Access Agreements and Insuring Easements April 4, 2016; 6:30 PM to 8:30 PM

ACCESS AGREEMENTS AND INSURING

Prepared in connection with a Continuing Legal Education course presented at New York County Lawyers’ Association, 14 Vesey Street, New York, NY scheduled for April 4, 2016

CLE

Program Co-sponsors: NYCLA's Construction Law Committee, Real Estate Section and Lex Terrae Ltd./Old Republic National Title Insurance Company

Program Chair: Ariel Weinstock, Katsky Korina LLP, Co-chair NYCLA's Construction Law Committee

Faculty: Jack Feirman, Old Republic/Lex Terrae; Bruce Lederman, D'Agostino, Levine, Landesman & Lederman, LLP; Ariel Weinstock, Katsky Korina LLP

NYCLA

This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 2 Transitional and Non-Transitional credit hours: 1 Professional Practice/Law Practice Management; 1Skills. This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 2 hours of total CLE credits. Of these, 0 qualify as hours of credit for ethics/professionalism, and 0 qualify as hours of credit toward certification in civil trial law, criminal law, workers compensation law and/or matrimonial law. ACCREDITED PROVIDER STATUS: NYCLA’s CLE Institute is currently certified as an Accredited Provider of continuing legal education in the States of New York and New Jersey.

Information Regarding CLE Credits and Certification Access Agreements and Insuring Easements April 4, 2016; 6:30 PM to 8:30 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Access Agreements and Insuring Easements

Monday, April 4, 2016

Program Co-sponsors: NYCLA's Construction Law Committee, Real Estate Section and Lex Terrae Ltd./Old Republic National Title Insurance Company

Program Chair: Ariel Weinstock, Katsky Korins LLP, Co-chair NYCLA's Construction Law Committee

Faculty: Jack Feirman, Old Republic/Lex Terrae; Bruce Lederman, D'Agostino, Levine, Landesman & Lederman, LLP; Ariel Weinstock, Katsky Korins LLP

AGENDA

6:00 PM – 6:30 PM Registration

6:30 PM – 6:35 PM Introduction and Announcements

6:35 PM – 7:25 PM Access Agreements

7:25 PM – 7:40 PM Break

7:40 PM – 8:00 PM Easements and Insuring Easements

LICENSE, INDEMNITY AND PROTECTION EASEMENT AGREEMENT (Developer Friendly)

License, Indemnity and Protection Easement Agreement (this “Agreement”), dated as of ______, by and between ______, having an address at c/o ______, (“Licensor”) and ______, having an address at c/o ______New York (“Licensee”). W I T N E S S E T H WHEREAS, Licensee is in the process of developing and performing various improvements (the “Work”) to the property located at ______and Licensor is the owner of the adjoining property located at ______(the “Adjoining Property”); and

WHEREAS, Licensee desires to obtain a license and easement for Licensee and its consultants and contractors (collectively, the “Licensee Parties”) to enter and have access to the Adjoining Property for the purposes of performing certain portions of the Work on and from the Adjoining Property and providing for the protection of the Adjoining Property against damage caused by such Work (the “Protective Work” and together with the portions of the Work to be performed on or from the Adjoining Property, the “Access Work”); and

WHEREAS, Licensor is willing to grant such license and easement subject to the terms, provisions and conditions hereinafter set forth.

NOW THEREFORE, upon the premises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: 1. Subject to and in accordance with the terms and conditions of this License Agreement, Licensor hereby grants to Licensee and the Licensee Parties, and Licensee hereby accepts from Licensor, a license and easement to enter upon the portions of the Adjoining Property (the “License Areas”), necessary for use by Licensee and the Licensee Parties for the purposes of performing the Access Work and/or complying with any requirement(s) of law imposed upon the Licensee Parties, including any requirements imposed by the New York City Department of Buildings. The term of the licenses and easement granted herein (the “License Period”) shall be for the term ending when a permanent certificate of occupancy is issued for the Development Site and for a reasonable period of time thereafter to enable Licensee and the Licensee Parties to complete any repairs to the Adjoining Property as required hereunder and to vacate the License Areas. 2. Licensee and the Licensee Parties shall take commercially reasonable measures to prevent any material damage to the Adjoining Property. 3. Licensee agrees to indemnify and save harmless Licensor and Licensor’s partners, officers, directors, contractors, agents, members and employees (the “Licensor Parties”) from and against any and all liability (statutory or otherwise), claims, suits, demands, actual damages (excluding consequential and punitive damages), judgments, costs, fines, penalties, interest and expense (including, without limitation, reasonable attorneys’ fees and disbursements) to which the Licensor Parties may be subject to or suffer arising from, or in connection with the Licensee Parties’ use and occupancy of the License Areas and, to the extent caused by Licensee Parties, any violation of any and all laws, orders, rules and regulations of all state, federal, municipal and local governments, departments, commissions and boards.

457424-1-W

4. All damage or injury to the License Areas, caused by or resulting from the negligent acts or omissions of Licensee or the Licensee Parties shall be repaired promptly by Licensee at its sole cost and expense, to the condition existing immediately prior to such injury or damage. 5. Licensee shall provide evidence of the Licensee Parties’ comprehensive general liability insurance with limits of no less than $______per occurrence, $______annual aggregate, with an umbrella policy of no less than $______, which insurance shall be written with financially responsible carriers and naming each of ______and ______as an additional insured. 6. Licensor covenants and agrees that, except for the onset of a physical condition that renders the Adjoining Property dangerously unsafe, it will not apply for any stop work order or oppose Licensee’s applications before any governmental agency or board, including, without limitation the Landmarks Preservation Commission. Except in the event of emergency conditions, prior to applying for a stop work order, Licensor shall give Licensee at least five (5) business days’ notice and opportunity to cure the condition. If Licensee commences and thereafter takes commercially reasonable measures to cure such condition and diligently proceeds with such curative measures to completion, Licensor shall permit such cure to continue and not apply for a stop work order unless such condition has a material negative impact on the Adjoining Property or occupants of the Adjoining Property that is not being substantially mitigated by Licensee’s curative efforts. 7. Miscellaneous Provisions. (a) This Agreement constitutes the entire understanding between the parties regarding the subject matter hereof and shall bind the parties hereto and their respective successors, assigns or other legal representatives. This Agreement supersedes any prior verbal understanding or written agreement between the parties relative to the subject matter hereof, and may not be amended, supplemented or discharged except by an instrument in writing signed by both parties.

(b) Nothing contained in this Agreement shall be construed to create an agency, partnership or joint venture arrangement between the parties. The parties' relationship shall at all times be and remain licensor-licensee.

(c) This Agreement shall be governed by and construed under and in accordance with the laws of the State of New York, without regard to its conflicts of law provisions. LICENSOR AND LICENSEE HEREBY VOLUNTARILY, KNOWINGLY AND IRREVOCABLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION BROUGHT UNDER THIS AGREEMENT. In the event that either party shall commence an action to enforce its rights hereunder or to clarify said rights, the party substantially prevailing shall be entitled to recover the costs of such action from the other party, including, without limitation, reasonable legal fees.

(d) This Agreement may be executed in two or more counterparts, each of which, when taken together, shall constitute one and the same instrument. Electronically transmitted signatures shall be deemed binding and effective.

LICENSOR: LICENSEE:

______, ______,

By:______By:______Name: Name: Title: Title:

457424-1-W - 2 -

LICENSE, INDEMNITY AND PROTECTION EASEMENT AGREEMENT (Developer Friendly)

WHEREAS, Licensor is willing to grant such license and easement subject to the terms, provisions and conditions hereinafter set forth.

457424-1-W

LICENSOR: LICENSEE:

______, ______,

By:______By:______Name: Name: Title: Title:

457424-1-W - 2 -

FILED: NEW YORK COUNTY CLERK 02/25/2014 INDEX NO. 654425/2013 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 02/25/2014

APTER 33 - 2014CC _BC_ Chapter _33 _Safeguards _During_ Construct10n_or _uemo.por

l Demonstration that me request meets or e:xceeds the level system> and system:S mstalkd .m accordance with this

6. \\'here au ahemittive system is propos~ a mm.:imw:n level manufactw:er of the alternative system.

1303:.9 l'nencios~ {lffrimeter protection .inspection, nse, adjustment, maintenance, and repair. Safety net systems, guardrail syste:>ru, and al:temati:ve systems authorized under Sectioo :BOS .. S shall be u~ adjusted, :o:Wntained, repaired, and '"'F""'-''"' in accordaru:e with the dra:wings, mru:i.ukturer and the requirements of tl:tl$ code. 3308.9.l Sak c()ndirion. n.et systems, system$, md alternative ll)tstem:S authorized oo

33()8.9.2 Proc:autions. Pt'ecamions sba:li be taken to :prevent 4et systems, guardrail systems, and alteroati:n~ systems authorized under Sectioo J308Js from being damaged ,....,,,.15'""• abrasion, sand, rrn;t, tvelding, cutting operations, chemicals, and airoorne \vhere such systems are by such.

gu.:u...,;a:u systems, and ab:emative s~ authorized under Section 330&.8 shall be m:o.pec;ea for with this code required as well as after each impact looding eYent, installatrou, remstallatton, adjustment, mamtem.nce, or repair of soch .. or

3303.9.4 Remo1rmg fr

3308.9.5 Repair. Repairs to safety net systems, guardrail systems, and a!temarive systems authorized under Section J308.S shall be maccordance with the specifications of the manumcturet of such and shall :provide the orig;inal manufacturer factor of !!afety' or where none emsts, shall be n1 accordance with specmu.oons developed by the registered design professional re>•P1YUS1•0.1e for the of the £ttmg systems in accordance with Section 3308.H.

E:i:c*Ptmn: Sn:ocwal nets and debris nets shall not be ""''"""'"...__ SECTION BC 3300 PROTECTION OF ADJOINING PROPERTY :nOO.l Protection requind. Adjoinmg public and private property, including persons thereon, sha:l1 be protected from damage and construction or demolition work in accoroauce with. the requirements of this sectioo. Protection must be pro¥ided for rocion,i;s. foundailons, part}" wa:lis, chimneys, skylights and roof£. Provisions sha:l1 be made to control water ruu--0ff and erosion dming construction or demolition activities.

3309.l.l Notification. \V'here a coost:mction or demofuron :project will r~uire access ro adjoining :property in accordance 1vith this written notification shall be provided ro the a~iommg property owner at least 60 calendar days prior to the commencement of \York, Such notification shall describe the nature of work, estimated schedule and muation, derails of msiDec•ti.01:is or monitoring ro be perfonned on the atljoining :propert:_y, :protection to be installed on the adjoining :property, an.d contact information for the project. \Vhere no respome is recei:n:d, a seco!l;d written notificatioo sba:l1 be made no more than 45 calendar days, and not less than 30 c~ prior to the comm.em:ernent ofwork. 33fi'9.2 Lice:me to enter adjoining property. The responsibility of afford.mg my lic:ense to enter adjoining property shall rest upon the owner of the adjoining property and in case any tenant of such t:J<>vner fails oc refuses to permit the owner to afford such such failure or refusal 3hail be a ca.use foc the 0\\'11€!' to dispossess such temmt through appropriate legal proceedings

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"""'"''''""'"'"' possession of real property. Nothing m this shall be construed m prohibit the owner of the property urnierrxi11!1'. cPmtruction or demolition work from for a Pf'C<:ei~ctn:ig pursuant to Section 881 of the R«il Property rro•c<1N2am:~s Law.

3309.3 Physical uammation. \\then ~ion to enter upon adjoining pniperty has been obmined, a physical ~a:ti-0n of;;n.1ch property shall be conducted the person the c;:;;nstruction or demolition operations prior to the commencement of the oµi;£:11u:o11:1 mi.cl at reasonable during the progress of the worlt:. Observed conditioiu shall be recorded by the person me con.~miction or demolition and such records shall be made available tc the depa:rtment upon request

3300. .4 Soi! Qr fQtmdatiou work affeding adjomm1 poop~rty. Whe:nevet soil or foundation work occurs, regardless of the depth of such,. the persoo who caus.es rucl~ to be made shall. at all times the course of such work and at his or her O\Yn expense, pre:1.en:e and protect from any strm:wres, hut .not limited to fuotings and foundations, provided such person is afforded a license ill accordance with the of Section 3309.2: tc enter and inspect the adjoining bu:iktmgs and J:l't<>perty, and to perform such work thereon as may be necessary for such purpose. If the person >vho causes the soil or foundation wodc is not afforded a license, ;ruch duty to preserve and protect the adjacent property sh.all devolve to the owner of such adjoining property, who shall be. afforded a similar l:iceme with respect to \vhere the soil or foundation work is to be made 3309.4.l Additional safegu.ank dmillg n:eavaoon. The following addition.al requirements shall apply during exca1tation:

The person the excavation shall s~port the vertical and lateral ioad of the adjoining structure by proper touiXUl

3' \\'here the consmiction or demolition will r~-ult in a dect'ease in the frost protection for m foundation belmv the min.ii:nwns established in Section Hl053J, the existing fow

Buildings that are within a distance from the exca;;ation.

2. Historic sttucrures that are cootigi:row to or within a lateral ;:fu,tmce of 90 feet 432 mm) from the edge of the iotwhere an exca\11.tlon is occwring.

p:t"ovided:

2 \\nere the exc.avatioo occurs within five feet (1514 mm) oo- less from a footing or foundation, such excavation does not ocrn1· beiow the level of the footing or fou.w:iation, 3309.4.5 Potential ba:nrd. When, in the opinion of the a potential hazard exists as a result of soil or foundation work, elevatiom of me adjacent buildings shall be res.:orded o:r other monitoring prix:edures ;;hall be implemented by a registered professional at inter:als of 24 hours oo- less as determined commissioner to ascertain if movement has occurred. 33fi95 ruderpmning. \\'hene..-er um:!erpmrung is required ro preserve mi.cl protes.:t an adjacent property from construction, demolition, or e:xcava.tion wo:rk, the pencm who causes such wotl: at his or her own expense, underpin the adjacent building '"'"''"''i'"" such person is afforded a license in accordance :vith the requirements of Ses.:tion 3309.2 tti enter and inspect the adj ommg i..eu•·'"""'"" and property, and to perlomi such ·wod:: th.ereoo as may be necessary for such purpose, If the person :vho cau.ses the

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or excavation work .is not afforded a soch duty to """''""'"""'"' and protect tile adjacent property shall cietolve to tile 01vner of tile adjoining property, who shall be afforded a s:i.ruilar with respect to the property where the co:nstn1ctioo, dem©htron, or excavation is to be pertbnnett

3300.6 Subsurface operatiom aff'ect:Wg adjacMt prope~. \\lhenev·er subsmface operatioos, other than excavation or fill, are conducted tl:mt may loads or .m©vemettts oo adjoining: property, tndruiing but not l.imited to the driving of piles, compaction of wils. ot soil the effects of such operations on property and structures shall be monitored in accordance \Y.tth Section .H09J6

3309.6.l Change in ground water level \Vltere 01<11cetnei:it of a fowuiation will cauae changes in tile water level under u1W•WMP, !:he effects of such \'.In !:he and settlement of the adjacent foundations shall be investigated and shall be made to prevent to soch ou1ldl!1gs. 3309.. 6.2 Potential hazard. \Vhen, in the opinion of tile commissiooer, a pote:mial hazard exists as a .result of subswface elcn'ltions: of the shall !:le recorded by a registered design professional at intervals cf 24 001J.t"$ or less as cktennined !:he commissioner to ascen:ain ifmovement has occurred. 331J9.7 Retaining st:rnmtres.. \v'hen: the regulatioo of a lot the gromtd on such lot to be raised or lowered and kept higher th.m tile '""'f the provided the t:Jf such lot is not maiutamed at a kmrer than in conformity with !:he street or !>treets on which it ;s situated; or where m excavation l:l.as been made or a fill placed oo any lot roeet:ing the curb le\'el and the adjoining land is maiutamed at a in confoi:mrty with or lower than tile streets or streets on which it B situated; and is ·without p~t str1X1mes other than sheds or similar s~, a retairting structure shall be constructed for the safe support of adjoining ground, unless tile bank bet\Veeu tile adjoining properties is maintained at a safe retam!Xlg tvall shall. be built and the ov.'tiers oo each unleJ>.s l'.lther\vise

3309.7.l Surplm retaining structures. \Vhere my ow·ner maintains his or her either higher or lower l:han the """""'"""' pres;,c:nt}ea in the Aa'mirtistrative Code, tl;e s.urpim atrocmre that may be :necessar)i' to support soch height or for such exca·nnion shall be n:mde at tile S-Ole expense of such o\V!let', and any additional thickness that may be required shall be built on tile imd of such o\vner. 3300. '7.2 Removal of retaiamg strm::mrs. Any retaining .strucmre erected as above, stimding partly on the land of each O\Yner, mav be temoYed either owner when the reason for the erection of such retainU1g strucmre ceases ro exist 3309.S Adjoin.mg walls. \Vhen any construction or: tiemolition operation exposes or breaches an adjoining wall, .in.duding load and walls as well as party t"l.<\Us and non pru1y the persoo the construction er demolition ,,,.,,.,."""'" shalL at his or her O'l.vn expense, perform. the :following:

l. \fain.rain the structural integrity of such walls and adjoining structure, and have a registered design professional investigate !:he md corn:litioo of tl;e wall and adjoiuix1g strm:mre, aad take all necessar)i' steps to protect such wall and structure.

} Cut off dose to tile walls all beams in part)! walls, :remcn:e stub ends without weakening existing masonry, dean beru:n ofloo:>e roo11a:r, bend oYer all wall imchors at the beam ends in the standing wall, and brick-up all open beam holes with 5-0mld brick ru1d cement mortar.

'*·· demolitioo operations, >vhere the floor beams of the adjacent building beat on tl;e party \Vall, tile person cam.mg the denrolition mall l!Scertain !hat such beams are anclwred into the tvaU and, where such anchO!age is lacking, shall provide an£:hora~re or otherwise brace the standing ;val! 5. all noo!.oad-bearing chinmey projections and any other debris exposed on party '.:Valls shall be examined and monitored by ·the person the demolition. Removal of such items shall be mack tmder the of a design professional only if the stability of the .adjacent building or structure will not be affected. op;::n111gs shall be bricked op tlush on tl;e exterior side of the party wall. All masonry that is in poor coodition shall be pointed md patched.

33M.9 \\'eatherproof integrity of adjoining build:ings. \\"here !:he waterproof integrity of an adjoining wall or building has been tnlJJ&lJrea due to construction or demoi:irioo the person causing the construction or demolition operations shall, at his or her own expense, provide all necessary measures to pe:mmnently •vaterproofthe adjoining wall, or hilllding morder to establish or res.tore the of soch adjoining ;vall, or This shall ind:ude, but is not limited to:

nenn1m~ o;er and flaming all

and pe:rnJ.;anttntll'l'l':at<:~rp:IXXlt1ng all doors or other

walls and i:ni.rapets and any walls that have been disturbed; lath, and plaster oo party and an•:lltlfttlg my loose wall material

33f}9J{l Protection of rwfs. '1.\'henever any is to be constructed or d¢molished above the roof of an adjoining it shail be the ruch \YOB to protect from at all times during the course of such work and at his or he.r own expense the ether and located on the roof of the building, and to use every reasonable means to axoid mterference 1.vith the use of the building the course of such wo.rk, provided such person such work is a:frbrded a license in rv::cordance with the cf Section 33092 to enter and ttD>pe:ct the aa1omm2 uuuu1m2 and such work thereon as may be necessary for such purpose; the duty of protecting the roof, skylights, and on the roof ofme shall d1n:ol:ve u:i:xm the 01v11e:r of sud1 adjoming ou1iro1;ug.

