§ 881 — Access to adjoining property to make improvements or repairs

§ 881. Access to adjoining property to make improvements or repairs.\n1. As used in this section: (a) the term "document" shall include but\nnot be limited to copies of any plans, specifications, surveys,\nengineering reports or evidence of insurance for the work to be\nperformed on adjoining property;\n (b) the term "licensee" shall refer to the owner or lessee, as\napplicable, who seeks entry onto an adjoining property;\n (c) the term "adjoining owner" shall refer to the owner or its lessee\nof the property adjoining that of the licensee;\n (d) the term "refuse", "refusal", or "refused" shall be deemed to\ninclude instances where more than one written notice has been served, by\ncertified mail, on the owner and has not been responded to within sixty\ndays;\n (e) the term "state entity" shall refer to the metropolitan\ntransportation authority, or its affiliate or subsidiary agencies.\n 2. When a licensee seeks to make improvements or repairs to real\nproperty so situated that such improvements or repairs cannot be made by\nthe licensee in a commercially reasonable manner without entering the\npremises of an adjoining owner, other than a state entity, and\npermission so to enter has been refused, the licensee may commence a\nspecial proceeding for a license so to enter pursuant to article four of\nthe civil practice law and rules. The petition and affidavits, if any,\nshall state the facts making such entry necessary and the date or dates\non which entry is sought. Any adjoining owner named as a party in such\nproceeding shall, at the request of the licensee, provide such licensee\nwith such information as shall allow the licensee to identify the\nlessees of the adjoining owner and join them in the proceeding. Such\nlicense shall be granted by the court in an appropriate case and upon\nsuch other terms as justice requires. The licensee shall be liable to\nthe adjoining owner for actual damages occurring as a result of the\nentry.\n 3. The purposes for which a licensee may seek permission to enter an\nadjoining property pursuant to this section may include:\n (a) Preconstruction survey to document the existing conditions of the\nadjoining property;\n (b) The installation, maintenance, inspection, repair, replacement\nand/or removal of: (i) vibration, crack or optical monitoring devices on\nor within any existing improvements on the adjoining property; (ii)\nsheds, bridges, netting or other protective covering over the roof,\nfacades, windows, skylights, mechanical equipment, chimneys or other\nexterior portions of buildings or yards, walkways, driveways or other\nopen areas on the adjoining property; (iii) scaffolding on or over the\nadjoining property; (iv) sheeting, shoring, bracing or other retaining\nstructures needed for demolition, support or excavation; (v) where\nrequired by code, regulation or local law, any necessary foundation or\nbuilding supports, including, wall ties, tie-backs, anchors, straps and\nunderpinning, for any demolition, new or existing improvements on the\npremises of the licensee or adjoining owner, including, party walls; or\n(vi) flashing, sealing or other materials or equipment needed to\nestablish the weather-proof integrity of any wall, foundation or other\nexterior portion of a building on the adjoining property;\n (c) Temporary projections or intrusions into the airspace of the\nadjoining property as necessary to complete the proposed improvements or\nrepairs;\n (d) Temporary or at the licensee's sole option permanent relocation,\nextension or offsetting of any chimneys, vents, flues, exhausts or other\nrooftop equipment on the adjoining property, as required by applicable\nlaw;\n (e) Construction staging necessary to complete any work on the\nadjoining property; or\n (f) The undertaking of such other measures as may be required by\napplicable law or good construction practice.\n 4. The grant of any permission pursuant to this section shall be\nsubject to the following conditions:\n (a) The exercise of any right of entry to the adjoining property shall\nbe upon reasonable prior notice to the adjoining owner, as applicable\nand as the court may establish, except in cases of an emergency posing\nan immediate threat to the safety of persons or property;\n (b) The duration of the license based on a good faith projection of\nthe dates and estimated duration of any entry to the adjoining property.\nThe licensee shall thereafter make commercially reasonable efforts to\nadhere to such dates and durations and if unable to do so make a request\nto the court for an extension of such license;\n (c) Where permission includes a right to install, maintain, inspect,\nrepair, replace or remove any devices, structures, materials or\nequipment on the adjoining property, the grantee licensee shall provide\nto the adjoining owner, as applicable, copies of any relevant documents\nprior to commencement of such work;\n (d) The licensee and/or any contractor, consultant or agent thereof\nthat accesses the adjoining property pursuant to the license shall\nprocure and maintain commercial general liability insurance for damage\nto persons or property, naming the adjoining owner and/or its lessee(s),\nas applicable and made known to the licensee, as additional insureds, in\nsuch amounts as are commercially reasonable for the entry to the\nadjoining property. The licensee shall provide the adjoining owner and\nits lessees, as applicable, with relevant documents; and\n (e) The licensee shall be required to reasonably compensate the\nadjoining owner for the loss of use and enjoyment of the adjoining\npremises including diminution in value.\n 5. The court, in granting a license or otherwise resolving a\nproceeding brought pursuant to this section, shall be authorized to:\n (a) consider evidence that either party failed to comply with the\nterms of any existing or previously existing license respecting the same\nproperty;\n (b) obligate the licensee to reimburse the adjoining owner for\nreasonable fees incurred in connection with the review of relevant\ndocuments for the installation, maintenance, inspection, repair,\nreplacement or removal of devices, structures, materials or equipment on\nthe adjoining property; and\n (c) insure for damage to property and persons if there is unique,\nphysical occurrence causing physical damage to property or persons\ncaused by the access.\n 6. Notwithstanding subdivision five of this section, where the\nadjoining property to which the licensee seeks access is owned, leased\nor otherwise occupied by a state entity, the court shall not grant a\nlicense.\n