Respondents;'), &eeking a Court-Ordered access license to 151 teortard Street; Brooklyn, New York, 11206, Block No. 3032, LotNo. 21, (hereinafte1\ the "Adjaceht Premises'') pursuant to Real PropertyActions and Pfoceedings L.aw ("RPAPL") § 8.81 for the following relief:
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FILED: KINGS COUNTY CLERK 12/13/2024 02:59 PM INDEX NO. 510276/2024 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 12/13/2024
(a) pe1form a preconstn1ction survey of the Adjacent Premises; (b) install, maintain and remove overhead protections over.certain portions oftheAdjacerttPrernises; (c) iitstall, maintain,andrembve roof protections over the roof at the A<ljacentPremises; and, ( d) install, mai11tain, utilize, and remove suspended and/or pipe scaffolding on the Adjacent Premises during the Project; all of which access is required by applicable lawartd shall be niaintained for approximately twenty-four(24) months; together with all such other and further relief as this Court deems just and proper. This access is requested in order to comply with vai"ious ptovisionsof the New York Building Code, including sections 3309.3, 3307:62, 3307.6.3, and 3J09; 10. The parties have consented to certain tei"ms, as detailed below, and Respondents filed opposition papers.
Procedural History
Petitioner is requesting access to 151 Leonard St, in order to excavate. and constrnct a new building on the Premises of 157 Leonard St., Block No. 3032, Lot No. 18. In Match 2024, Petitiorter cotnmenced demolition and consttuction on the Project Premises. No access order \vas yet in place, despite efforts to come to an agreement.
OnApril 1.,2024, Robert Lin ofA&TEngin:eering, P.C., an engineering firm retained by the Capellas, visited the Project Prernises and expressed concerns to Respondents about the ongoing construction (Affidavit R. Lin, NYSCEF Doc. 32).
On April 8, 2024.the New York CityDepm1inent of Environmental PI'otection ("DEP") issued to Petitioner an "Order to Stop Work" for asbestos:-related violations ofthe New York City Air PoJ!ution Control Code (Erhibit Ii; NYSCEF Doc. 23).
On April 9, 2024, Petitioner broughtthe instant action fotaccessto 151 Leonard St. pursuant to RPAPL § 881.
On or about June 7, 2024, Petitioner erected metal scaffolding which overhung Respondents'
driveway (Exhibit M, NYSCEF Doc. 28). No access agreement was ·yet in place between the parties. Later that same day, Respondents; counsel .sent aletterto Petitioner de1nandingthatPetitiorterretnove the.scaffolding that .loomed over the Capellas; property (Exhibit I, NYSCEF Doc. 24), On or a,bout .fti1Je 11, 2024, the New York City Department of Buildings ("DOB';) issued ll pa,r:tial Stop. Work Order upon Petitioner, noting two violations (Exhibits J; K & L, NYSCEF Docs .. 25, 26. & 27).
On July 1, 2024,. Petitioner. resumed de1rtqli tipn a:t 157. Leonard St.,. and debris from pieces of their building fell onto the Capella P1;emises I neighboring properties, atid the street (A[firtnation of Erik
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Ottrnann; NYSCEF Doc. 15). A Stop Work Order was again issued citing multiple violations (Exhibits N & o: NYSCEF Docs. 29 & 30). Ori that day; the DORalsbissued a partial vacate order aJfecting the Capella Premises because "due to demo work at the ProjectPre1nises, the Capella Premises is within the collapse zone" (Exhibit P, NYSCEF Doc. 31).
On August 1, 2024, Petitioner's excavator inadvertently backed into and demolished Respondents' cinderb lock retaining.wall Iocated on the prope1iy line between the Project Premises and the Adjacent Preri1 ises (Le tter!Cor1·eJp<>i1de nee to Judge,NY SCEF Doc. 35). The impact caused heavy debris and lm-ge pieces of cinderblock to fall onto Responcie11ts' driveway and on several parked vehicles.
Law
RPAPL § 881 provides in petiinentpart that,
"when an owner or lessee seeks to make improvements orrepairs to realproperty so situated that such improven1ents or repairs cannot be rnade by the owrieror lessee without. entering the premises ofan adjoining owner or his lessee; and permission so to enter has been refused, the owner or lessee seeking to make such improvements orrepairs may bbm1nence a special proceeding fot a license so to ertterpursuantto article four of the civil practice law and rules" (N.Y Real Prop. Acts, Law§ 881 [McKimmy]).