'..H09.H Proteetii.m of trtts. No trees outside the property line 1xithin me sha.U ~disturbed ·or ren10;-ed without of the cmnmissioner of the departinent of and recreation. Protection the requiremetlB of the and recreation shall be for a11 .such trees, and written notification shall also be made to the department and recreation at least 48 hours prior to commencemmt of such work

3309. H.l Deleteri@ns, canstic, or acid materials, No 11 .. 1.. r1•n''"~ feet (3048 mm) of ally tree within the pnblic nx>r shall salt for the rem.::m'.11 of ice or ,;".!low ~ applied \vhen runoff wiU drain to a tree \vithin the public r12m--ot-·\V

Ar;1phcat1on of matenrus as necessary to preYent and wtm111a hazards mareas accessible to the pubhc durmg periods \Vhere freezing conditions ru:e to be en.collltered.

3309.12 Protectfiln of dumneys. per$0:11 having the dm:y to alter or maintain of my adjoining buildmg imder and pursuant to the ofthil; the .Vew York Mtu:lwnical Code, the N;;rv: York City Fuel Gas Code, or other applicable lmn and rules shall~ afforded a license in accon:imce wim the of Section 33092 to enter and such t:rn:uGin£ and perform such vrnrl!: thereon as may be necessary for purpose; othenvise, such duty shall devoh·e upon me owner of

3309.B Protection of adjommg equipment and spaces. \\'henever a major l:milditig is constructed or demolished, and provided ·-~-~"'"'··~ a site pluch and spaces the coill:>e of such coostn:Jction or demolition \Vork, provided such person ccrusing such work is affurded a license in accordance with fue ·~~''"'"<'.,., of Section 3309 .1 to enter and :inspect the adj-Oming property and perform such ·wo.rk thereon as may be necessary for mch purpcse; othenvis:e, the duty of protecting such adjoinmg equipment and spaces shall devolve upon the owner of such adjoming proper~·

I s:ception: Equipment on an adjommg :roof shall oo protected in accordance with Section 3309. 10 33G9.14 Protection of windows. 'l.'1.nenever exterior construction or dem.oi:irion \Vork occurs, and such work :results in an imenclosed "'""~"'"'""'- it shall be th.e of the pexson such work to protect from damage, at all tilnes during the course of such wo.rk a:nd at his or her ov;11 expense, all windo

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3309,2 m enter and impect the adJoining property and perform such work thereon as may be necessary for such purpose; otherwise, the the windows mall devolve wpon me owner of1>uch at:!joining building,

f.irceprions: \\'indow wo,tec1tion is oot foc.

l , \fulor a1terat11::ms and ot'llmalt~;

3 \\bere all ooendo,-,ed are the.t meetl> the requirements -0f Sectioo. or an ""''"''"''"'"'- alternate system. that extends to cover the full and width of me ooeocfosed perimeter; or a supported scaffold covef'!l the full width o.f the unenclosed the scaffold in decked and :flush against me oui1an:tQ at such le\:d whe:n:e the ooeud~d perimeter >vith no gap bet\•,;eeu the wcaffold and the building greater than 3 i:m::hes m.-n), and also that the scatlbld is with and guardrails in accordance with Section 331~.lt

3309.15 '.\fodilkatious and alternate weth-Ods. The commissioner may, based upon a \v.ritteu request frooi a "'""'""'"""'" the requirements for at:!joining property protection by this inducling the installation or use of such modi.fu:ation or dtemative method meets or exceeds the level of surveying, monitoring, m'\'Dft'no:n or protection, as applicable, afforded ro the public and property by thin section, and alsq pr0cvided the insurance ciutren1ents of Sections HH and 105 of Title 28 of the Aamims:tnztive Coda are satisfied

3300.15.l RequHt amto:t. A request submitted ooder Secricm 330~U.5 s:hall ioc1ucle: 1. Details of the n:i.odifu:atiou or alternative methods to be utilized;

3.. Demonstratioo. that the· request meets or exceeds the le\·e1 of sur-ve'i!lll!l' r.mmitoring, inspection, or protectio!'JG as "'¥P''-''-"·"""' affi:in:ied to the and property this

6. Wbere such request is made because an a

SECHON BC 3lU~ REQt."lRE.:\!E:.""ITS FOR THE COl'ISTRUCTION OR DEMOLITIO.~ OF :MAJORBCILDINGS 3JHU Scope. This section s:hall appiy to: 1. The co.ustructioo of a new major buildmg; The ;:ertical or horizontal enlargement ofa major buil.dmg;

3. The full or partial demolition of a major· building~

-4. The 01· repair of a of a btLlldtng, pm;-ided the building is more thm 14 stories or 21)0 teet (60 960 mm) in height and also pmvided the workrequrres a sidewalk shed to be installed; and 5, construction or demolition work, indudmg the alteration, maintatance, or repa;ir of a fru;ade, in a l:mildu1g so designated. the comn:iissioner.

Exception: The requirements of this. section s:hall oot apply to partial demolition operatioos llmited to the :interior components of a major building provided no mechanical demolitioo. equipment, other than handheld devices, are used ..

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33HU.l Applicability of other laws. '.liom.rru~ contained herein shall dim.inish or supersede any other applicahle sta1e, or foderal "t>(mh'l'hcw1

3.310.2 \b.jor buiidillgs. See the definition buil&ing' in Sectio:n 3302.

33HU Site safety plan. No of work mted in Section 3310.1 until a site plan that meets the ret~trn'e:t1<:tl:ts ofArtide 110 rni~·wativ& Code has been. approved by the department.

33HU Site safely mmtitoring program. For a contractor $hall ex:iact and maintain a s.1te progrru:u to implement sm::h site m. .B 10 .5 tbtough .B HH 0.

£nepriou: to the app:ro;-al of the commissioner, a site accordance wim Sectlon 3310 U . .3310.5 Site safety manager or coordmator to be designated. One or more site mi.ma.gen shall be designated, as necessary, to a1sure with the site and all site as in th.is Such site satety l'.lN'lnager or managers shall be the owner, agent,. construction matJ.ager, or contractor. All such entities shall agree to de;;,af!;tltate one '>och tite site manager, or \:rhere there is only cm.e site manager., such rruurnger shall be designated as the prii'rutty site man.ager.. Such site :>afety i::rumager(i!) shall be certified by me macconiance with Article 402 4 ofTitle 21$ ofilie A.a'ministratita Cod6, Lxce1::1t1•1>n:: One or more aite coordinators, certi.ftJ.!d by the department in accordance with the requiren1ents of Article 403 of 4 of Title 28 of the Adrninistrative may be in lieu of a site safety manager for the comtruction, "I ·ettical or horizontal ellimgemeut, or full or partial demolition of a major 1:mililing,. prmtided such bui.kiing: ls less tha11 15 stories or 200 feet (60 96(1 mm) in and

lH0.5.l :'\oti.ficarion to the department of:the primary manager or coordinator. The department shall be notified of the ;;1re manager or coord.inator prior to the comm.en.cement of work. In the enmt th.at an alternate site safety manager or coordinator will be as the site safety manager or coordinator for a period longer than two coosecuti•-e weeks, the must be "° ootilled. permanent cl:limge of me si.te !'.lll'Ulager or coordinator requires immediate notification to the depa:rt:ment

3310.5.2 P~filH?nc~ .at the site. For the comtmctioo or alrerarion. of a l:milding, the primal'.)· site ~ manager ar coordinator s.hall be present at the site all times ivhl1e active work is and through all phases of \Votk, \Yith excavation ll!l.d until the :i$ eud.osed and the s,idewalk shed remoYed.

brnOOtru;i:, the site ma~:~ei· or coordinator shall be present at the site during all times while active work is occ:unmg and through aU phases be;gwnttig with the rem.oval of any a.Sbestos, or ft'Yade and, for a full until the site has been badcfilled to Of for a partial demolition until the building is enclosed and the sidewalk shed removed.

Eu~tions: 1. ,.,.,.,,,,.,,.,,..., site manager of coordinator is not to be present at th.e site during th.e following "'"'" ""'""" provided no other work is in progress. >C'>run:e,vHm that does n.-0t ID':olve the dlstml:nmce of material, strw:ture, or e.arth; C se of a hoist to transport p~el 1. 3 C s.e ofa material hoist th.at is fully a1dosed tvithin the perimeter of the buildmg; 1. 4 Finish trowelling of concrete 1. 5 \\Then persow:iel are provided for tempo:rary heat light or •.v ati:f;. 16 Truck deliveries ID the site where the sidewalk is dosed and me entrance gate is wi:tl::tin that dosed side·walk area.. to the approYal of the commissioner, the requirement for a site safety manager, o:r where a site coordinator is arthorized by this code, a site may he waived entirely, or reduced to a part time basis v.:itb: such pan time basis determined the in accordance with Section 3 3 HJ 11.

3310.5.J Acting primary site safety man.ager or coordmator. \vnere the primary site safety manager or coordinator is unable to be at the an alternate site manager or coo:rcl.i:n.ato1· shall act as the site safety manager or coordinator. Such shall be recorded i:n the site as required by Section and where requin~d by Section 3310.5.1 notification shall be to the department..

,://wwwl .nyc.gov/assets/buildings/apps/pdf_viewer/viewer.html?file=2014CC _BC_ Chapter _33 _Safeguards_... 3/30/2

Buildings

3309.1 Protection required. Adjoining public and private property, Revision to clarify that section is intended to prevent damage to adjoining including persons thereon, shall be protected from damage and injury property and injury to persons thereon. during construction or demolition work in accordance with the requirements of this section. Protection must be provided for footings, foundations, party walls, chimneys, skylights and roofs. Provisions shall be made to control water run-off and erosion during construction or demolition activities. 33.09.1.l Notiffoatiori. Where a construction 6.rdefnolitioh project New section in the 2014Code to require written nbtification be provided wi!L: regufre. access to adiOining property· in accordance with·. this to adjoining property owners if access.to their property will be required section, Written notification .shall be provided to the adjoining to provide protection requfred by Section 3309. property owiier at least 60 calendar days.priof'to the commencemeht of work. Such notification shali . describe the nature of. work, Note: The: scope of this notification is limited to protection• required by estimated schedule and duration. details ofil:lspections ormonitoring thi.s section. ·If access to adjoining property is required for any other to be perforn'led onthe adjoining property, protection to.be installed re<1?on,for (i1Xample,to provide additional protection not required by this oh the adjoinilig proberty,.and tohtact information for the project. sectl\:>n, to perform repairs, etc, the notification requirements of this .·.Where no. response is received, a second written notification shall be section do not apply.

made no more than 45 calendar days, and not less than 30 calend~r days. prior to the commencement of work. 3309.2 License to enter adjoining property. The responsibility of Revision to cross reference relevant section of state law. The referenced affording any license to enter adjoining property shall rest upon the law allows a developer to petition the state court to order an adjoining owner of the adjoining property involved; and in case any tenant of such property owner allow the developer access to the adjoining property. owner fails or refuses to permit the owner to afford such license, such failure or refusal shall be a cause for the owner to dispossess such tenant through appropriate legal proceedings for recovering possession of real property. Nothing in this chapter shall be construed to prohibit the owner of the property undertaking construction or demolition work from petitioning for a special proceeding pursuant to Section 881 of the Real

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.]

LEGAL DISCLAIMER: The information in this document is a summary and overview and is not intended to substitute for any law, rule or regulation. The information contained in this document is current only as of September 30, 2014.

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Propertv Actions and Proceedings Law. 3309.3 Physical examination. Wheh permission to enter upon adjoining I No changes made in the 2014 Code. property has been obtained, a physical examination of such property shall be conducted by ·the person causing the construction or demolition operatiohs prior to the commencement ofthe operations and at

. reasonable periods during the progress of the work. O~sefvedconditions shall be recorded by the person causing the construction or demolition·

operations, and such r:Ei~ordsshall be made available to the departrpent upofi request. 3309.4 [Excavation or filling operations] Soil or foundation work Revisions to the first paragraph reflect terminology utilized in the 2014 affecting adjoining property. [Regardless of the excavation or fill depth,] Code. The term "soil or foundation work" is now a defined term in Whenever soil or foundation work occurs, regardless of the depth of Chapter 33 and is a term utilized throughout the chapter. such, the person who causes [an excavation or fill] such to be made shall, at all times during the course of such work and at his or her own expense, I The second paragraph has been relocated to Section 3309.4.3 of the 2014 preserve and protect from damage any adjoining structures, including but Code; no changes made to the text. not limited to footings and foundations, provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the [excavation or fill] soil or foundation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of such adjoining property, who shall be afforded a similar license with respect to the property where the [excavation] soil or foundation work is to be made. [No excavation work to a depth of 5 to 10 feet {1524mm to 3048mm) within 10 feet {3048 mm) of an adjacent building, or an excavation over 10 feet (3048 mm) anywhere on the site shall commence until the person causing an excavation to be made has documented the existing conditions of all adjacent buildings in a preconstruction survey.]

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.]

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3309.4.1 Additional safeguards during excavation. The following I Revision to clarify that lateral loads must also betaken into account. additional requirements shall apply during excavation: . L The person causing the excavation shall support the vertical Term "new" deleted; the provisions of this section apply to all construction, not just new bui Iding construction. and lateral •.load of the adjoining structure by proper foundations; µnderpil1ning, cir other equivalent means where the level of the .foundations ofthe. adjoining structure is at or CrossJeterence updated to reflect the renumbering cif the section in the , • • • • • - • • •• , c above the levelofthe bottom ofthe new excavi::ltipn. 2014 Code~ 2. Where the existing adjdinlJ1g structure is below the level of

lh'e [h~w]c.onstructionor dem91itioh, provision shallbe made to support arw.increased vertical or lateral load on the existing adjoinlhg structure caused by the [ne\/Vlconstruction

or demolition. ·. ..•. . · • : · .•.· · · ..•... 3; Where the ;[new] construction or demolition will result in a decrease in>foe frost protectidn for an exi$ting foundation

... below the minimllms .established in Sectib~[18052.l]

• 1805.3.1, t~eexisting fo\.i@i;l,ation

3309.4.2 Support of party walls. Where a party wall will be affected No changes made in the 2014 Code. by excavation, regardless of the depth, the person who causes the excavation to be made shall preserve such party wall at his or her own expense so that it shall be, and shall remain, in a safe condition. Where an adjoining party wall is intended to be used by the person causing an excavation to be made, and such party wall is in good condition and sufficient for the uses of the existing and proposed buildings, it shall be the duty of such person to protect such party wall and support it by proper foundations, so that it shall be and remain practically as safe as it was before the excavation was commenced.

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.)

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•·3309.4.3 Preconstructionsurvey. No·exca~at~on.workto.a depth 6Js IThe second parag.raph of Section 3309.4 of the 2008 Code relocated to feet to 10 .feet (1524 mm to 3048 mm).w1thm 10 feet (3048 mm) of here. No changes made to the text. an adjacent building. or an · excavation over·l(} feet (3048 mm)

anywhe_re on the site shall commence until t~e_pe,rson~~usingan l Please note, the provisi·o·~s of this s~ction.. apply .·..~nl.y to.;'excavation" excavation to be made has documented the ..ex1sting cond1t1ons of all work and not the larger universe of"so1I and foundation work." adiacent buildings in a oreconstrudion survev: · · · 3309.4.4 Monitoring. During the course of excavation work the I New section in the 2014 Code. following shall be monitored in accordance with Section 3309.16: Item number 1 is based on Section 3309.6 of the 2008 Code, under which .1. Buildings that are within a distance from the edge of the Ithe department requires monitoring of excavations. Item number 1 in excavation that is equal to or less than the maximum depth the 2014 Code spells this out more clearly. of the excavation. Item number 2 codifies the monitoring trigger of TIPN 10/88. 2. Historic structures that are contiguous to or within a lateral distance of 90 feet (27 432 mm) from the edge of the lot I The exemptions contained in Section 3309.4.4 of the 2014 Code mirror where an excavation is occurring. the exemptions provided throughout Section 3304 for shallow excavations. Exception: Monitoring is not required for excavations to a depth of five feet (1523 mm) or less, provided:

.1. The excavation occurs more than 5 feet (1524 mm) from all footings and foundations; or

2. Where the excavation occurs within five feet (1524 mm) or less from a footing or foundation, such excavation does not occur below the level of the footing or foundation.

3309;4S Potential hazard •. Wherk in the ooinion of th~I New Section in the 2014 Code; mirrors requirements currently found in

*Underlined text is new text added to the 2014 edition of Chapter 33. (Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.]

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commissioner, a potential hazard: exists as a result of soil or foundation work. ;elevations of . the adjacent buildings shall be

recorded or other ~bhitoringprocedures shall be implemented by a

occurred. 3309.5 Underpinning. Whenever underpinning is required to preserve I Revision to clarify that the requirements of this section apply to and protect an adjacent property from construction, demolition, or demolition work. excavation work, the person who causes [the construction or excavation] such work shall, at his or her own expense, underpin the adjacent building provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the construction. demolition, or excavation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of the adjoining property, who shall be afforded a similar license with respect to the property where the construction, demolition, or excavation is to be [made] performed.

3309~6~~[Foulldati~I)). Subsurlace-- operatiO:ns affecting ~~cijacent.The section is .revised fo clarify. it applies to subsurfac~operations, but

. properties; \Nhenevef sl,ljJsurface opef<1ti9ns, other than ek~avationornot,ex~.avations,fill, or underpinning .. Excavation and fill i.s covered by •

fil1are conducted that' may.impose lo'alis or moverhents on adjoinJqg Sectiodi3~09.4.4 and 3309.4.5 of the 2014 Code. Underpinning is

property, [such a~]including but not fimlted to the drh1ing of pile~,covered by Section 1814.

.compaction of soUs, 8,r soil solidiflcatfon, the effects of such operations ···

'!;m adjoining prqperty an~structures sha'll. be· mc.mit6rer;l in ·accordance

,With Section 330~.16. · · ·· ·

'Exce9tion1 l\llonitOring during underpinning· shall be ih ~ctordance with Section1814.

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.]

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3309.6.1 Change in ground water level. Where placement of a I Revision to provide a section number and title for the paragraph. foundation will cause changes in the ground water level under adjacent buildings, the effects of such changes on the stability and settlement of the adjacent foundations shall be investigated and provision shall be made to prevent damage to such buildings.

3309.6.2 . t>otent~azard.When,~ifl the .. opinion ()f the Revi~iqJlto provide a Section n~-mberand title f()r the paragraph, .. Also a cotrimiSsioner, a. potential hazard exists as a resu•tt of subsurface revisiohJto clarify the text applies to "subsurface operations.". For operations; elevations of the adjacent buildings shall:berecorc:led or hazards associated with "soil or founda:tion work," please see the related other mOhitoring procedures: shall be in;iplemented by'a registered Section3309AS. . . .

design professidnal at. intervals of 24 hours or leS$as i:let~rrninedby the commissioner to ascertain if movement has occur,red.

3309.7 Retaining structures. When the regulation of a lot requires the I No changes made in the 2014 Code. ground on such lot to be raised or lowered and kept higher than the ground of the adjoining lot, provided the ground of such adjoining lot is not maintained at a grade lower than in conformity with the street or streets on which it is situated; or where an excavation has been made or a fill placed on any lot meeting the curb level requirements; and the adjoining land is maintained at a grade in conformity with or lower than the streets or streets on which it is situated; and is without permanent structures other than frame sheds or similar structures, a retaining structure shall be constructed for the safe support of adjoining ground, unless the bank between the adjoining properties is maintained at a safe angle of repose. Any necessary retaining wall shall be built and maintained jointly by the owners on each side, unless otherwise agreed to by both owners.

330~.1 .1 ·surplus- retaining.stru(:tures; where--gny owfler waintains f Nochanges madei!'.lthe-2oi4. code: · his or her ground either higher o.rloi,,ver than :t:beJegal regulation

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.) LEGAL DISCLAIMER: The information in this document is a summary and overview and is not intended to substitute for any law, rule or regulation. The information contained in this document is current only as of September 30, 2014.

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prescribed ih the Administrative Code, the surplus retainihg structure· that may be heCessary to support such height or provide for such excavation shall be made atthE! sole expense of such owner, and any additional thickness that may be required shall be built on the land .of such owner. 3309.7.2 Removal of retaining structures. Any retaining structure I No changes made in the 2014 Code. erected as provided above, standing partly on the land of each owner, may be removed by either owner when the original reason for the erection of such retaining structure ceases to exist.

3309;8 Adjoinin·g·w. ·a··.'.' ..s·... · w..·. hen···a·-·n.yco····nsj.rM·t:·tion or·dernolitlon operation. IRe.visio·n.s ..m .. ade in item numberl to clar:ifythat the structural integrity of exposes or breache:s an adjoining wa.11, including load bearing and adjoiningwall and structure must be maintained.

nonloa~·bearlngwalls as well as party walls and non party walls, the · · · person causing the construction or demolition operation sball, at his or

her own expense1 p~rformthefollowing:·.

1. Maihtain the structural integrity of structure,, and have a. registered oesigl1 professional investigate the stability and condition of the wall and adioining structure; and take all necessary steps to protect such wall and structure:

2. Maintain. ~ffrequired• fire ••exits and passageways . substihit:fons meeting the requirements of this code. . .

3. C~toff close. to.the walls aH beams in party walls, rE!nldvestub endswi.thocit weake!1fn{exisfil1g masonry, clean beam pockets of loose mortar, bend over allwall anchors at the beam enps in.the

standing wall1 and brick-up all opeh beam holes with soi.ind brick and cement rnortar,

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.] LEGAL DISCLAIMER: The information in this document is a summary and overview and is not intended to substitute for any law, rule or regulation. The information contained in this document is current only as of September 30, 2014.

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During demolition operations, where the floor beams of the adjacent building bear on the party wall, the person causing the demolition shall (3stertain that such beams are ahchored)ntothe wal.1 and, where su.ch anc.h. orage is lacking, shall provide ' .. ' '' anchora15eor otherwise brace the ste1nding wall. 5. During . demolition operations, all nonloaci-bearing chimney breasts, projections.e1nd any other debris exposed onparty walls

shall be examined and monitored by the persoh C:a~$ingth.e demolition. Removal of such items shall be made under .the superv@on Of a registered design professional only if the stability of the

party waU. All masonry that is in poor condition sh~llb~pointed . ~~~fuh~. . . ..

3309.9 Weatherproof integrity of adjoining buildings. Where the Revision made to clarify that this section also requires establishing waterproof integrity of an adjoining wall or building has been impaired weatherproofing of adjoining structures; this accounts for situations due to construction or demolition operations, the person causing the where, for example, a party wall is left exposed to the elements. construction or demolition operations shall, at his or her own expense, provide all necessary measures to permanently waterproof the adjoining wall or building in order to establish or restore the weatherproof integrity of such adjoining wall or building. This shall include, but is not limited to: 1. Bending over and flashing all roofing material of adjoining buildings; 2. Sealing and permanently waterproofing all doors or other openings in party walls; 3. Properly sealing all cornices, where cut; 4. Pointing up and making waterproof any walls and parapets and

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.]

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any walls that have been disturbed; 5. Removing all exposed furring, lath, and plaster on party walls; and 6. Removing, replacing, and firmly anchoring any loose wall material.

33{[~.10-Protecti01fo(roofs[/skyllghts, chhnneys, etcJ. Whenever any Revisions made to the first paragraph to Clarify the provJsions of the huiloing is ..to be constructed· o.r demolisheq above the roof of an . : sectiO:nalso apply to "equipment on the roof.'' Terminology also revised

~adjoiHiqgbuildirig, it sh~ll. be')he duty of the .person c~usihg\suthfttclatif\fproteCtlon froirl damageis required at all time during the course tfo;dldingto be cbnstructed.or derrt.()lished]w.prk to protectfr9m damage ·of the work. · · · ·

ataUtimes·during the courJ~ofJuchwork~Ad at his.or her own expense > > .·.. • . · thiroof, skyfightsL(ahd] other ro6f dUtlets, and equiQf)'lent located on The Secpnd paragraph of Section 3309.10 of the 2008 Code has been ; the rBof of the adjoinlrig buiic:;ljng[from darriage], ahdto use every . ;relocatedto beco.me Section 3309.12 of the 2014Code and revised. teas.onable m.ean5Jo avoid,)ntetference With the·.use of· the adjoinipg .:

buiiB.ingduringthe coµrse p~:[constl'Uctionor demoliti.on. Such] such A rl:ewsecond paragraph of Section 3309.10 of the 2008.Code has been ·work> brovided such person [shaU be] causing such Work;.is afforqed a· 'cidded to the 2014 Code. The first sentence provides a mandatethat all license fo a,ccordaticewitb the requirements ofSetti.on 3309.2to enter rbof protection be secured to prevent dislodgement by wind.. The

and;inspect the adjoifoY;lgbull~ing and perform such work thereo.h a.s may ren?~inderof the panlgraph provides technical details for the type of

be rtec~ssaryfor SIJch·Pl;l~pos~; ·otherwise, the duty of ptbteding the protection to be required when work occurs at a height of at least 48 •roof, skylightsL[anci'Lotherr6of outlets, and equipmerit on the roof of the ihches above the level of the adjoining roof. These technical c;letails,and adjpihjng building shaHdevolve upbh the owner bf such adjoining the :ZOfoot protection distance, are based onbest practice. When work

buil(fit'lg. < ········...... ·. occurs ata lower height1 the general provisions of the first paragraph to

...... · · ,: . · ' . . . < · . ·•.••... protect ate required, bUt no specifics - aside frpm the provision to >[In addition, any pers8n having the duty fo• alter o.r maintairl . prdtectfrom dislodgement by wind- are mandated bythe code. cfiiri"ineysof any adjoiriirig building under and pursuanttothe provisions ;;of this tode or tile New York ·city Mechaf)ical Code or other .?PPlica!)le Mease note, alternative protection for work that b.ccurs at a. height. of at·. la,ws:arid r!lles, shall likewise be afforde.d a license iti accordan.ce with the< least 48 inchElsabove the level ofthe adjoining. roof can be allowed under req(Jlrements; of Section .3309.:f to enter and inspect such adjbining the provisions of Section 3309.1!). · building and perform such l!Vork'.thereori as may be necessary for such ··

piif:pose; Otherwise, sUch duty shall devoht~upon the owner.of such

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.]

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. . Adjoining roof protection shall be secured toprevent dislodgement by wind. Where construction or demolltion work occurs at a height of.at .least 48 inches fi219 mm) above the level of the adjoining roof; adjoining rooi:protectioh shall consist of 2inches{51 mm) of flarrle-retardahtfoam under 2 inches (51 mm) of flame-retardant wood plank laid tight and

covered byi.flame-retardant Plywood, ·or ~hallconsist· of equivalent protection ai::cegtable to the c

distance of at'iea~ti20feet(508 mmffrbtnthe edge ofthe buildil1g being cbnsttuctedor demolished......

3309.11 Protection of trees. No trees outside the property line within the I Revision made to clarify that the entirety of a tree must be protected in public right-of-way shall be disturbed or removed without the permission accordance with Parks Department requirements, not just the trunk. of the commissioner of the department of parks and recreation. Protection meeting the requirements of the department of parks and recreation shall be provided [around the trunks of] for all such trees, and written notification shall also be made to the department of parks and recreation at least 48 hours prior to commencement of such work.

3309.11.'.t Deleterious, caustic/ ot acid materials> No 'deleterious, RevJsiQn'.+to provide a section. number and. title for. the paragraph . . >caustic, or add nfaterials shall be dLii'pPE!dor mixed within 10 feet Clarificatidn made that the section applies only to trees within the ''public

< (3048 rnm)of any [su~h]tref.'!.wi~hin tl{e public right-of-way; nor shall right'."of-way.'; New exc:eptions added for certain concrete operations, as . salt for the removal of ice or show·pe applied When rµn()ff will drain wefl as for de-icing material. .

to atree within the public right-of~wav.· · · ·· ·

E~eeptions:-

l. Mixing, • delivery. or placement of concrete . from a

. concrete rnixer dr concrete truck. ..

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.]

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2. Application of de~icingmaterials a,s necessary to prevent slipping and tripping hazards in areas accessible to the public during periods where freezing conditions are to be encountered. · 3309.12 Protection of chimneys. Any person having the duty to alter or Section 3309.10 of the 2008 Code has been relocated to here. The list of maintain chimneys of any adjoining building under and pursuant to the other applicable laws has been expanded to include the New York City provisions of this code, the New York City Mechanical Code, the New York Fuel Gas Code. Citv Fuel Gas Code, or other applicable laws and rules shall be afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect such adjoining building and perform such work thereon as may be necessary for such purpose: otherwise. such duty shall devolve upon the owner of such adjoining building.

·33~M3~~ec!fuTof adfbining equip~ent and SJ)ac~s. Whenever al New ~e~~~i.onint.·~e 2014 Code; codifies best_pra.ct. ic.E!~~ re~uireprotection ma1or b.u1ldmg 1s constructed or demolished, and provided such work ofadJommg equipment and areas, and provides spec1f1ctnggers.

requires a site safety plan in accordance With Section 3310, it ~hallbe the . dut\/'of the person causing such work to protect from damage, at all first, dprotection required by this section is predicated upon the times during the course of such work and at his or her own expense; all constru(:tlOn or demolition of a major building that requires a site safety mechanical. electrical. and simHar equipment on the adjoining.property plan: If the. structure is not a major building, or if a site safety plan is not that .are within 20 feet (508 mml from an unenclosed perimeter of the required, protection .of adjoining equipment and spaces is not required .

. majb(building, and to.protect all publicallv accessibl~sbaces or\ the F:C)rexample; this exempts certain fa{l9de work that does n()t require a

• ifdioining property that are within 20 feet (508 mm) from anonenclosed site safety plan, aswell as any work associated with a no11~majorbuilding. perimeter.ofthe major building, and also to use every reasonable means . ..: ...... to aVQi.dinterference with the use of such equiptnerit and spaces during Secondly, protectioh is required for "mechanical, electrical, and similar the course of such construction or demolition work. provided such eqyipment on the adjoining property" and ''publically accessible spaces gerson causing such work is afforded a. license in accordance with the on the adjoining property" that are within 20 feet "from an unenclosed •requirements of Section 3309.2 to enter and · ihspect the adjoining· perimeter of the major building." The 20 foot distance mirrors the 20 orobertv and oerform·such work thereon .as mav be neces$arv for such foot distance in Section 3309.10;

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purpose; otherwise, the duty ofprotecting such adjoining equipment and spaces shall devolve upon the owner of such adjoining propertv. Please note, the trigger is not based on distance from the property line, or even the building line, but rather from the unenclosed perimeter. Exceptloh: Equipment on an adjoining roof shall be protected in Equipment or spaces that are sufficiently distant - because of setbacks, accordance with Section 3309.10. yi:irds, streets, sidewalks, etc - do not require protection. Further, if the unenclosedperimeter is only on one side of the structure, protection is no1:required on any other side. In addition, the trigger is based upon there: being an "unenclosed perimeter." This means that even if the building •is a major building that •requires a site·. safety plan, if.· the

perimeter (fa~ade)remains enclos~d throughout the duration of the project, therequirements of this sectiol1 would not.be triggered;

Further, tile requirement is for all "mechanical, electrical, and sin'lilar · eql)ipment'1 that falls Within the 20ft distance. Even if the surr'Ounding spacl is closed to the public, protection is still required forAhe equipment. Spaces (as opposed to equipment) that fa.II within. the 20ft distance only have to be protected if they remain open to the public The · public includes both pedestrians as well as occupants of the adjoining building. · · · · · ··

. Please note, this section does not rnandatethe type .of protection to be ihs1:alled. One acceptable means couldbe to install sldewillk sheds over the equipment or areas to be protected, Other acceptable means. could 1 be fo extend horizontal nets to coverthe 2Qft distance, or to providefull height vertical netting, a diapered scaffold, or cocoon system to fully

secure the unenclosed perimeter. As the type of protection requi~edto be installed is hofmandated, the provisions of Section 3309.15 are not applicable.

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3309.14 Protection of windows. Whenever exterior construction or New section in the 2014 Code. Requires windows within 20 feet of an demolition work occurs, and such work results in an unenclosed unenclosed perimeter, and which face such unenclosed perimeter, to be perimeter, it shall be the duty of the person causing such work to protect protected. Please note, the trigger is not based on distance from the from damage, at all times during the course of such work and at his or property line, or even the building line, but rather from the unenclosed her own expense, all windows on adjoining private property that face perimeter. Windows that are sufficiently distant - because of setbacks, such work and are 20 feet (508 mm) or less from an unenclosed yards, streets, sidewalks, etc - do not require protection. Further, if the perimeter, provided such person causing such work is afforded a license unenclosed perimeter is only on one side of the structure, protection is in accordance with the requirements of Section 3309.2 to enter and not required on any other side. In addition, the trigger is based upon inspect the adjoining property and perform such work thereon as may be there being an "unenclosed perimeter." This means if the perimeter necessary for such purpose: otherwise, the duty of protecting the (fai;:ade) remains enclosed throughout the duration of the project, the adjoining windows shall devolve upon the owner of such adjoining requirements of this section would not be triggered. building. Further, windows that are within the 20ft distance, but do not face the Where the window provides required means of lighting, ventilation, unenclosed perimeter, do not require protection. For example, in a court or egress, such protection shall not be allowed to interfere with such yard, if only one face of the perimeter (fai;:ade) is unenclosed, any required means. windows that are perpendicular to the unenclosed perimeter do not Exceptions: Window protection is not required for: require protection.

.1. Minor alterations and ordinary repairs. Please note, this section does not mandate the type of protection to be installed, although exception 3 does clarify that full height vertical netting

£,_ Work performed on a 1-, 2- or 3-family detached house or or a diapered scaffold is acceptable and if followed would not require any accessory use to such. further protection for the windows.

.1. Where all unenclosed perimeters are protected by vertical As the type of protection required to be installed is not mandated, the netting that meets the requirements of Section 3308.5, or an provisions of Section 3309.15 are not applicable. approved alternate system, that extends to cover the full height and width of the unenclosed perimeter: or a supported scaffold covers the full width of the unenclosed perimeter, provided the scaffold is decked and flush against

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the building at such level where the unenclosed perimeter exists. with no gap between the scaffold and the building greater than 3 inches (76 mm). and also provided that the scaffold is provided with netting and guardrails in accordance with Section 3314.8. 3309.15 Modifications and ai1:ernate methods. The commissioner mav; New section in the 2014 Code. Provides a means to request modified or based upon a Written request from a registered design prC>tessional, alternate methods to meet the requirements of Section 3309. Please · rnodify the requirements for adjoining property protection required by note, this section applies to situations where specific technical safeguards 'this section, including the installation or use of alternative methods; are mandated. If a provision in Section 3309 specifies a general provided such modification. or alterriativemethod meets orexceeds the requirement to safeguard, but does not provide technical, Section level of surveying, monitoring, inspection. or protection. as applicable, 3309.15 of the 2014 Code is not applicable as there are no specifics to afforded to the public and property by this section. and also .provided the modify. insurance requirements of Sections 103 and 105 of Title 28 of the AdminlsttCltive Code are satisfied.

3309.15.1 Request content. A request submitted under Section New section in the 2014 Code. Details the content to be provided in the 3309.15 shall include: request .

.1. Details of the modification or alternative methods to be utilized;

2. Any stipulations;

3. Demonstration that the request meets or exceeds the level of surveying, monitoring, inspection, or protection, as applicable, afforded to the public and property by this section;

4. Where applicable, a description of the practical difficulty of

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.]

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T iJ.l!. 11181Will''~ complying with code requirements;

~ Where applicable, a reference to the site safety monitoring program; and

6. Where such request is made because an adjoining property owner has not afforded a license in accordance with the requirements of Section 3309.2, the request shall contain a notarized letter from the owner of the property where the project is to commence, or a duly authorized representative, certifying notification has been made to seek a license in accordance with the requirements of Section 3309.1.1.

3309.16 Monitoring plan.Where 111onitoring is required by Section 3309, New Section in the 2014 Code. Clarifies that monitoring required by

s'uch monitoring shall be in accordance with a monitoring plan developed Section ~309must be in accordance with a plan developed by a by a registered design professional and acceptable to the commissioner. registered design professional, with the plan acceptable to. the The monitoring plan shall be

when tolerances are exceeded~

3310.1 Scope. [This section outlines the requirements for site safety The first sentence of Section 3310.1 of the 2008 Code is revised to programs for major building construction or demolition that are in provide a clearer scope in the 2014 Code. The numbered list reflects the addition to the other applicable requirements of this chapter. These current provisions of the 2008 Code. requirements are not intended to supersede other applicable city, state or federal requirements that address site safety and construction or The requirements of Section 3310.2 of the 2008 Code were incorporated demolition activity.] This section shall apply to: into a definition of "Major Building" in the 2014 Code. Accordingly, the

*Underlined text is new text added to the 2014 edition of Chapter 33. [Text in brackets is text in the 2008 edition that is being deleted in the 2014 edition of Chapter 33.)

p;! .l <;nf,, 11\,.p c ~f,. b •,JdU .,,<...A<~MLf,,.., :)'d-f:i Version2-09.30.14 Page216of 355 Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481 (2012) 964 N.E.2d 391, 941 N.Y.S.2d 20, 2012 N.Y. Slip Op. 01096

[2] defendants were strictly liable for damage to adjoining KeyCite Yellow Flag - Negative Treatment building caused by their excavation work. Distinguished by Bishop v. Greystone Properties LLC, N.Y.Sup., September 15, 2014

Reversed.