The lic:ense terms are ''addressed to the sound discretion of the court, which must apply a reasdriableness ·standard in balancing the potential hardship to the applicant if the petitionis 11ot granted against the inconvenience to the adjoining owner ifit is grm1ted,,, The factors which the court may consider in determining the petition include the nature and extent of the requested access, the duration of the access, the i1eeded protections for the adjoining property, the lack of an alternative means to perform the work, the public interest in the completion of the project, and the measures in place to ensure the financial con1pensatidn of the adjoining owner fot any damage or inco11veniertce resulting from the intrusion'' (Queens Theater Owne1; LLC v, WR Universa(, LLC. 192 A.D.3d 690, 139 N.YS.3d 844 [202 l]}. A license fee is warranted "where the granted license will entail substantial interference with the use and e11joyment of the neighboring prope1ty during the [license] period, thus decreasing the value of the property during that tirne1' (BG Sutphin Own~,; LLC v. Singh, No ..202 3.QQ4 l 5, 2024 WL48 91613, at * 1. [N. Y. App. Div. Nov. 27; 2024]).
Given that the Project Premises and tbe AdJEicent Premises abut 011e. another, such access is.
required and permissible; A license fee is appropriate pursuant to. RPAPL § 881.
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FILED: KINGS COUNTY CLERK 12/13/2024 02:59 PM INDEX NO. 510276/2024 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 12/13/2024
Itis hereby ORDERED on consent that Petitioner's Order to Show Cause is granted to the following extent Petitioner is granted a license to access the Adjacent Premises located at 151 Leonard St. for a period oftwenty-Jom (24) ni.Onths from the com:mencementof such access on the following terms and conditions:
I. Petitioner shall perform a ptecoflstruction survey of the Adjacent Premises; II. Petitioner shall install, maintain, and remove overhead protections over certain portions. ofthe Adjacent Preinises;
Ill. Petitioner shall install, mairitain, and remove roof protections over the r0Qf at the Adjacent Premises;
IV. Petitioner shall perform its cortsti'uction project in accordance with all applicable laws and regulations;
V. Petitioner shall follow and impleni.ent all applicable safety rules and regulations, including but not limited to OSHA requirements;
VI. Petitioner shall not have·.accessto·underpin the Adjacent Premises; VII. Petitioner shall take all· necessa1y steps to prevent water runoffi n and upon the Adjacent Ptetnises asteguired by applicable laws;
VIII. Petitioner shall providereasonable security measures, including surveillance and video monitoring of the Adjacent Premises, at its sole cost and expense. Both parties have consented to reasonable security measures, Respondents' additional request for live 24-hour video monitoring services of the Adjacent Premises is denied at this time;
IX. Petitioner shaII provide evidence, including certificates of insurance and policy agreements, of the following insurance coverages: Petitioner to name Respondents as additional insureds on Petitioner's or its general contractor's Cciri1inei'cial General Liability policy by a proper endorsement from its carrier a'.'. follows: {i) Insurance. Licensee ot its General Contractor/Constn.1ctfon Manager shall maintain at all times. during the term, ·Commercial General Liability insui·ance covedrtg claims·fot bodily.injury, personal injury, death~ 01; property damage with minimuni. coverage ofone.miPion dolhfrs ($1,000,000.QO) per occu,rrence and two million dollars ($2,00G,000.00) aggregate. coverage, {ii) Workers' Compensation ofone million do Ilats ($l1000,000;00) and in accordance with the applicable NYS law. (iii) Employers Liability Insurance with lirni ts as required by applicable law. (iv) Cl;.1mmercial Automobile Liability
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Insurance with lirnits of one million dollars {$1,000,000.00) each, accident covering over Ovv'ned, Hired, and Non-owned vehicles. (v) Umbrella or Excess Commercial General Liability with combinedsingle limit for bodily in,jury, personal i11jury, andproperty damage ofat least five million dollars ($5 ,000,000,00) or more ifreqllired by NYC DOB per occurrence and in the aggregate which aggregate amount may bereached by multiple policies. Suchinsurance policies shall be written with a company, or companies having an AM Best rating of at leastA-VIII and authorized to e11.gage in the business of insurance in New York State. Petitioner shall provide certificates ofinsurance to Respondents within five (5) business days of the Order;
X. Petitioner shall defend, indemnify, and hoU harmless Respondents against all third-party claims brought against Respondents arising out of the Petitioner's construction ptoject;
XI. Petitioner at its sole cost and expense shall cure any and all violations it may cause to be issued against the Adjacent Premises as a result of Petitioner's construction project within thitty (30) days of being notified of violation through Petitionet's counsel, and shall take all steps necessary to cause such violations to be discharged ai1d removed.
XII. To the extent pern:iissi bl e ·by the New Yotk Chy Depa11inent of Buildings and applicable law, Petitioner shall cause to be installed a plywood separation board ten ( 10) feet southerly of the property Ii ne bet\Veen the. property line shared by 151 Leonard St. and 15 7 Leonard St. oh top of the overhead protection system. In effect, Petitioner will divide the overhead protection on the Adjacent Propertyinto two sections. One section will be rendert:::d inaccessible and secured from entry by a board/fence rlinni ng from the stteet toward the back of the Adj a cent Ptcipeity: The remaining section will consist often (10) feet of workspace as rt1easured from Petitioner's proposed building to the board/fence. Petitioner shall take reasonable precautions to prevent workers from entering the portion of the overhead protections which are south of such separation board. Petitioner \viii create a single entryway which can be locked atthe end of each workday and for any period whe11 no \lo/Ork on the project is being conducted, and will take such other reasonable measures as may be necessijryto limit access to the overhe!ad protection or the Adjacent Premises by unauthorized persons. Petitioner's workers wi 11 only have access to the ten ( 10) feet of workspace spanning from Petitioner's proposed building to the board/fence. Everything beyond. that point shall be boarded~off and inaccessible to Petitioner's Workers. Access to this area .is restticted to the erection and dis111antling of the overhead structure .and qny tepa:irs.