! West Headnotes (4) " #$%& '(%)*+ ! !,! -./!0 [1] Negligence ! (( ! Violations of statutes and other regulations " As a rule, violation of a State statute that imposes #$ 1' /!2 a specific duty constitutes negligence per se, or ! ! %! ! may even create absolute liability; by contrast, violation of a municipal ordinance constitutes #$ 1' /!2 3-/ 4 1 /!/ only evidence of negligence. " '!4!/. )!. 3-/ 4 1%! !4 2 Cases that cite this headnote ! ! 3-/ 4 1%! !

56 #7# [2] Negligence Violations of statutes and other regulations Synopsis Certain sections of the New York City Background: Landlord and its commercial tenant sued Administrative Code have their origin in adjacent property owner and developer, its parent, and State law and, as such, they might be excavator, seeking damages for excavation work that entitled to statutory treatment in tort cases; allegedly undermined building's foundation and caused thus, in analyzing whether a violation of an building to lean by approximately nine inches, resulting Administrative Code section should be viewed in vacate order issued by Department of Buildings. The as negligence per se or some evidence of Supreme Court, New York County, Carol R. Edmead, J., negligence, Court of Appeals considers the denied tenant summary judgment, and the Supreme Court, origin of the provision. New York County, Charles E. Ramos, J., granted landlord summary judgment, and denied motion filed by adjacent 4 Cases that cite this headnote property owner and parent seeking leave to amend answer. Tenant, adjacent property owner, and parent appealed. In [3] Adjoining Landowners consolidated appeals, the Supreme Court, Appellate Division, Degree of care required and acts 76 A.D.3d 225, 904 N.Y.S.2d 392, affirmed in part and constituting negligence reversed in part. Plaintiffs were granted leave to appeal. Former New York City Administrative Code provision requiring persons performing excavation work more than 10 feet below curb Holdings: The Court of Appeals, Ciparick, J., held that: level to protect adjoining structures from harm imposed absolute liability on defendants whose [1] former New York City Administrative Code provision excavation work caused damage to adjoining requiring persons performing excavation work more than property. New York City Administrative Code, 10 feet below curb level to protect adjoining structures § 27–1031(b)(1) (2007). from harm imposed absolute liability on defendants whose excavation work caused damage to adjoining property, and 9 Cases that cite this headnote

**392 On this appeal, we consider whether former [4] Adjoining Landowners Administrative Code of the City of **393 ***22 Degree of care required and acts New York § 27–1031(b)(1) imposes absolute liability on constituting negligence defendants whose excavation work caused damage to Negligence adjoining property. We hold that it does, and that plaintiffs Contractors are entitled to summary judgment. Property owner/developer and its excavation contractor that violated New York City Plaintiff Randall Co. (Randall) is the owner of a landmark Administrative Code provision requiring persons cast iron and masonry building located at 287 Broadway in performing excavation work more than 10 feet *487 Manhattan. Plaintiff Yenem Corp. (Yenem) was a below curb level to protect adjoining structures commercial tenant operating a pizzeria in the building. In from harm were strictly liable for damage to 2006, defendant The John Buck Company (JBC) through adjoining building caused by their excavation its subsidiary, defendant 281 Broadway Holdings LLC (281 work; excavation, which was carried to a depth Broadway Holdings), purchased the lot adjacent to the south of 18 feet, undermined the foundation of the and west sides of 287 Broadway and began developing an adjoining building and caused it to lean by L-shaped commercial and condominium complex. JBC and approximately nine inches, resulting in vacate 281 Broadway Holdings hired defendant Hunter–Atlantic, order issued by Department of Buildings. New Inc. (Hunter–Atlantic) to excavate the site. The excavation York City Administrative Code, § 27–1031(b) occurred at a depth of 18 feet below curb level. As (1) (2007). the excavation progressed, 287 Broadway shifted out of plumb, tilting out of verticality. On November 28, 2007, 11 Cases that cite this headnote the Department of Buildings (DOB) found that the building leaned to the south by approximately nine inches. The following day, DOB issued a vacate order deeming the building unsafe for occupancy. As a result, Yenem was forced Attorneys and Law Firms to close its business, and Randall's building remains vacant.

***21 Jaroslawicz & Jaros LLC, New York City (David Yenem commenced an action against JBC, 281 Broadway Jaroslawicz and David Tolchin of counsel), for Yenem Corp., Holdings and Hunter–Atlantic claiming that defendants were appellant. negligent and strictly liable under Administrative Code of the City of New York § 27–1031(b)(1) for causing Weg and Myers, P.C., New York City (Dennis T. D' Antonio, damage to 287 Broadway, resulting in the loss of Yenem's Joshua L. Mallin, William H. Parash and Jonathan C. Corbett business. Randall commenced a separate action against JBC of counsel), for Randall Co. LLC, appellant. and 281 Broadway Holdings 1 asserting similar claims. Shafer Glazer, LLP, New York City (David A. Glazer and Hunter–Atlantic cross-claimed against its codefendants and Mika M. Mooney of counsel), for respondents. asserted third-party claims against various subcontractors and engineering companies. Molod Spitz & DeSantis, P.C., New York City (Marcy Sonneborn and Alice Spitz of counsel), for third-party Randall moved for partial summary judgment against JBC respondent. and 281 Broadway Holdings seeking lost rent and other damages, and Yenem moved for summary judgment against Michael A. Cardozo, Corporation Counsel, New York City all defendants. JBC and 281 Broadway Holdings opposed (Margaret G. King and Spencer Fisher of counsel), for City plaintiffs' motions and cross-moved for summary judgment of New York, amicus curiae. against Hunter–Atlantic. In support of their respective summary judgment motions, plaintiffs submitted, among other things, a letter and affidavit of managing agents of 281 *486 OPINION OF THE COURT Broadway Holdings and a report by defendants' structural engineers, all of which stated that 287 Broadway shifted CIPARICK, J. increasingly out of plumb during the course of defendants'

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 2 Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481 (2012) 964 N.E.2d 391, 941 N.Y.S.2d 20, 2012 N.Y. Slip Op. 01096 excavation work despite defendants' various remedial efforts. that defendants violated the code provision; that the building's Specifically, one of defendants' engineers stated that “[t]he prior condition was irrelevant to the issue of proximate cause; movement of the building during excavation was caused by and that, as a strict liability provision, section 27–1031(b) settlement due to undermining of the existing footings and a (1) did not permit an affirmative defense of reasonable loss of soil under the footing.” precautions (see id. at 242–245, 904 N.Y.S.2d 392).

*488 In the Yenem action, Supreme Court denied Yenem's *489 The Appellate Division granted plaintiffs leave to motion for summary judgment with leave to renew at the close appeal, certifying the following question to us: “Was the of discovery. The court found that violation of Administrative corrected decision and order of this Court, which affirmed Code of the City of New York § 27–1031(b)(1) did not result the order of the Supreme Court entered September 18, 2008, in strict liability but constituted some evidence of negligence. and reversed an order of said Court entered January 29, 2009, The court also found potential factual issues regarding the properly made?” We now reverse and answer the certified proximate cause of the building's movement. In the Randall question in the negative. action, however, a different Supreme Court justice granted Randall's motion for partial summary judgment and denied [1] [2] “As a rule, violation of a State statute that imposes defendants' cross motion in its entirety. The court held that a specific duty constitutes negligence per se, or may even defendants **394 ***23 were strictly liable under section create absolute liability. By contrast, violation of a municipal 27–1031(b) (1). ordinance constitutes only evidence of negligence” (Elliott, 95 N.Y.2d at 734, 724 N.Y.S.2d 397, 747 N.E.2d 760 In consolidated appeals, a divided Appellate Division upheld [citations omitted] ). We have “however, acknowledge[d] that the order denying plaintiffs motion for summary judgment certain sections of the Administrative Code have their origin in the Yenem action and reversed the order granting plaintiff in State law and, as such, they might be entitled to statutory summary judgment in the Randall action (see Yenem Corp. v. treatment in tort cases” (id. at 736, 724 N.Y.S.2d 397, 281 Broadway Holdings, 76 A.D.3d 225, 231, 904 N.Y.S.2d 747 N.E.2d 760 [citation omitted] ). Thus, “[i]n analyzing 392 [1st Dept.2010] ). The court rejected plaintiffs' argument whether a violation of [an] Administrative Code section that because section 27–1031(b)(1) was originally enacted as should be viewed as negligence per se or as some evidence of a state law imposing absolute liability, it should continue to be negligence, we consider the origin of [the] provision” (id. at so construed (see id. at 228–229, 904 N.Y.S.2d 392). Citing 733, 724 N.Y.S.2d 397, 747 N.E.2d 760). Elliott v. City of New York, 95 N.Y.2d 730, 724 N.Y.S.2d 397, 747 N.E.2d 760 (2001), the Appellate Division found that as [3] Former Administrative Code of the City of New York § a municipal ordinance, the code provision was an “unsuitable 27–1031(b)(1) 2 provides: candidate for elevation to the status of a state statute imposing per se negligence or absolute liability” (Yenem Corp., 76 A.D.3d at 230, 904 N.Y.S.2d 392). The court further held ***24 **395 “When an excavation is carried to a depth that plaintiffs failed to demonstrate that “defendants' actions more than ten feet below the legally established curb level were the proximate cause of the damage to the building or that the person who causes such excavation to be made shall, the precautions taken by defendants in connection with the at all times and at his or her own expense, preserve and excavation were inadequate” (id. at 231, 904 N.Y.S.2d 392). protect from injury any adjoining structures, the safety of which may be affected by such part of the excavation as Two justices dissented on the ground that section 27–1031(b) exceeds ten feet below the legally established curb level (1), having its origins in state law, imposes strict liability provided such person is afforded a license to enter and where a plaintiff demonstrates that a violation of the provision inspect the adjoining buildings and property.” proximately caused injuries to the plaintiff's property (see id. The provision originated from an 1855 special law (see at 233, 904 N.Y.S.2d 392). The dissent opined that Elliott N.Y. Const., art. IX, § 3[d][4] ) that created a duty to expressly recognized that a local law with state law origins protect neighboring landowners in “the city and county of could invoke statutory treatment and, providing a thorough New–York” and the “city of Brooklyn” from harm arising review of the provision's legislative history, concluded that from excavation work where none had existed at common section 27–1031(b)(1) fit that rule “to the proverbial tee” (id. law (L. 1855, ch. 6, § 1). In effect, the statute, as enacted, at 237, 904 N.Y.S.2d 392). The dissent further concluded shifted the burden of protecting against harm from the

remained constant over the years. To hold that a violation of landowner to the excavator. In *490 Dorrity v. Rapp, 72 N.Y. 307 (1878), we characterized the statute as imposing the provision is only “evidence of negligence” would thus absolute liability, stating: defeat the legislation's basic goal. Though formerly a state law and now a local ordinance, section 27–1031(b)(1) continues “[t]he primary object of the statute[ ] was to cast upon the to embody the specific legislative policy that in New York party making an excavation on his land, exceeding ten City those who undertake excavation work, rather than those feet in depth, the risk of injury resulting therefrom to the whose interest in neighboring land is harmed by it, should wall of an adjoining owner, and the burden of protecting bear its costs. 4 it. The liability imposed is not made to depend upon the degree of care exercised by the person making the [4] Finally, we agree with the dissent below that plaintiffs excavation. When the facts bring the case within the are entitled to summary judgment. Defendants' affidavits statute, the duty and liability which the statute imposes and the report of defendants' engineers expressly state that is absolute and unqualified ” (id. at 311 [emphasis the excavation, carried to a depth exceeding the regulatory added] ). threshold, undermined the foundation of 287 Broadway and caused it to lean southward. The majority below erred in The original statute was subsequently reenacted under the finding that the building's allegedly poor condition raised Consolidation Act of 1882 (see L. 1882, ch. 410, § 474). In an issue of fact as to causation; though certainly relevant 1899, the law was recodified as a municipal ordinance in to any measure of damages, consideration of the building's section 22 of the New York City Building Code, which, in prior condition does not factor into a proximate cause analysis turn, was later incorporated into the Administrative Code under section 27–1031(b)(1). as section C26–385.0 (a). In 1968, section C26–385.0 (a) was recodified as section C26–1903.1 (b)(1), and in 1985, Accordingly, the order of the Appellate Division should that section became section 27–1031(b)(1). Even after its be reversed, with costs, in Yenem Corp. v. 281 Broadway recodification as a local law, however, New York courts Holdings, plaintiff's motion for summary judgment on the continued to treat the provision as a strict liability statute issue of liability granted, in Randall Co., LLC v. 281 (see Hart v. City Theatres Co., 215 N.Y. 322, 325–326, Broadway Holdings, the order of Supreme Court reinstated, 109 N.E. 497 [1915]; Racine v. Morris, 201 N.Y. 240, 244, and the certified question answered in the negative. 94 N.E. 864 [1911]; Post v. Kerwin, 133 App.Div. 404, 405–406, 117 N.Y.S. 761 [2d Dept.1909]; Victor A. Harder Realty & Constr. Co. v. City of New York, 64 N.Y.S.2d 310, 317–318 [Sup.Ct., N.Y. County 1946] ). Chief Judge LIPPMAN and Judges GRAFFEO, READ, We see no reason to depart from that interpretation in SMITH, PIGOTT and JONES concur. our review of section 27–1031(b)(1). Certainly not every Order reversed, with costs, in Yenem Corp. v. 281 Broadway municipal ordinance with state law roots is entitled to Holdings, plaintiff's motion for summary judgment on the statutory treatment, but section 27–1031(b)(1) is unique. Its issue *492 of liability granted, in Randall Co., LLC v. 281 language and purpose are virtually identical, in all relevant Broadway Holdings, order of Supreme Court, New York 3 County, reinstated, and certified question answered in the aspects, to those of its state law predecessors. Indeed, as negative. noted by the dissent below, “neither the wording nor the **396 ***25 import of the statute was *491 materially or substantively altered” either upon its recodification as a All Citations local law or in the century thereafter (see Yenem Corp., 76 A.D.3d at 239, 904 N.Y.S.2d 392). Even more important, 18 N.Y.3d 481, 964 N.E.2d 391, 941 N.Y.S.2d 20, 2012 N.Y. its original purpose of shifting the risk of injury from the Slip Op. 01096 injured landowner to the excavator of adjoining land has

Footnotes 1 The complaint also named “John Doe,” “Jane Doe,” and “XYZ Corporation” as the contractors hired by defendants to perform the excavation work.

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481 (2012) 964 N.E.2d 391, 941 N.Y.S.2d 20, 2012 N.Y. Slip Op. 01096 2 Section 27–1031(b)(1) was repealed effective July 1, 2008 and its equivalent provision is now contained in the New York City Construction Code (Administrative Code, tit. 28, ch. 33, § 3309.4). We do not pass on that provision, as it is not before us on this appeal. 3 In 1882, the law provided: “Whenever excavations, for building or other purposes, on any lot or piece of land in the city and county of New York, shall be intended to be carried to the depth of more than ten feet below the curb, and there shall be any party or other wall, wholly or partly on adjoining land and standing upon or near the boundary lines of such lot, the person causing such excavations to be made ... shall at all times from the commencement until the completion of such excavations, at his own expense, preserve such wall from injury, and so support the same by a proper foundation that it shall remain as stable as before the excavations were commenced” (L. 1882, ch. 410, § 474). 4 We note that we have previously given elevated treatment to local ordinances derived from special laws, finding that they reflect the “policy of the state” and, in some circumstances, may even override a conflicting state law embodying a countervailing public policy (see Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v. New York State Pub. Empl. Relations Bd., 6 N.Y.3d 563, 576, 815 N.Y.S.2d 1, 848 N.E.2d 448 [2006] [holding that the state policy embodied in Administrative Code § 14–115(a), which reserves authority over police disciplinary matters to the New York City Police Commissioner, is “so important that the policy favoring collective bargaining (implemented by the Taylor Law) should give way”] ).

2014 WL 3853846 (N.Y.Sup.) (Trial Order) Supreme Court, New York. New York County

In the Matter of the Application of 401 BROADWAY BUILDING LLC, Petitioner, For an Order pursuant to § 881 or the Real Property Actions and Proceedings Law, for access to the adjoining property, v. 405 BROADWAY CONDOMINIUM and Rafi Gibly, Respondents.

No. 156033/13. July 28, 2014.

Trial Order

Present: Debra A. James, Justice.

Motion Date: _____

Motion Seq. No: 003

*1 The following papers, numbered 1 to 3 were read on this order to show cause for access pursuant to RPAPL § 881 ______

PAPERS NUMBERED

Order to Show Cause/Petition/Affidavits -Exhibits ______1

Answering Affidavits - Exhibits ______2

Replying Affidavits - Exhibits ______3

Cross-Motion: Yes X No

ORDERED that the Order of August 8, 2013 in this action is VACATED, RESETTLED AND CORRECTED AS FOLLOWS PURSUANT TO CPLR 5019. See Kiker v Nassau County, 85 NY2d 879 (1995).

Upon the foregoing papers it is ordered that the petition for a license pursuant to RPAPL § 881 is granted. Moskowitz v Pavarini McGovern, LLC, 83 AD3d 438 (1st Dept 2011) is inapplicable to the instant proceeding on the question of fees as Moskowit, involved the enforcement of a license pursuant to a settlement agreement, and not access pursuant to RPAPL § 881. Matter of Rosma Dev, LLC v South, 5 Misc 3d 1014(A) (Kings County Supreme Court 2004) is distinguishable on its facts as the Rosma petitioner sought voluntarily to erect a structure abutting respondent's premises, rather than to conduct work mandated by law. The matter at bar is practically on all fours with 10 E End Ave Owners, Inc v Two E End Ave Apt Corp, 35 Misc3d 1215(A) (New York County Supreme Court 2012), as such case, as here, involved the prosecution of work in compliance with petitioner's obligations under New York City Local Law 11. As in 10 E End Ave Owners, Inc, this court finds that fees are not warranted in connection with petitioner's application for a license to carry out the emergency work in compliance with Local Law 11.

Accordingly, it is hereby

ORDERED that petitioner is granted a license, pursuant to RPAPL § 881, to enter upon a portion of respondent's building, known as 405 Broadway, New York, New York, specifically respondent's roof, for the limited purpose of (i) placing protective covering on the roof of respondent's building, to protect the respondent's roof, including but not limited to the skylight thereon and (ii) erecting scaffolding that will be attached to the side of petitioner's building, known as 401 Broadway, New York, New York, each in order to allow petitioner to carry out required emergency Local Law 11 repairs to the facade and copper roof of petitioner's building in a manner that ensures the safety of all persons and property, which shall be conducted in accordance with the Work Permits issued by the New York City Department of Buildings and the customary and standard practices used in the building exterior facade industry as certified by an architect licensed in the State of New York and retained by petitioner; and it is further

*2 ORDERED that the grant of this license is subject to the following terms and conditions: petitioner shall (1) be entitled to such license for a period up to no later than April 1, 2014, the expiration date set forth in Work Permit Number 1400-2664-01- EQ-OT issued by the New York City Department of Buildings, commencing upon the entry of this order or as soon as the weather permits as certified by the licensed architect, whichever is later; (2) not unreasonably interfere with respondent's necessary access to its fire escape or chimney, and take the necessary steps, measures, and precautions to prevent and avoid any damage to respondent's building, including but not limited to the roof, skylight or balcony of non party unit owner Paolo Maldini; (3) notify respondent in writing when it has completed the work under the license; (4) upon the completion of the term of the license, return respondent's building within such license area to its original condition, and remove all materials used in construction and any resultant debris from the license area; (5) save respondent harmless from any damages occurring within the license area for the term of this license; (6) procure and maintain during the period of this license a policy of liability insurance in an amount and within limits set forth in the Certificate of Liability dated June 28, 2013 appended to the herein petition which names respondent as additional insured; (7) be held liable to respondent for any damages which respondent may suffer as a result of the granting of this license and repair all damaged property at the sole expense of petitioner.

A hearing shall be held before this court at the expiration of the term of the license granted herein to determine the actual damages incurred by respondent as the result of petitioner's entry upon respondent's building pursuant to this license. Alternatively, respondent may submit any present or future claim for damages directly to petitioner's insurer, without prejudice to its rights to later seek damages before the court.

Petitioner and respondent may agree in writing to any other terms and conditions, including but not limited to jointly causing a photographic survey of the license area ‘and its environs to be conducted as a record of the license area prior to petitioner's commencement of the work under this license. This is the decision and order of the court.

Dated: July 28, 2014

ENTER:

J. S.C.

N. 7-8 Invs., LLC v. Newgarden, 43 Misc. 3d 623, 634, 982 N.Y.S.2d 704, 713-14

(Sup. Ct., Kings Co. 2014) (Saitta, J -- $3,500.00 per month for a one year license); Snyder v. 122 East 78th Street NY LLC, 2014 WL 6471483, *10-11 (Sup.

Ct., N.Y., 2014) (Mills J. -- granting a license fee of $3,000.00 per month to be increased substantially if work not completed within four months);

Ponito Residence LLC v. 12th St. Apartment Corp., 38 Misc. 3d 604, 613, 959

N.Y.S.2d 376, 384 (Sup. Ct., N.Y. 2012)(Madden, J. -- $1,500.00 per month for five months);

CRP/Extell 99 West Side L.P., v. 808 West End Avenue, LLC, N.Y. County Index

No. 117094/2005 (Jan. 13, 2006 N.O.R.) (Lippmann, J. -- $2,000.00 per month for fourteen months);

Rosma Dev. LLC v. South, 5 Misc.3d 1014(A), 798 N.Y.S.2d 713 (Sup. Ct.,

Kings, 2004) (Schmidt J. -- $2,500.00 per month per each of two buildings for twelve months).

Cases Awarding Varying License Fees (For LL 11 Work)

401 Broadway Bldg. LLC v. 405 Broadway Condominium, 2014 WL 3853846 (N.Y.Sup. 2014) (NO FEE); 10 E. End Ave Owners, Inc. v. Two E. End Ave Apartment Corp., 35 Misc. 3d 1215(A), 951 N.Y.S.2d 84 (Sup. Ct. 2012), (NOR) (Sup. NY. 2012)(NO FEE)

Pinto Residence, LLC v. 12th Street Apartment Corp., 2014 WL 3977720, at *3 (Sup. Ct., N.Y., 2014) (Mendez, J. -- $1,750.00 per month for Local Law 11 work);

MK Realty Holding, LLC v. Scneider, 39 Misc.3d 1209(A), 971 N.Y.S.2d 72 (Sup. Ct., Queens, 2013) (Agate, J. -- $1,000.00 one-time fee for allowing petitioner to conduct façade repairs for no more than 15 days).

3/28/2016

EASEMENTS – ACCESS AND TITLE INSURANCE

April 4, 2016

Jack Feirman Vice President and Senior Underwriting Counsel

Old Republic National Title Insurance Company/ Lex Terrae Ltd.

Old Republic International About Our Parent

• We are owned by Old Republic International • One of the nation’s 50 largest publicly held insurance organizations • Traded on the New York Stock Exchange, member of the Fortune 500 • 34 consecutive years of dividend growth (1981) • 74 years on uninterrupted cash dividend payments (1941) • Consolidated assets just shy of $17 billion and over $3.9 billion in shareholders’ equity • Managed for the long run

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Balance Sheet Comparisons Consolidated GAAP as of 12/31/2014

$18.0

$16.0

$14.0

$12.0

$10.0 Billions

in $8.0 $'s

$6.0

$4.0

$2.0

$0.0 ORI Fidelity 1st Amer Stewart Assets $17.0 $14.8 $7.4 $1.4 Reserves & Equity $13.0 $8.7 $3.6 $1.2

Title Industry Market Share By Underwriting Family

100% 7.4% 12.3% 90% 12.6% 80% 12.7% 5.6% 70% 14.7%

60% 29.1% Regionals Stewart 50% 27.9% Old Republic 40% 1st American Fidelity 30%

45.3% 20% 32.4% 10%

0% 2008 2014

Per ALTA statistics based on total premiums written.

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Commercial Growth Premiums on Policies Over $2.5 Million

$250.0 $249.8

$200.0

$195.9

$150.0 Millions

$'s $140.4

$100.0 $115.0

$71.2 $50.0

$41.1

$0.0 2009 2010 2011 2012 2013 2014

Shows premiums written by year on policies in excess of $2.5 million in liability for Old Republic National Title Insurance Company.

DEFINITION OF EASEMENT

• What is an Easement? • An easement is a limited right to use another person's land for a stated purpose.

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EXAMPLES OF EASEMENTS

• Examples of easements include – roads and paths – driveways – railroad tracks or electrical wires – utility lines

TYPES OF EASEMENTS: APPURTENANT

• Types of Easements • Easement Appurtenant. – An easement appurtenant is an easement that benefits one or parcels of land (dominant estate(s) or parcel(s)) and burdens another (servient estate or parcel – Easements appurtenant run with the land – There is privity of estate – Easements appurtenant are interests in real property – Easements appurtenant are not transferred with deeds or other conveyances • The rights and obligations pursuant to such easements remain irrespective of the ownership or other possessory interests in the properties • The rights and obligations under easements appurtenant benefit and burden the respective owners of the dominant and servient parcels.

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EXAMPLE OF EASEMENT APPURTENANT

– Example: A, the owner of Blackacre, grants B, the owner of Whiteacre, an easement to permit the owner of Whiteacre and his successors and assigns, to cross Blackacre. The grant recites sufficient consideration and further recites that it runs with the land.

TYPES OF EASEMENTS: IN GROSS

• Easement in Gross – An easement in gross benefits a person or entity, rather than a parcel of land. The transfer of the easement beneficiary’s rights in and to the easement may not vest any right in and to the easement to the assignee. If an enforceable right is transferred, it is by virtue of the specific assignment of a personal right. There is no privity of estate.

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EXAMPLES OF EASEMENTS IN GROSS

– Example: A, the owner of Blackacre, grants B, the owner of Whiteacre, an easement to permit the owner of Whiteacre but not necessarily his successors and assigns, to cross Blackacre. The grant recites sufficient consideration but does not recite that it runs with the land. – Example: A, the owner of Blackacre, grants B, the owner of Whiteacre, an easement to permit the owner of Whiteacre and his successors and assigns, to cross Blackacre but requires A’s consent to any assignment. The grant recites sufficient consideration but does not recite that it runs with the land. – Example: A, the owner of Blackacre, grants B, the owner of Whiteacre, the right to run a pipeline across Blackacre from B’s oil storage facility on Whiteacre. The document creating this right permits transfers only with A’s consent.

CREATION OF EASEMENTS

• Creation of Easements • Easements may be: –Express, –Implied or –Prescriptive

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EXPRESS EASEMENTS

• Express Easements. Express easements are created by a written document. – by mutual agreement between landowners; – by a unilateral granting or reservation in a deed or other instrument as part of a conveyance.

IMPLIED EASEMENTS

• Implied Easements. – An implied easement may be created only when two parcels of land were at one time treated as a single tract, or owned by a common owner (unity of title). • Note that common grantor does not mean common source of title. • Common owner in this context means owner of parcels who conveyed out to the claiming owner, so an owner of 2 or more parcels who acquired title from a common owner who restricted the properties or as a result of his ownership caused an implied easement to be granted can convey out without regard to the easement.Korn v. Campbell, 192 N.Y. 490; 85 N.E. 687 1908). – Easements appurtenant may arise by implication. – Easements in gross may not arise by implication – Implied easement pertains only to the use to which the premises to be burdened were being used at the time of the division of the parcels. – An easement by necessity is a form of implied easement may arise if the easement is necessary (not merely convenient) for the use and enjoyment of one parcel that had been part of a larger plot with respect to which the easement is claimed. The easement by necessity comes into effect when one parcel of land is sold and one or more remaining parcel(s) is or are deprived thereby of a required access to, for example, a public road or utility. • “It is arguable that plaintiff also established the elements of an easement by necessity by showing that, in addition to unity of title, at the time of severance the easement was absolutely necessary to obtain access to the landlocked parcel.” (Stock v Ostrander,233 AD2d 816 (3d Dept. 1996); Astwood v Bachinsky, 186 AD2d 949 (3d Dept. 1992). (Emphasis added)

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IMPLIED EASEMENTS

• Easements By Implication From Preexisting Use – Toestablishaneasementbyimplicationfrom preexisting use, a claimant must prove three elements: • Unity of title followed by a subsequent separation of title; • That prior to the separation of title, the claimed easement had been used for so long and in such an obvious or apparent manner as to demonstrate it was meant to be permanent; and • That the use is necessary for the beneficial use and enjoyment of the property retained.

IMPLIED EASEMENTS (FILED MAPS I)

• When property is conveyed with reference to a filed map showing streets abutting the property conveyed, an easement in the private street so shown passes with the conveyance. DeRuscio v. Jackson, 164 A.D.2d 684 (3d Dept. 1991).

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IMPLIED EASEMENTS (FILED MAPS II)

• Where a developer of land sells lots with reference to a map on which squares or parks or beaches are designated and representations are made by the developer that such parks or squares or beaches are for the use of the lot owners, the purchasers of such lots acquire an easement in such parks, squares or beaches by implication and representation. Wilkinson V. Nassau Shores, 1 Misc.2d 917, 86 N.Y.S.2d 603 (Sup. Ct. Nassau Co. 1949), affd 304 N.Y. 614, 107 N.E. 614, 107 N.E.2d 93 (1952).

IMPLIED EASEMENTS (FILED MAPS EXAMPLE)

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STATUTORY EASEMENTS LIGHT AND TELEPHONE

• Real Property Law • §335‐a, The owner of any lot, plot, block, site or other parcel of real estate being a subdivision or part of a subdivision of any larger parcel or parcels of real property shown upon a map of said parcel or parcels of real property and of its subdivision or subdivisions, filed in the office of the county clerk or of the register of deeds of the county where the property is situated, prior to the sale or conveyance of such lot, plot, block, site or other parcel, or subdivision thereof by the seller thereof, upon which map any road or street is indicated or shown as giving access to or egress from any public road or street to such lot, plot, block, site or other parcel of real estate thereon indicated or to any part thereof, sold or granted after such filing, and the owner of any lot, plot, block, site or other parcel of real estate, the conveyance whereof shall specifically give the right of access to or egress from the same by any private road or street over lands belonging to the maker of such conveyance and which road or street is described in such conveyance, may, when necessary to the enjoyment of the lot, plot, block or site or other parcel of real estate so sold or conveyed and when the same is not bounded by a public road, lay, beneath the roads or streets indicated and shown upon such map or described in such conveyance as giving access to or egress from any public road to such property so sold or conveyed as aforesaid, wires and conduits for the purpose of supplying the said property with electric light and telephone service. •

FILED MAP (ROADS)

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PRESCRIPTIVE EASEMENTS

• Prescriptive Easements. – Prescriptive easements, also known as easements by prescription, arise if an individual has used an easement in a certain way for a certain number of years. In most states, a prescriptive easement will be created if the individual's use of the property meets the following requirements: • The use is open and notorious, i.e. obvious and not secretive. • The individual actually uses the property. • The use is continuous for the statutory period ‐ typically between 5 and30years(10yearsinNewYork). • The use is adverse tothetrueowner,i.e.withouttheowner's permission and • Under claim of right.

ADVERSE POSSESSION DEFINED RPAPL §501

Real Property Actions and Proceedings Law

§ 501. Adverse possession; defined. For the purposes of this article:

1. Adverse possessor. A person or entity is an "adverse possessor" of real property when the person or entity occupies real property of another person or entity with or without knowledge of the other's superior ownership rights, in a manner that would give the owner a cause of action for ejectment.

2. Acquisition of title. An adverse possessor gains title to the occupied real property upon the expiration of the statute of limitations for an action to recover real property pursuant to subdivision (a) of section two hundred twelve of the civil practice law and rules, provided that the occupancy, as described in sections five hundred twelve and five hundred twenty‐two of this article, has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.

3. Claim of right. A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be. Notwithstanding any other provision of this article, claim of right shall not be required if the owner or owners of the real property throughout the statutory period cannot be ascertained in the records of the county clerk, or the register of the county, of the county where such real property is situated and located by reasonable means. •

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CLAIM OF RIGHT

• “Defendants argue that there is no claim of right when the adverse possessor has actual knowledge of the true owner at the time of possession. However, longstanding decisional law does not support this position. … Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors. The fact that adverse possession will defeat a deed even if the adverse possessor has knowledge of the deed is not new.” Children's Magical Garden, Inc. v. Norfolk Street Development, LLC, S&H Equities (NY), Inc., Serge Hoyda, and 157, LLC, 2015 N.Y. Misc. LEXIS 4288; 2015 NY Slip Op 32227(U) (Emphasis added) •

PRESCRIPTIVE EASEMENTS TOLLING STATUTORY PERIOD

• Sitting on one’s rights may be fatal to a claim against an adverse possessor even when the facts may show fraud or other effort to withhold information from the landowner.

• Humbert et al, and The Rector, Church‐Wardens & Vestrymen of Trinity Church in The City of New York,24 Wend. 587; 1840: The court held that fraud was not one of the exceptions noted in the statute as tolling it, holding that the trial court was proper in dismissing the action as time barred because the possessors adversely possessed the land for over 20 years.

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THIRD PARTIES STRANGER TO THE DEED

• Stranger to the Deed Doctrine: Owner, having already conveyed an adjoining parcel, could not "reserve" in the deed, upon the sale of the remaining parcel, an express easement appurtenant over the previously conveyed adjoining parcel for the benefit of the grantee of the remaining parcel. Estate of Thomson v. Wade, 69 NY2d 570, 509 N.E.2d 309, 516 NYS2d 614 (1997).

INSURING EASEMENTS

• Insuring Easements

• Title insurance is not a guarantee of the enforceability of contractual rights but of ownership and marketability of interests in real estate.

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INSURANCE LAW §6401

Insurance Law

• §6401 Definitions. In this article, the following definitions apply except as otherwise specified:

(a) "Title insurance corporation" means a corporation exercising any of the powers described in paragraph one or two of subsection (b) of section six thousand four hundred three of this article.

(b) "Title insurance policy" means any policy or contract insuring or guaranteeing the owners of real property and chattels real and other persons interested therein, or having liens thereon, against loss by reason of encumbrances thereon and defective titles. (Emphasis added)

UNDERWRITING EASEMENTS

• Underwriting Standards – Easement Must Be Appurtenant • Licenses, profits a prendre, and easements in gross are generally uninsurable. • Exception will be made for easements in gross based on several criteria • Prior transfers without consent • Type of use • Use of permanent improvements

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RECORDING EASEMENTS REQUIREMENTS FOR INSURANCE

– Easement instrument must be in recordable form and contain the following basic terms • Grantor • Grantee • Granting cause describing the interest being conveyed • Consideration • Proper legal description or other specific information identifying location (e.g., map with calls delineated and easement area identified) • Description of dominant parcel • Description of servient parcel • Statement that easement runs with the land or other indicia of intent to run with the land as recognized by local law (e.g., successors and assigns provision)

AFFIRMATIVE INSURANCE

• Affirmatively Insuring Easements Appurtenant – Use of “Together with” language in the deed conveying the property to which the easement is appurtenant and including that description in Schedule A to the title insurance policy – Identifying the easement as a separate parcel in Schedule A – To have insurance the policy must specifically insure the easement as the insured premises or part thereof • If not so identified in Schedule A, easement may exist but it is not insured

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APPURTENANCE CLAUSE

• The Appurtenance Clause is sufficient to convey the rights in and to an easement without identifying the easement.

PURPOSE

– Specific Purpose • The easement must have been created for a specific purpose (driveway, ingress and egress, party wall, etc.). A plain or nonspecific purpose easement is an impossibility. • The purpose of the easement, as stated in the easement grant, must be made a part of the easement description.

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EXCLUSIVITY (OR NOT)

– Exclusive or Nonexclusive • Exclusivity, if claimed, must have been specifically stated in the instrument that created the easement. • In any other case, the easement must be referred to as a nonexclusive easement and rights (or possible rights) of others will be excepted.

CHANGE OF CIRCUMSTANCES AFFECTS INSURABILITY

– Change of Circumstances (Overburdening) • Access granted originally to one parcel may become unenforceable if the dominant parcel has since been subdivided • Easement may become unenforceable if use of the dominant parcel has changed so as to increase use of the easement to an extent not intended • Title company must review the circumstances of the easement’s grant and current use

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WRITTEN INSTRUMENT

– Written Instrument • All owners of the servient parcel must execute the instrument. • If there is a lien (e.g., a mortgage) on the servient parcel, lien holder must join in the instrument or grant its consent in recordable form. • Written instrument of record is insurable.

ADDITIONAL CHAINS SEARCHES

– Separate Chains • To insure an easement appurtenant, title to each servient parcel must be searched • Appropriate exceptions will be raised based on circumstances (e.g., real estate taxes, mortgages)

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PROPER RECORDING

• Record against the servient parcel. • A bona fide purchaser for value without knowledge may take free of the easement if the easement does not appear in the chain of title for that parcel.

WHWWHEN ADDITIONAL SEARCH REQUIRED

• It is not necessary (no duty) to search all the chains of title out of a common grantor. • There must be an independent reason to search other titles to determine whether a parcel is subject to an easement.

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POLICY EXCEPTIONS

– Exceptions • Policy will except or exclude from coverage the terms of the easement instrument – Insurance is not intended to assure the insured that the easement has not been violated – Only that a right exists) – Insured has obligation to determine the conditions upon which the right may be exercised or has been violated » For example, the servient estate’s owner is not prohibited from using the easement area in a fashion not inconsistent with the purpose for which the easement was granted. Herman v. Roberts, 119 N.Y. 37; 23 N.E. 442 (1890). • Although perpetual, an easement may be terminable for breach of covenants or overburdening or occurrence of some contingency • In the last case, insurance should refer to the easement as potentially temporary • If a violation (unknown) of the easement exists on the effective date of the policy, this exception exonerates the title company from liability • Policy may except change in state of facts since date of easement grant. • Any unusual burden, qualifications, or restriction contained in the easement grant should be specifically set forth in Schedule B of the policy, such as by exception to the terms of the easement instrument.

RECIPROCAL EASEMENT

– Reciprocal Easement • If the dominant estate is also a servient estate, an exception will be made in Schedule B of the policy for the terms of the easement.