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FILED: KINGS COUNTY CLERK 12/13/2024 02:59 PM INDEX NO. 510276/2024 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 12/13/2024
It is hereby ORDERED,
L Petitioner shall install, maintain; and remove crack monitoring on the Adjacent.Premises to monitor the retaining wall and existing structures on the Adjacent Premises;
IT. Petitioner shall install, maintain, utilize, and remove suspended and/or pipe scaffolding on the Adjacent Premises during the Ptoject. Pipe scaffolding, if needed, is in addition to the overhead pi"otecti011s as consented to by the parties;
III. Petitioner at its sole cost and expense shall make all repairs to theAdjacentPremises to repair any and all dari1ages caused byortesulting from: Petitioner's constrnction work by returning the property to the condition existing immediately prior to such injury or damage from the date of this license, including repairing any damage already caused by Petitioner or its V:.1orkets ·or contractors;
TV: Petitioner shall repair at its sole cost and expense the wall th<1t existed on the Adjacent Premises that Petitionei' destroyed on August 1, 2024 as per DOB-approved plans;
V. Petitioner shall petform any and all construction/demolition workas per DOB-approved project plans and in accordance with al 1 applicable laws, code provisions, regulations, and legal req uii·ernents, including but not limited to obtaining al I necessary .and p1'opei' permits.
VI. Petitioner shall hire a third-party NYC DOB-licensed Special/Progress inspector to inspect the work during. the construction arid provide signed. and• sealed inspection reports as re qui red by applicable laws;
Vil. Petitioners shall be allowed access to the Adjacent Premises in compliance with local laws and ordinances, and in compliance with New York City Administrative Coderegulationsi ·including but not limited to§ 24-222,which states.in.pertinent patt that it shall be unlawful to engage in or to cause or permit any person to engagein construction work other than on weekdays between the bouts of 7 a,m. and 6p.m.
VUL Petitioner shal I cause to be removed 'Vvithin fifteen ( 15) days after Resp0ndent provides notice of' any lien o!' encmnbrance issued or fi Ied against the Adjacent .Premises as a result of Petitioner's work on its project., or the license immediately terminates; ai1d IX. Petitioner shall pay Respondent li~ense fe~s of $3,200.00 per month. frqin the date of this Order going forward~ for the duration of Petitioner's access to the Adjacent Premises.
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FILED: KINGS COUNTY CLERK 12/13/2024 02:59 PM INDEX NO. 510276/2024 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 12/13/2024
_Attornev andProfessional Fees With regard to awarding attorney's fees; ''the deten11ination must be based upon a demonstration of the hours reasonably expended on the litigation and what is reasonable compen:.;ation for the attorney based upon the prevailing ratefor similar work in the community ... The determination ofa reasonable attorney's fee is left to the sound discreti011 ofthe trial court" (RMP Cap. Corp. v. Victory .Jet, LLC_, 139 A.D.3d 836, 839'-40, 32 N,Y.S.3d 231,236 [2016]). The analysis is the same for an award for ptofessional fees. It has been established that as an adjacent property owner "has not sought outthe intrusion and does not derive any benefit fromit. .. equity requires that the owner compelled to grant access should not have to bear any costs resulting froni the accesf' (269o.2 73 14th St N. Y Corp. v. Stein, 221 A.D.3d 807, 809, 199 N.Y.S.3d 662,664 [2023]). With access to the Adjacent Premises gtanted with a monthly license fee, fees for Respondents' counsel and for professional engineering services are apptopriate. This 1rtatter has· been contentious artd has been vigotously litigated by both parties. The ongoing issues have required significant legal and engineering expertise.
Thus, it is hereby ORDERED, that in consideration of the papers before the Court and the access granted here"in, Petitioner shall pay Respondents attorney's fees and engineering fees incurred by Respondentsinthe commencement of this special proceeding, and otherwise incurred as aresult of Petitioner's request for access, in the follov-.-ing aniounts:
(i} Attothey'sfees and costs in the amount of $83,476.00; and {ii} Engineering fees in the amount of$ 10,500.00.
Petitionet's tequest for attorney's fees and professional fees is hereby DENIED.
This Order is hereby effective immediately uponissuance.
This hereby constitutes-the Decision.and Otdet of the Court.
ENTER
fi:ON. KERRY J. w ARD, A.J.s;c,
t-lon. Kerry J. \Nardi AJ.S.C.
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