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RECIPOROCAL EASEMENT - EXAMPLE

INTEREST INSURED

– What is Insured • Easements often contain a multitude of reciprocal obligations and benefits • Insurance will assure that the access right has been granted but not the enforceability of the terms • Requests to insure the “rights granted under” the instrument should be refused by the underwriter • Beyond access to the burdened parcel, the other rights are not interests in real property • Location of Easement – If to be considered, requires certified survey – Title insurance policies do not insure the accuracy of a survey. Title company is relying on the survey equally with the owner and/or the lender. • Affirmative insurance as to the location of an easement is generally to be avoided by an underwriter • Insurance of an easement does not insure that the actual use will be reasonable. • Policy does not insure that grantor was in compliance with the terms of the easement at thetimeoftheconveyance – Would consider same with receipt of an estoppel from servient owner but then, why would insurance be required? – Will usually insure against reversion of title or forfeiture if easement is violated by insured

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INSURING PRESCRIPTIVE EASEMENTS (OR NOT)

– Prescriptive easements generally will not be insured • Will insure if there is a judgment entered declaring the adverse possessor had title to the easement by adverse possession • Without a judgment, the risk of litigation mitigates against insuring.

TITLE INSURANCE POLICY

Insurance Policy – New York (TIRSA) • The Access endorsement insures the lender against loss if the land insured does not abut upon an identified physically opened street. The policy form, without the endorsement or affirmative insurance, only insures a right of legal access to and from the land. • TIRSA Owner Policy and Loan Policy Covered Risk 4: “No right of access to and from the Land” • TIRSA Access Endorsement (Loan Policy only) ”The Policy insures the Insured against loss which the Insured shall sustain in the event that the described land does not abut upon a physically open public street known as ______.” • Street report required • Survey should show public street abutting the insured parcel • $25 charge for the endorsement

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ACCESS ENDORSEMENTS (ALTA)

ALTA Coverages – Three Endorsements: • 17‐06 (does not have actual vehicular and pedestrian access to and from named street(s); street(s) not physically open; no right to use existing curb cuts or entries along portion of the street abutting the insured premises) • 17.1‐06 (same as 17‐06, except insures that insures against loss or damage if specified easement does not provide such access) • 17.2‐06 (insures against loss or damage by reason of no access to specified utilities) • Require – Survey and/or – Letters from specified utility companies and/or – Other proof of accounts

ACCESS ENDORSEMENT (TIRSA)

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INSURING LOCATION

• Insurance of the location of an easement – Will require a certified survey – Title companies reluctant to insure because they do not want to insure accuracy of a survey map. – Relocation is an issue. – A grant of an easement does not necessarily mean that it always must remain where indicated – A landowner had the right to relocate a right‐of‐way easement in the absence of evidence that the parties to its granting intended that it not be relocated, so long as the easement holder's right of ingress and egress was not impaired. Lewis v. Young, 92 N.Y.2d 443; 705 N.E.2d 649; 682 N.Y.S.2d 657 (1998).

LICENSES DEFINITION

• Licenses • Typical definition: • A permissive use. Personal right that is revocable and non‐transferable. Termination at the will of the licensor. Does not run with the land. A conveyance of land will ordinarily revoke a license but may not revoke an easement. Although a license generally does not carry any enforceable rights, an easement confers definite property rights, which are enforceable against the servient estate. Not considered an interest in the land itself.

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LICENSES - ATTRIBUTES

• Definition is wrong in many respects: • May be for fixed term.

• May be transferable

• Rights are enforceable

• In a broad sense, they do confer an interest (if not an estate) in real property

ACCESS LICENSES RPAPL §881

Real Property Actions and Proceedings Law

§881. Access to adjoining property to make improvements or repairs. When an owner or lessee seeks to make improvements or repairs to real property so situated that such improvements or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, and permission so to enter has been refused, the owner or lessee seeking to make such improvements or repairs may commence a special proceeding for a license so to enter pursuant to article four of the civil practice law and rules. The petition and affidavits, if any, shall state the facts making such entry necessary and the date or dates on which entry is sought. Such license shall be granted by the court in an appropriate case upon such terms as justice requires. The licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.

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RPAPL §881 LICENSE AFFECTS TITLE

– Typically occurs after owner has acquired title – Access under Section 881 is not insurable to an owner in New York – License would be an exception to title inner’s policy of burdened parcel as would proceeding to enforce such a license – License is not of right but subject to the discretion of the court and terms are as justice may require

ACCESS AGREEMENT - TERMS

– Typical terms • Compensation for loss of use and enjoyment of property • Fee for license itself • Reimbursement for legal, architectural/engineering fees to review plans and negotiate access agreement or court costs • Liability/property insurance to be carried and/or indemnity • Term • Property protection • Hours • Cleanup obligations • Means of ingress and egress • Surety bond and/or cash undertaking to assure performance

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RPAPL §881 LICENSE AUTHORITY

• “A petition pursuant to RPAPL 881 has certain similarities to an eminent domain proceeding. A taking by eminent domain is in effect a forced sale, and a license pursuant to RPAPL 881 is in essence a forced granting of a temporary easement. Even though the primary beneficiary of both a taking by eminent domain and a license pursuant to RPAPL 881 may be a privateparty,therationalefortheforcedsaleorforced temporary easement, is the benefit to the public.” Matter of North 7‐8 Invs. LLC (Newgarden) 2014 NY Slip Op 24051 Decided on February 26, 2014 Supreme Court, Kings County.

TERMINATION OF EASEMENTS

• Termination of Easements • Easements will continue indefinitely unless terminated by one of the following methods: – Express Agreement. An easement holder and easement owner may decide by written agreement to terminate the easement. – Abandonment. An easement is abandoned when the easement holder takes affirmative action to permanently desert the easement. Non‐use of the easement alone does not qualify as abandonment. – Merger. Pursuant to the doctrine of merger, an easement is extinguished if the owner of the dominant estate obtains title to the servient estate. – Ending by Necessity. An easement by necessity is terminated when there is no further need for the easement.

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MEANS OF TERMINATING EASEMENTS

• “It is the law of this State that an easement created by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession.” Gerbig v. Zumpano, 7 N.Y.2d 327; 165 N.E.2d 178; 197 N.Y.S.2d 161 (1960).

ABANDONMENT

• "Where an abandonment of an easement is relied upon, there must be clear and convincing proof of an intention in the owner to abandon it as such", independent of the mere nonuser (Hennessy v. Murdock, 137 N.Y. 317; see, also, Lewisohn v. Lansing, 119 A.D. 393).

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ABANDONMENT THIRD PARTY ACTS

• Abandonment by non‐use by reason of a third party’s acts will not be implied. Weil et al. v. Atlantic Beach Holding Corporation et al., 1 N.Y.2d 20, 133 N.E.2d 505; 150 N.Y.S.2d (1956).

ABANDONMENT THIRD PARTY ACTS - EXAMPLE

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NON-USE

• “Title [to an easement]is not affected by non‐user, and unless there is shown against him some adverse possession or loss of title in some of the ways recognized by law, he may rely on the existence of his property with full assurance that when the occasion arises for its use and enjoyment he will find his rights therein absolute and unimpaired. Welsh v. Taylor, 134 N.Y. 450, 31 N.E. 896 (1892)

MERGER

• Where the title in fee to both the whole of the dominant and servient estates becomes vested in one person, an easement is extinguished. Will v. Gates, 89 N.Y.2d 778, 680 N.E.2d 1197, 658 N.Y.S.2d 900 ( 1997)

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MERGER - INTENT

• Merger is also a matter of intent and may be presumed that intention to merge absent a contrary indication or reason why it would be prejudicial to the owner that the estates be merged and merger may be deduced from all of the circumstances. Clift v. White. 12 N.Y. 519 (1855); Van Rensselaer's Heirs v. Penniman, 6 Wend. 569 (1831); In re Nochomov, 206 Misc. 290; 132 N.Y.S.2d 720 (Surr. Ct., Kings Co. 1954)

TAX SALES

• Private easements generally are not extinguished by a tax sale if the easement over the servient parcel was acquired to the levying of a tax are not extinguished by a tax sale. Tax Lien Co. of N.Y. v. Schultze, 213 N.Y.2d 9, 106 N.E. 751 (1914); Beeman v. Pawelek, 96 N.Y.S.2d 2014 (Sup. Ct. Steuben Co. 1949), affd 276 A.D. 1057, 96 N.Y.S2d 312 (4th Dept. 1950); Wilkinson V. Nassau Shores, 1 Misc.2d 917, 86 N.Y.S.2d 603 (Sup. Ct. Nassau Co. 1949), affd 304 N.Y. 614, 107 N.E. 614, 107 N.E.2d 93 (1952).

31 Board of Managers of Artisan Lofts Condominium v. Moskowitz, 114 A.D.3d 491 (2014) 979 N.Y.S.2d 811, 2014 N.Y. Slip Op. 00937

generally apply a standard of reasonableness (see e.g. Mindel v. Phoenix Owners Corp., 210 A.D.2d 167, 620 N.Y.S.2d 114 A.D.3d 491 359 [1st Dept.1994], lv. denied 85 N.Y.2d 811, 631 N.Y.S.2d Supreme Court, Appellate Division, 287, 655 N.E.2d 400 [1995] ). Courts are required to First Department, New York. balance the interests of the parties and should issue a license In re The BOARD OF MANAGERS OF ARTISAN “when necessary, under reasonable conditions, and where the LOFTS CONDOMINIUM, Petitioner–Respondent, inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license is v. refused” (Chase Manhattan Bank [Natl. Assn.] v. Broadway, Herbert MOSKOWITZ, et al., Whitney Co., 57 Misc.2d 1091, 1095, 294 N.Y.S.2d 416 Respondents–Appellants. [Sup.Ct., Queens County 1968] ), affd. 24 N.Y.2d 927, 301 N.Y.S.2d 989, 249 N.E.2d 767 [1969]. Feb. 13, 2014.

Attorneys and Law Firms Here, it is clear that petitioner has failed to make a showing as to the reasonableness and necessity of the scaffolding Peluso & Touger, LLP, New York (Robert Moore of counsel), device referenced in the order, a “swing scaffold,” which for appellants. would need to be attached to respondents' building. While the parties agree that a limited license for petitioner to protect Wolf Haldenstein Adler Freeman & Herz, LLP, New York respondents' property is reasonable, they sharply disagree (Rachael G. Ratner of counsel), for respondent. over the extent of access for any other purpose. Until that Opinion dispute is resolved, the order was premature. *492 Order, Supreme Court, New York County (Joan M. Kenney, J.), entered June 6, 2013, which granted petitioner a license to enter respondents' adjoining property in order to GONZALEZ, P.J., SWEENY, RICHTER, MANZANET– take steps to protect respondents' property during renovations DANIELS, CLARK, JJ., concur. to the facade and roof of petitioner's building, unanimously reversed, on the law, with costs, the order vacated, the petition Parallel Citations denied, and the proceeding dismissed. 114 A.D.3d 491, 979 N.Y.S.2d 811 (Mem), 2014 N.Y. Slip In determining whether or not to grant a license pursuant to Op. 00937 Real Property Actions and Proceedings Law § 881, courts

thereby entitled to license allowing entry upon adjoining properties to make repairs to building. KeyCite Yellow Flag - Negative Treatment McKinney's RPAPL § 881. Distinguished by McMullan v. HRH Const., LLC, N.Y.A.D. 1 Dept., March 1, 2007 Cases that cite this headnote

[2] Licenses Mode of Creation Building owner was prepared to do all that was feasible to avoid injuries from its entry upon adjoining properties and, thus, was entitled to license allowing entry in order to make repairs to building; there was no practical means of encapsulating adjoining properties to afford absolute protection against mishap, but building owner proposed to use netting to prevent injury from fall of debris, and collapse of scaffolding was unlikely. McKinney's RPAPL § 881.

1 Cases that cite this headnote

Landowners filed actions seeking injunctions to prevent [3] Action neighboring building owner from entering their properties. Change of Character or Form The Supreme Court, New York County, Cahn, J., converted actions into proceeding for license to enter property for Trial court could convert landowners' actions for purpose of repairing building, and granted license. Appeal injunctions prohibiting entry of their property was taken. The Supreme Court, Appellate Division, held that: into proceeding by building owner to obtain (1) standard of reasonableness applied to issue of whether license for entry upon adjoining property for building owner took sufficient steps to avoid injuries to be purpose of repairing building, in view of building entitled to license; (2) building owner was prepared to do owner's early notice that it was seeking license, all that was feasible to avoid injuries from its entry upon presentation of all evidence that would have been adjoining properties and, thus, was entitled to license; (3) adduced in license proceeding, and substantive trial court could convert landowners' actions for injunctions claims made in support of building owner's into proceeding by building owner to obtain license; and asserted need to enter adjoining properties. (4) building owner received benefit of proceeding and, thus, McKinney's RPAPL § 881; McKinney's CPLR would have to bear all costs. 103(c).

2 Cases that cite this headnote Affirmed as modified.

[4] Costs Nature and Grounds of Right West Headnotes (4) Building owner received benefit of proceeding in which it obtained statutory license to enter [1] Licenses adjoining property for purpose of making repairs Mode of Creation to building and, thus, would have to bear all Standard of reasonableness applied to issue of costs of proceeding, including referee fees, even whether building owner took sufficient steps though action had been initiated by adjoining to avoid injuries from its entry upon adjoining landowners to obtain injunctions prohibiting properties and whether building owner was

is further diminished if the protective devices recommended building owner from entering their properties. McKinney's RPAPL § 881. by the Referee are incorporated in the cabling; however, there is no practical means of encapsulating plaintiffs' property to Cases that cite this headnote afford absolute protection against such a mishap. We adopt a standard of reasonableness in concluding that defendant is prepared to do all that is **361 feasible to avoid injuries resulting from its entry upon plaintiffs' properties, and that an **360 Before WALLACH, J.P., and KUPFERMAN, RPAPL 881 license was therefore properly granted. WILLIAMS and TOM, JJ. [3] The court's conversion of this action, commenced by Opinion plaintiffs for injunctive relief, into a proceeding by defendant for leave to enter plaintiffs' properties for repairs under *167 MEMORANDUM DECISION. RPAPL 881, was unusual but proper (CPLR 103[c] ), in view of (1) defendant's affirmation in opposition to the original Order and judgment (one paper), Supreme Court, New York application for a preliminary injunction giving early notice County (Herman Cahn, J.), entered December 14, 1993, that defendant was seeking relief under RPAPL 881; (2) the which, inter alia, converted plaintiffs' actions for injunctions presentation, in what were already protracted proceedings, prohibiting defendant from entering upon their respective of all the *168 evidence that would be adduced in an properties into a proceeding by defendant under RPAPL 881, RPAPL 881 proceeding; and (3) the substantive claims made and thereupon granted defendant a limited license to enter in support of defendant's asserted need to enter plaintiffs' upon plaintiffs' properties for purposes of repair work on properties. defendant's building, unanimously modified, on the law and the facts and in the exercise of discretion, to impose the [4] Because plaintiffs commenced this proceeding and Referee's costs on defendant, and otherwise affirmed, without defendant received the benefit of it being converted by the costs. Court into an RPAPL 881 proceeding, defendant should bear all costs of the proceeding, including the Referee's fees, and [1] [2] We agree with the IAS court, and the Referee, we so modify. whose report it adopted, that the netting proposed by defendant will be sufficient to prevent injury from the fall of debris attendant upon the repair work that needs to be done to All Citations defendant's building. The record indicates that the collapse of scaffolding is generally unlikely, and the risk of such a mishap 210 A.D.2d 167, 620 N.Y.S.2d 359

to obtain license to enter adjoining property to make improvements or repairs to his own real 43 Misc.3d 623 property, even where the access is necessary Supreme Court, Kings County, New York. because a building is constructed to the In the Matter of the Application of NORTH property's lot line. McKinney's RPAPL § 881. 7–8 INVESTORS, LLC, Petitioner, Cases that cite this headnote For an Order and Judgment pursuant to RPAPL § 881 granting Petitioner a license to [3] Licenses enter the Adjoining property of, Respondent, Nature and extent of rights v. Under statute governing special proceedings Mark A. NEWGARDEN, Respondent. for property owner to obtain license to access Feb. 26, 2014. adjoining property to make improvements or repairs to his own real property, upon such Synopsis terms as justice requires in an appropriate case, Background: Property owner petitioned for order granting “such terms as justice requires” extends to the license to enter adjoining property in order to construct new nature and extent of access that is necessary, buildings on owner's property. Adjoining owner cross-moved the duration such access may be necessary, to dismiss petition and for sanctions. as well as what protections may be necessary to safeguard the adjoining owner's property. McKinney's RPAPL § 881. [Holding:] The Supreme Court, Kings County, Wayne P. Cases that cite this headnote Saitta, J., held that license would be granted to access adjoining property on terms that justice required. [4] Licenses Construction and operation in general Petition granted; cross-motion denied. On petition for license to access adjoining property to make improvements or repairs to petitioner's own real property, the risks and costs West Headnotes (14) involved in the use that a petitioner makes of its neighbor's property should be wholly borne by the petitioner. McKinney's RPAPL § 881. [1] Licenses Nature and extent of rights Cases that cite this headnote The construction of a new building is an “improvement” of real property within the [5] Licenses meaning of the statute governing special Construction and operation in general proceedings for property owner to obtain Equity requires that the adjoining owner license to access adjoining property to make compelled to grant access to his property, so that improvement or repair to his own real property. the neighboring owner can make improvements McKinney's RPAPL § 881. or repairs to his own property, should not Cases that cite this headnote have to bear any costs resulting from the access, including steps necessary to safeguard the adjoining property. McKinney's RPAPL § [2] Licenses 881. Nature and extent of rights Access to adjoining property is deemed Cases that cite this headnote “necessary,” as required for a property owner

[6] Licenses [9] Costs Construction and operation in general American rule; necessity of contractual or Property owner's access to adjoining property statutory authorization or grounds in equity was necessary to complete owner's new building, Attorney fees and disbursements are considered as required to grant owner license to access incidents of litigation, and the prevailing party adjoining property on such terms as justice may not collect them from the loser unless an required, including requiring owner to block award is authorized by agreement between the access to adjoining owner's deck from second parties, or by statute or court rule. floor of new building, to install sufficient netting above safety balcony on new building Cases that cite this headnote to prevent tools and material from falling onto or damaging adjoining owner's garage, to [10] Costs pay adjoining owner's reasonable architect fees Injuries to property incurred in reviewing owner's plans, making Licenses counter proposals, and ongoing monitoring of Construction and operation in general work during term of license, to pay adjoining The statute authorizing grant of a license to a owner's reasonable attorney fees incurred in property owner to enter adjoining property to negotiating, reviewing, and drafting agreement, make improvements or repairs on the owner's and to pay license fee of $3,500 per month to property, on such terms as justice requires, adjoining owner. McKinney's RPAPL § 881. contains broad language and allows for the Cases that cite this headnote flexibility and full scope upon which equity depends; it is sufficient statutory authority to award reasonable attorney fees as a condition [7] Licenses of a license, where the circumstances warrant it. Construction and operation in general McKinney's RPAPL § 881. An adjoining owner compelled to grant a license for access to his property, so that the neighboring Cases that cite this headnote owner can make improvements or repairs to his own real property, should not be put in a position [11] Costs of either having to incur the costs of an design Injuries to property professional to ensure the neighboring owner's If an adjoining property owner is successful in work will not endanger his adjoining property, opposing a neighboring owner's petition for a or having to grant access without being able to license to access the adjoining property to make conduct a meaningful review of the neighboring improvements and repairs to the neighboring owner's plans. McKinney's RPAPL § 881. owner's property and no license is granted, Cases that cite this headnote then the adjoining owner would not be entitled to attorneys fees for successfully opposing the petition. McKinney's RPAPL § 881. [8] Costs American rule; necessity of contractual or Cases that cite this headnote statutory authorization or grounds in equity Generally, absent a statute authorizing an award [12] Costs of attorney fees, each side in a litigation must Injuries to property bear the cost of his or her own attorneys. Licenses Cases that cite this headnote Construction and operation in general In deciding whether justice requires awarding attorney fees, either for negotiating a license

agreement or for opposing a neighboring owner's petition for a license to access adjoining property Ingram Yuzek Gainen Carroll & Bertolotti, LLP, New York, to make improvements and repairs to the for Defendants. neighboring owner's property, the court must Opinion balance the equities, by considering the extent to which the access sought interferes with the WAYNE P. SAITTA, J. adjoining owner's use and enjoyment of the property, the risks that access poses to the *624 Petitioner, NORTH 7–8 INVESTORS, LLC, property, as well as the complexities which (hereinafter “ Petitioner”), move this Court for an Order the access sought presents in drafting a license pursuant to RPAPL § 881 for an Order granting Petitioner agreement. McKinney's RPAPL § 881. a license to enter the adjoining property owned by MARK A. NEWGARDEN (hereinafter Respondent”). Respondent Cases that cite this headnote cross-moved to dismiss the petition and for sanctions.

[13] Costs Upon reading the Verified Petition for Access to Adjoining Injuries to property Property Pursuant to RPAPL 881 by Russell M. Wolfson, Esq., Attorney for Petitioner, NORTH 7–8 INVESTORS, Licenses LLC, dated July 3rd, 2013, together with the Affidavit of Construction and operation in general Tomer Yogev in Support of the Petition, dated July 3rd, Any attorney fees included as a condition of a 2013, and all exhibits annexed thereto; the Notice of Cross– neighboring owner a license to access adjoining Motion by Melissa T. Billig, Esq., Attorney for Respondent, property to make improvements and repairs MARK A. NEWGARDEN, dated July 23rd, 2013, together to the neighboring owner's property should be with the Affirmation of Melissa T. Billig, Esq., in Opposition proportional to the size and scope of the project. to Verified Petition and in Support of Cross–Motion, undated, McKinney's RPAPL § 881. the Affidavit of MARK NEWGARDEN, sworn to July 23 2013, the Affidavit of John D. Nakrosis Jr., sworn to July Cases that cite this headnote 23 2013, and all exhibits annexed thereto; the Memorandum of Law in Opposition and in Support of Cross–Motion of [14] Licenses Melissa T. Billig, Esq., dated July 23rd, 2013; a hearing Construction and operation in general having been held on August 12–14 2013, and September Under statute governing special proceedings **707 11, and 25, 2013, and October 11, 2013, and after for property owner to obtain license to access further argument of counsel on January 24, 2014, and due adjoining property to make improvements or deliberation thereon, the Petition is granted upon the terms repairs to his own real property, upon such and conditions set forth below and the cross motion is denied. terms as justice requires, the court can impose conditions on granting the license, including posting a bond, obtaining insurance coverage, FACTS agreeing to indemnify the adjacent landowner, and paying for the use of the license. McKinney's Petitioner, NORTH 7–8 INVESTORS, LLC, is the owner of RPAPL § 881. the property located on Block 2322, Lots 10, 11, 28, and 30, in the Northside *625 neighborhood of Williamsburg, Cases that cite this headnote Brooklyn. Respondent MARK A NEWGARDEN resides at and is the owner of 18 Havemeyer Street, Brooklyn New York (Block 2322, Lot 18) which abuts part of Petitioner's property. Specifically the rear wall of Respondent's one story garage Attorneys and Law Firms which is on his west property line abuts approximately 25 feet of Petitioner's east property line. Petitioner's property is **706 Russell M. Wolfson, Esq., Baritz & Cdeman, LLP, an irregularly shaped parcel that runs the full width of Block New York, for Plaintiff.

2322 from North 7th to North 8th Street and is approximately 180,000 square feet. In response to the objections raised by Respondent's architect, Petitioner modified their plans to reduce the need for access to According to the testimony of Tomer Yogev, Petitioner's Respondent's property. The revised plans call for no shoring project manager, the Petitioner is currently developing two of Respondent's rear garage wall and for taking down the seven story buildings on the property that will contain 159 adjacent **708 wall on Petitioner's property with hand tools. residential units. Petitioner also revised its plans so as to no longer require underpinning Respondent's building. Originally, Petitioner sought a license to gain access to Respondent's property to shore Respondents garage, and Petitioner has modified its proposed roof protection plan so to place a protective covering on a deck built on top of that it does not have to cover Respondent's roof deck with Respondent's garage roof, in order to protect the roof deck plywood to protect the roof during the installation of windows during construction of the buildings. Petitioner also sought and finishing of the building facade. Also, Petitioner will a license for temporary scaffold that would project into no longer need to use the deck for access to scaffolding. Respondent's air space in order to allow workers to complete Under the new proposed plans, Petitioner will construct a and waterproof the facade of one of the new buildings. cantilevered safety balcony at the third floor level of its new building which will project into Respondent's airspace over Petitioner sought access to shore the rear wall of Respondent's his roof deck. The work platform will provide access to garage because the New York City Department of Buildings a scaffold attached to Petitioner's building. Netting will be (DOB) had made that a condition of lifting a partial stop work installed from the building to the safety balcony to protect order it had issued, prohibiting work on the area adjacent to Respondent's property from any falling material. Respondent's rear garage wall. This partial stop work order prevented Petitioner from demolishing a portion of wall on Section 881 of the NYS Real Property and Procedures Law its property that was within a few inches of Respondent's rear provides that: wall. Petitioner also sought to install a covering on the top of Respondent's roof deck, as required by DOB, to protect When an owner or lessee seeks to make improvements or it from an objects that might fall from Petitioner's property repairs to real property so situated that such improvements during the course of construction. or repairs cannot be made by the owner or lessee without entering the premises of an adjoining owner or his lessee, Respondent and Petitioner engaged in lengthy negotiations and permission so to enter has been refused, the owner or over a license agreement to allow Petitioner access to lessee seeking to make such improvements or repairs may Respondent's property. In fact, the negotiations were begun commence a special proceeding for a license so to enter by Petitioner's predecessor in interest. Respondent's architect pursuant to article four of the civil practice law and rules. The raised several objections to the manner in which the shoring petition and affidavits, if any, shall state the facts making such work was to be done, to the manner in which the roof deck entry necessary and the date or dates on which entry is sought. was to be protected and the lack of completeness or specificity Such license shall be granted by the court in an appropriate in the plans presented by Petitioner. case upon such terms as justice requires. The licensee *627 shall be liable to the adjoining owner or his lessee for actual Additionally, Respondent seeks reimbursement for his damages occurring as a result of the entry. architectural and legal fees incurred in reviewing Petitioner's proposals. The parties were unable to come to an [1] The construction of a new building is an improvement agreement and Petitioner *626 commenced this proceeding. of real property within the meaning of Section 881. Rosma Respondent cross-moved to dismiss the proceeding and for Development LLC v. South, 5 Misc.3d 1014(A), 2004 WL sanctions pursuant to Rule 130, arguing that he has not denied 2590558 (Sup.Ct. Kings Co.2004); Deutsche Bank Trust v. access but is simply insisting on reasonable protections and 120 Greenwich Development Associates, 7 Misc.3d 1006(A), conditions for such access. Respondent also argues that 2005 WL 782810 (Sup.Ct., N.Y. Co.2005). access is not needed because Petitioner could construct his building by setting the building back from the shared property [2] While Respondent has shown that access to the extent line. originally sought by Petitioner was not necessary in order

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 North 7-8 Investors, LLC v. Newgarden, 43 Misc.3d 623 (2014) 982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051 to construct its new building, Petitioner will still require [4] [5] The risks and costs involved in the use that a access to Respondent's property to finish that portion of the Petitioner makes of its neighbor's property should be wholly exterior east wall of the building which abuts the rear wall of borne by the Petitioner. Equity requires that the owner Respondent's garage. Access is deemed necessary even where compelled to grant access should not have to bear any the access is necessary because a building is constructed to the costs resulting from the access, including steps necessary to lot line of a property. Sunrise Jewish Center of Valley Stream safeguard their property. Inc. v. Lipko, 61 Misc.2d 673, 305 N.Y.S.2d 597 (Sup.Nassau, 1969). [6] In this case, as a result of the review and objections of Respondent's architect, Petitioner has revised its plans to While the Petition does fail to set forth the dates for which reduce both the impact on and risk to Respondent's property. access is sought as required by the language of RPAPL 881, Petitioner will no longer shore Respondent's garage or cover Petitioner has stated that it seeks access for approximately his roof deck. The intrusion is limited to his air space above one year. There is little purpose in dismissing the Petition on his deck. However, the license should include a requirement this ground and requiring Petitioner to bring a new petition that access to his deck from the second floor of the new when the Court can simply set the duration of the license in building be blocked and that the netting above the safety its Order. balcony be sufficient to prevent any tools and material from falling on to or damaging Respondent's building. [3] Section 881 provides that a license shall be granted “upon such terms as justice requires”. Such terms as justice Respondent seeks reimbursement for expenses he incurred requires extends to the nature and extent of access that is in retaining an architect to review Petitioner's plans, and necessary, the duration such access may be necessary, as in retaining an attorney to negotiate and draft a license well as what protections may be necessary to safeguard the agreement. He further seeks reimbursement for his attorney's adjoining owner's property. fees incurred in opposing this Petition.

The statute and case law provide that Petitioner is strictly In this case, the work Petitioner originally proposed was liable for any damage they may cause to Respondent's fairly intrusive and potentially damaging to Respondent's property. RPAPL 881; Sunrise Jewish Center of Valley home if not done correctly. This was not a case where the Stream Inc. v. Lipko, 61 Misc.2d 673, 305 N.Y.S.2d 597 Petitioner merely sought to place a sidewalk shed in front of (Sup.Ct., Nassau, 1969); MK Realty Holding LLC v. Scneider, Respondent's property. The original plan called for Petitioner **709 39 Misc.3d 1209(A), 2013 WL 1482745 (Sup.Ct., to shore the rear wall of Respondent's garage, after the south Queens, 2013). Nonetheless, the court is not limited to wall of the garage had already been damaged. requiring bonds and insurance to ensure that Petitioner will able to compensate Respondent for any damage. Justice also As a result of that damage DOB had issued a partial stop requires that the terms of the license provide for safeguards work order and ordered Petitioner to shore the rear wall of to prevent damage from occurring, particularly where a Respondent's garage as a condition of allowing it to demolish Respondent is compelled to grant access to his home. 537 a wall on its lot that was within 2–4 inches from Respondent's West 27th St. Owners LLC v. Mariners Gate LLC, 2009 N.Y. rear garage wall. Petitioner's shoring plan submitted with its Slip Op. 32360(U), 2009 WL 3400277 (Sup.N.Y.). Petition called for shoring the entire length of the ceiling of the garage next to the rear wall with a series of six jacks, under *628 In this regard, it must be remembered that Section 881 a cap plate and mounted on a floor plate. compels a property owner to grant access for the benefit of another. The Respondent to an 881 petition has not sought *629 This work would have required vacating the garage for out the intrusion and does not derive any benefit from it. The approximately 3 to 4 months and removing the cars and other Court must be mindful of the fact that it is called upon to grant items housed in the garage. access after the parties have failed to reach an agreement, and must not allow either party to overreach and use the Court to Respondent's architect objected to the shoring plan on two avoid negotiating in good faith. grounds. First, that the plans call for placing the shoring directly over the fill line and vent line of an underground oil tank. Second, that Petitioner's architects misidentified ceiling

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 North 7-8 Investors, LLC v. Newgarden, 43 Misc.3d 623 (2014) 982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051 beams as concrete when they are steel and ignored the fact Based on that objection Petitioner agreed to a erect a fence a that the last steel beam overlaps the plane of the door. He top of the parapet of Respondent's rear wall that would block testified that the proper way to shore the **710 garage wall access from the second floor of the new building. The fence was to install needle beams to support the end beam and take would run from the second floor to the safety balcony and the load off the wall. Additionally, the use of needle beams would be secured to the new building rather than the rear wall would eliminate the need to vacate the garage. of Respondent's garage.

During the hearing, Petitioner agreed to modify its plans and [7] It is clear that Respondent's architect raised many use needle beams to shore the rear wall. After the hearing valid objections to Petitioner's plans especially to specific Petitioner informed the Court that DOB had agreed to allow means and methods of construction and that his objections it to remove the wall on its property that was adjacent to resulted in changes to the plans. It is equally clear that these Respondent's rear garage wall without shoring the garage involved technical considerations beyond the knowledge of wall. Therefore, Petitioner was no longer seeking access to the average person and Respondent needed to retain an design Respondent's garage to shore the rear garage wall. professional to review Petitioner's plan. A property owner compelled to grant a license should not be put in a position The plans submitted with the Petition also called for installing of either having to incur the costs of an design professional a protective covering of styrofoam and plywood on top of to ensure Petitioner's work will not endanger his property, Respondent's roof deck to protect the deck from any falling or having to grant access without being able to conduct a material while the facade of the east wall of Petitioner's new meaningful review of Petitioner's plans. building was being completed and waterproofed. Workers would also have used the protected roof deck to access Justice in this case requires that Petitioner pay the scaffolding hanging off the east wall of the new building Respondent's architects reasonable fees incurred in reviewing as the exterior was being finished. Respondent's architect Petitioner's plans and making counter proposals, **711 as objected that the roof protection plan submitted was a generic well as ongoing monitoring of the work during the term of plan that did not show the actual dimensions or reflect the the license. conditions of the site. He stated the plan made no provision for drainage or security, that it would have necessitated removing [8] Respondent also seeks legal fees he incurred in drafting, the furniture, planters and fence existing on the roof deck, and reviewing and revising a proposed license agreement and would have prevented Respondent from using his deck for in opposing this Petition. The general rule is that absent a over a year. statute authorizing an award of attorneys' fees, each side in a litigation must bear the cost of their own attorneys. Subsequent to the hearing, Petitioner informed the Court that it was proposing and new roof protection plan that did [9] Attorneys' fees and disbursements are considered not involve covering the roof deck. Petitioner now plans to incidents of litigation and the prevailing party may not construct a temporary safety balcony from the third story of collect them from the loser unless an award is authorized the new building that would project 6 feet into Respondents by agreement between the parties, or by statute or court rule air space. The balcony would consist of a wood planks on top Matter of AG Ship Maintenance Corp. v. Lezak, 68 N.Y.2d of a steel deck resting on cantilevered steel beams. The plan 607, 506 N.Y.S.2d 1032, 498 N.E.2d 433 (1986); Mighty also calls for a 4 foot railing at the end of the platform and a net Midgets v. Centennial Ins. Co., 47 N.Y.2d 12, 21–22, 416 that would extend from the railing to the upper floors of the N.Y.S.2d 559, 389 N.E.2d 1080 (1979). building, to *630 protect against falling material. Workers would to complete the finishing work on the exterior of The rule is based upon the high priority accorded free the building from a scaffold attached to Petitioner's building access to the courts and a desire to avoid placing barriers which they would access from the safety balcony rather than in the way of those desiring judicial redress of wrongs. The from Respondent's roof deck. preferred remedy *631 for deterring malicious or vexatious litigation has been the use of separate, plenary actions after the At the last Court date, Respondent's architect raised the challenged proceedings have concluded. Matter of AG Ship objection that the new plan did not prevent access to Maintenance, supra. Respondent's deck from the second floor of the new building.

Respondent states that Petitioner promised to reimburse him **712 *632 In a normal commercial setting, where a for his architectural and attorneys fees. The draft of the license agreement can not be reached, there is no license. proposed agreement included language that the Petitioner Where a license pursuant to RPAPL 881 is sought, the license would pay Respondent's reasonable attorneys' fees incurred can be compelled even though no agreement is reached, and in to date, and incurred in the future, in connection with that situation, the terms of the license are set in the discretion enforcing the agreement and monitoring the work done under of the Court. the license. However, the draft was never executed, and Petitioner states that the parties never came to an agreement A petition pursuant to RPAPL 881 has certain similarities to on attorneys' fees. an eminent domain proceeding. A taking by eminent domain is in effect a forced sale, and a license pursuant to RPAPL 881 The only case to directly address the issue of awarding is in essence a forced granting of a temporary easement. Even attorneys fees in connection with an 881 petition is an though the primary beneficiary of both a taking by eminent unreported decision in 10 East End Owners, Inc. v. Two East domain and a license pursuant to RPAPL 881 may be a private End Ave Apt Corp., 35 Misc.3d 1215(A), 2012 WL 1414942 party, the rationale for the forced sale or forced temporary (Sup.Ct., N.Y.2012) which held that attorneys fees are not easement, is the benefit to the public. recoverable. It is not clear from the decision whether the attorneys fees sought were litigation related, or for drafting or In an eminent domain proceeding, the Court is authorized review of a licensing agreement. to award the property owner attorney fees where the award exceeds the condemning authority's offer and the Court The decision in 10 East End Owners Inc., is not controlling deems the award of attorney fees necessary to achieve just on this Court and this Court declines to follow it. compensation. Eminent Domain Proceedings Law, Sec. 701 The purpose of this section is to ensure that the owner receives [10] RPAPL 881 authorizes that Court to grant the license the full value of the property that has been taken from them. on such terms as justice requires. This language is broad and allows for the flexibility and full scope upon which Similarly, since an 881 Petition by the term of the statute is equity depends. It is sufficient statutory authority to award brought after the parties have failed to reach an agreement, reasonable attorney fees as a condition of a license, where the attorneys' fees incurred in opposing a petition or in enforcing circumstances warrant it. the terms of a license granted pursuant to an 881 petition should be recoverable as a condition of the license. Respondent's request for attorneys' fees, both for negotiating a proposed license agreement, and for opposing the this [12] [13] The inclusion of attorneys' fees are not petition, is not based on being the prevailing party in this necessarily warranted in all 881 situations. In deciding action. The attorneys' fees are sought as a condition of license whether justice requires attorneys' fees, either for negotiating rather than as an incident of litigation. a agreement or in opposing a petition pursuant to RPAPL 881, the court must balance the equities. The Court should Respondent's opposition to the Petition was that he has not consider the extent to which the access sought interferes with refused Petitioner access, but that Petitioner had refused the owners use and enjoyment of the property, the risks it to agree to reasonable terms for the license, to protect poses to the property, as well as the complexities which the Respondent's property and to reimburse him for costs he access sought presents in drafting a license agreement. Also, would in incur because of the license. The attorneys' fees any attorneys' fees included as a condition of a license should incurred in opposing the petition in this case are not an be proportional to the size and scope of the project. incident of litigation but a continuation of the process of negotiating a license agreement. Attorneys' fees are justified in this case because Petitioner's demand to make use of Respondent's property has required [11] Somewhat counter-intuitively, if a respondent is Respondent to hire an attorney to negotiate a license successful in opposing an 881 Petition and no license is agreement. granted then that respondent would not be entitled to attorneys fees for successfully opposing the petition The situation in this case was very complex in that it involved not simply accessing Respondent's property in order to work

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 7 North 7-8 Investors, LLC v. Newgarden, 43 Misc.3d 623 (2014) 982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051 on Petitioners property, but also to do work on Respondent's statute that a license shall be granted “upon *634 such terms property, *633 specifically to shore Respondents garage, as justice requires” does not warrant imposition of a license install a plywood covering over Respondent's deck, and fee. Id at *3. The Court reasoned that the statute provided for install an extension on Respondent's chimney. damages but limited them to actual damages occurring as a result of the entry. Id at *3. The original work requested by Petitioner raised detailed questions of how that work on Respondent's property was However, this analysis ignores the fact the recovery for actual to be performed and his property protected. It also involved damages and a license fee compensate two entirely different terms for the removal, storage and restoration of property in things. Unlike damages, a license fee compensates the owner the garage and on the deck. The license agreement in this for the use the Petitioner makes of their property and their case had to be detailed and comprehensive and could not have temporary loss of enjoyment of a portion of their property. be adequately drafted by the average person. The licensing agreement involved extensive negotiations, including several Further, the Court in 10 East End Owners, distinguished exchanges of proposed drafts with Petitioner's counsel. the decision in the Matter of Rosma, on the grounds that in Rosma involved a “voluntary project by a developer erecting Respondent has demonstrated that he would not voluntarily a new structure”, while in the case before it the petitioner enter into a license agreement that did not provide for was seeking access because it was required, by NYC Local payment of both architects and attorney fees incurred in Law 11 of 1998, to undertake the repairs which necessitated reviewing and drafting the terms of the agreement. While the access. Id. The present case involves a voluntary project by a statute may compel him to grant access for the benefit of developer to build a new building, and thus is distinguishable another, justice requires that he **713 not be compelled to from the facts in 10 East End Owners. incur costs to protect his property from such access. While the access is necessary to enable Petitioner to complete his In Ponito, the court awarded a $1,500 monthly fee as a improvement, it is not necessary that Petitioner obtain the condition of a license to maintain a sidewalk shed which access without cost, particularly for a project of this size extended 20 feet in front of an adjoining property. In Matter where such fees would not constitute a hardship. of Rosma, the Court awarded a $2,500 monthly fee as a condition of a license for the limited purpose of erecting [14] Other conditions the Court may impose include, posting sidewalk bridging, abutting approximately ten feet onto the a bond, obtaining insurance coverage, agreeing to indemnify sidewalk in front of respondents' real property. In MK Realty the adjacent landowner and paying for the use of the license. Holding LLC, the court awarded a $1,000 fee as a condition of Ponito Residence LLC v. 12th Street Apartment Corp, 38 a 15 day license to erect a scaffold on an adjoining property. Misc.3d 604, 959 N.Y.S.2d 376 (Sup.N.Y.,2012) Deutsche Bank Trust v. 120 Greenwich Development Associates, 7 In the present case, the activities pursuant to the license will Misc.3d 1006(A), 2005 WL 782810 (Sup.N.Y.,2005). be more intrusive then a sidewalk shed or scaffold. Here Respondent will have a cantilevered balcony protrude 6 feet Courts have awarded license fees as a condition of a into his airspace, approximately 6 feet above his roof deck, license pursuant to RPAPL 881, see Ponito Residence for a year. While this is far less intrusive than Petitioner's LLC v. 12th Street Apartment Corp, 38 Misc.3d 604, original plans, it will seriously impact on Respondent's use 959 N.Y.S.2d 376 (Sup.N.Y.,2012); Matter of Rosma and enjoyment of his roof deck. Respondent has no backyard Development LLC v. South, 5 Misc.3d 1014(A), 2004 WL and the deck is his only outdoor recreational space. In light of 2590558, unreported decision (Sup.Kings 2004); MK Realty all the **714 circumstances a license fee of $3,500 a month Holding LLC v. Scneider, 39 Misc.3d 1209(A), 2013 WL is just and equitable. 1482745 (Sup.Queens, 2013). Lastly, Petitioner seeks access to the roof of the main One unreported decision has held that RPAPL 881 does not portion of Respondent's building to erect an extension to authorize the imposition of a fee as a condition of a license. 10 Respondent's chimney, which is Petitioner's obligation under East End Owners Inc. v. Two East End Ave Apartment Corp., the building code. The parties have been unable to reach 35 Misc.3d 1215(A) 951 N.Y.S.2d 2 84 (Sup.N.Y.2012). The an agreement as to the material to be used to construct the court in 10 East End Owners, held that the language in the extension. However, the construction of a chimney extension

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 8 North 7-8 Investors, LLC v. Newgarden, 43 Misc.3d 623 (2014) 982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051 goes beyond temporary access *635 and constitutes a the safety balcony so as to block access from the second permanent encroachment which is beyond the scope of story of the new building to Respondent's garage roof deck. RPAPL 881. Broadway Enterprises Inc. v. Lum, 16 A.D.3d Petitioner shall place the fence on the parapet of the west wall 413, 790 N.Y.S.2d 402 (2nd Dept.2005), McLennon v. of Respondent's garage but shall not attach it to the garage 31 Service Corp., 9 Misc.3d 1109(A), 806 N.Y.S.2d 446 wall. Petitioner shall attach the fence to its building. (Sup.Kings, 2005); Foceri v. Fazio, 61 Misc.2d 606, 306 N.Y.S.2d 1016 (Sup.Queens, 1969). Therefore, that portion *636 7) Petitioner shall not remove or alter Respondent's of the Petition which seeks access to the roof of the main wooden fence, which currently encloses his roof deck. portion of Respondent's building must be denied. 8) Petitioner shall attach netting to the rail of the safety Lastly, as Petitioner has demonstrated that access to balcony as shown on the drawing marked as Court exhibit Respondent's property is necessary to complete its building, I, and shall ensure such netting is of sufficient strength even though not as much access as originally requested, and design to prevent tools and material from falling onto the Petition was not frivolous, therefore Respondent's cross Respondent's property. motion for sanctions should be denied. 9) Petitioner shall procure insurance, in the amount of WHEREFORE, the Petition is granted to the extent indicated $5,000,000, covering MARK **715 A NEWGARDEN by above, and Respondent's cross-motion is denied and it is name, and listing 18 Havemeyer Street including the garage hereby, as part of the covered worksite, for any liability Respondent may incur for property damage, personal injury, or wrongful ORDERED that Petitioner is awarded a license to enter on death, including any liability under New York State Labor Respondent's property upon the upon the following terms and Law, as a result of Petitioner's work, whether or not caused conditions: by the negligence of Petitioner or its employees, agents contractors or subcontractors and providing Respondent first 1) The license is awarded to NORTH 7–8 INVESTORS, LLC party benefits to cover any damage to his property, including only and shall be for a term of one year. damage caused by earth movement. Petitioner shall maintain this insurance for the duration of this license. 2) The Petitioner is granted access to the air space over Respondent's garage only, except that Petitioner is authorized 10) Petitioner shall indemnify and hold Respondent harmless to place a wooden fence on the parapet of the west wall of to the fullest extent permitted by law for any liability, claims, Respondents garage as described below. damages or losses, including attorneys' fees he may incur as a result of Petitioners work, whether or not caused by the 3) Petitioner is not granted access to perform any negligence of Petitioner or its employees, agents contractors underpinning under Respondent's garage. or subcontractors.

4) Petitioner's, workmen and contractors are allowed access 11) Petitioner shall immediately report, in writing, to to Respondent's airspace only from Monday through Fridays, Respondent any damage to Respondent's property caused by between the hours of 8:30 am to 5 p.m. Petitioner's work.

5) Petitioner shall construct a temporary safety balcony 12) Petitioner shall cure any violation placed against from the third story of the building it is constructing Respondents property by an governmental or administrative that is cantilevered to extend no more than 6 feet into agency as a result of Petitioner's work. Petitioner shall Respondent's airspace above Respondent's garage roof deck reimburse Respondent for any fines or penalties imposed as and which conforms to the drawing entitled “Overhanging a result of such violations. Work/Protection” by ADGI, September 13 2013, which was marked as Court exhibit I at the hearing on January 24, 2014. 13) Petitioner shall take all steps necessary to remove any mechanics lien, or other encumbrance against Respondent's 6) Petitioner shall construct a wood fence that will extend property arising from Petitioner's work or use of Respondent's from the second floor of the new building to the bottom of airspace.

14) Petitioner shall pay Respondent a license of $3,500 a 18) Petitioner shall remove the safety balcony and any other month by the 5th day of each month for the twelve months projections from Respondent's airspace by the end of the term of this license. of this license.

15) Petitioner shall reimburse Respondent for the reasonable 19) The term of this license shall commence 15 days after architectural or design professional fees he has incurred to Petitioner has provided to Respondent a copy of the insurance date and may incur in the future in reviewing and monitoring policy and the undertaking described above; and it is further, Petitioner's plans and ongoing work. ORDERED, that any disputes as to the amount of architects' *637 16) Petitioner shall reimburse Respondent for the or attorneys' fees to which Respondent may be entitled, shall reasonable attorneys fees he has incurred to date in reviewing, be submitted to this Court, and either party may move this drafting and attempting to negotiate a license agreement and Court to determine the reasonable amount of architects' or that he incurs in the future in enforcing the terms of this attorneys' fees incurred, and it is further license. ORDERED, that this Court retains jurisdiction over this 17) Petitioner shall give an undertaking in the amount of $2 matter to resolve any disputes over the interpretation, million dollars to secure payment by Petitioner of any damage implementation or enforcement of this license. to Respondent's property, to secure payment by Petitioner of the license, architectural and attorneys' fees, required by this **716 This constitutes the decision and order of this court. order as a condition of the license, and to secure payment by Petitioner to indemnify Respondent for any liability, claims, Parallel Citations damages or losses, including attorneys fees, that Respondent incurs as a result of Petitioner's work. 43 Misc.3d 623, 982 N.Y.S.2d 704, 2014 N.Y. Slip Op. 24051

2014 WL 3977720 (N.Y.Sup.) (Trial Order) Supreme Court, New York. Part 13 New York County

PINTO RESIDENCE LLC, Plaintiff, v. 12th STREET APARTMENT CORP., Defendant.

No. 156217/2014. August 11, 2014.

Trial Order

Manuel J. Mendez, Judge.

*1 The following papers, numbered 1 to 4 were read on this Order to Show Cause.

PAPERS NUMBERED

Notice of Motion/ Order to Show Cause - Affidavits - Exhibits … 1 - 3

Answering Affidavits - Exhibits ______4

Replying Affidavits ______

Cross-Motion: Yes X No

Upon a reading of the foregoing cited papers, it is Ordered that this motion by Order to Show Cause is granted to the extent stated herein.

Plaintiff is the owned of 19 West 12th Street, New York, New York (herein “Premises”) and defendant owns the building adjacent to the Premises located at 3 West 12th Street, New York, New York (herein “Co-op”). In 2010 pursuant to a New York City Department of Buildings (herein “DOB”) work permit, defendant installed a 127-foot sidewalk bridge (herein “Scaffold”) that encroached upon plaintiff's property by approximately 20 feet.

Plaintiff commenced an action - Index No. 111540/2011 - (herein “Prior Action”) seeking removal of the Scaffold. In a Decision and Order dated October 23, 2012 the court granted defendant a license pursuant to RPAPL 881 on the condition that (1) defendant is entitled to said license for a period of 5 months commencing at the entry of that decision and order and subject to an extension on notice to plaintiff and upon submission to the court of proof regarding the need for such extension; (2) that defendant shall pay the sum of $1,500 per month to plaintiff for said license, which by an Order dated March 28, 2013 was increased to the sum of $1,750 monthly; (3) defendant must name plaintiff as an additional insured on its policy of insurance, and in the event plaintiff deems the amount of coverage to be insufficient, it could apply to the court for an increase in such amount; and (4) that defendant shall be liable to plaintiff for any damages that may occur as a result of granting the within license. The Scaffold was removed in September of 2013.

Defendant sent plaintiff a letter dated May 28, 2014 seeking permission to install another sidewalk bridge for subsequent work on the Co-op's facade at the direction of the DOB. Defendant installed said sidewalk bridge in June of 2014 before obtaining permission from plaintiff. In a letter dated June 18, 2014, plaintiff sent a proposed License Agreement, which defendant did not execute. Defendant subsequently sent two proposed Insurance Certificates adding plaintiff and defendant onto the Co-op's contractors' insurance policy. Plaintiff rejected the proposed Insurance Certificates and insisted on being added to defendant's Insurance Certificate.

*2 Plaintiff commenced an action on June 26, 2014 and now moves by Order to Show Cause seeking an order requiring the immediate removal of that portion of the sidewalk bride erected by defendant encroaching on plaintiff's property. Plaintiff seeks an injunction mandating the removal of the sidewalk bridge pursuant to Real Property Actions and Proceedings Law § 871(1) which states, in part, that “an action may be maintained by the owner of any legal estate in land for an injunction directing the removal of a structure encroaching on such land.”

CPLR § 6301 grants this court the power to issue an order directing the defendant to perform an act for the benefit of plaintiff, or to refrain from performing an act which would be injurious to the plaintiff. A preliminary injunction may be granted under CPLR article 63 when the party seeking such relief demonstrates (1) a likelihood of success on the merits; (2) the prospect of irreparable injury and (3) a balance of equities tipping in the moving party's favor (Doe v. Axelrod, 73 N.Y. 2d 748, 532 N.E.2d 1272, 536 N.Y.S.2d 44 [1988]).

RPAPL § 871(1) allows for an injunction compelling the defendant to remove the sidewalk bridge allegedly encroaching on plaintiff's real property. “In order to obtain the injunctive relief they sought, however, the defendants were required to demonstrate not only the existence of the encroachment, but that the benefit to be gained by compelling its removal would outweigh the harm that would result to the plaintiff from granting such relief” (Broser v. Schubach, 85 A.D.3d 957, 925 N.Y.S.2d 875 [2nd Dept., 2011] citing to, RPAPL 871; Marsh v. Hogan, 81 AD3d 1241, 1242, 919 NYS2d 536 [2011]; Town of Fishkill v. Turner, 60 AD3d 932, 933, 876 NYS2d 92 [2nd Dept., 2009]).

Plaintiff annexes the Decision and Order from the prior action in support of its motion by Order to Show Cause in which the court denied plaintiff injunctive relief and converted the action for a preliminary injunction into a proceeding granting defendant a license. RPAPL § 881 allows property owners or lessees seeking to make improvements or repairs to real property and said improvements cannot be made without entering onto adjoining real property to commence a special proceeding for a license to so enter the property if permission to so enter the adjoining property has been refused. “In determining whether or not to grant a license pursuant to Real Property Actions and Proceedings Law § 881, courts generally apply a standard of reasonableness,” (Matter of Board of Mgrs. of Artisan Lofts Condominium v. Moskowitz, 114 A.D.3d 491, 492, 979 N.Y.S.2d 811 [1st Dept., 2014]) requiring the courts to “balance the interests of the parties and should issue a license when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license is refused” (Id. citing to Chase Manhattan Bank [Natl. Assn.] v. Broadway, Whitney Co., 57 Misc 2d 1091, 1095, 294 N.Y.S.2d 416 [Sup Ct, Queens County 1968).

*3 Here plaintiff asserts that when the Scaffold was previously erected plaintiff's garden was destroyed. Plaintiff subsequently repaired the garden and argues that the new side walk bridge “apparently will be destroyed by Defendant's actions.” Defendant argues that pursuant to Local Law 11, it performed extensive facade repair work. Upon inspection by the DOB, defendant was required to undertake additional work and “the City regulations require that the sidewalk bridge be erected in this place and manner,” and “stay erected until the [DOB] evaluates the work and authorizes the [side walk bridge's] removal.”

Plaintiff fails to show it will suffer imminent and irreparable harm and that the balance of equities favors injunctive relief.

Accordingly, it is ORDERED that this Motion by Order to Show Cause is granted only to the extent requiring defendant to add plaintiff as an additional insured under the Co-op's insurance policy within 7 days from service of a copy of this Order with Notice of Entry upon the defendant, and it is further,

ORDERED, that failure by the defendant to timely add plaintiff to the Co-op's insurance policy as so ordered in this Decision and Order shall result in an Order from this Court to removed the sidewalk bridge, and it is further,

ORDERED, that defendant is directed to pay plaintiff a monthly license fee of $1,750 per month until the work under the license is completed, and it is further,

ORDERED, that defendant shall make the monthly license payment to plaintiff for the months of June, July, and August of 2014, no later than August 29, 2014.

Dated: August 7, 2014

ENTER:

MANUEL J. MENDEZ

J.S.C.

permission to so enter has been sought by the property owners and refused by the adjoining property owners, and KeyCite Yellow Flag - Negative Treatment the property owners' real property is “so situated that such Distinguished by 10 East End Ave. Owners, Inc. v. Two East End Ave. improvements or repairs cannot be made by the [property] Apartment Corp., N.Y.Sup., April 23, 2012 owner[s] ... without entering the premises of [the] adjoining 5 Misc.3d 1014(A) [property] owner [s].” The petition and affidavits must state Unreported Disposition the facts making such entry necessary and the dates on which (The decision of the Court is referenced entry is sought. in a table in the New York Supplement.) Supreme Court, Kings County, New York. Here, petitioners have submitted their order to show cause, a petition, and the accompanying affidavit of their vice- In the matter of the Application of ROSMA president, Moshe Junger. In their instant petition and motion, DEVELOPMENT, LLC, et ano ., Petitioners, petitioners explain that in order to comply with the New v. York City Building Code and the requirements of the project Kenneth SOUTH, et al.,, Respondents. engineer and architect, they must erect sidewalk bridging that will abut approximately ten feet onto the sidewalk in No. 23044/04. | Oct. 19, 2004. front of respondents' properties, and certain protection on the roofs of respondents' premises. The sidewalk bridging Opinion is required to protect pedestrians on the street below the construction area, and the roof protection is necessary to DAVID I. SCHMIDT, J. protect respondents' structures from debris. Petitioners assert *1 Upon the foregoing papers in this special proceeding that despite various requests made by them to respondents to pursuant to RPAPL 881, petitioners Rosma Development, permit them access to erect the required sidewalk bridging LLC and Deluxe Development, Inc. (petitioners) move, by and roof protection, respondents have refused to allow them order to show cause, for an order granting them a license such access. They contend that they, therefore, need judicial to enter upon portions of premises owned by respondent relief to obtain a license, pursuant to RPAPL 881, to enter Kenneth South and respondents Johnnie B. Harris, Jr. and upon respondents' real property in order to enable them to take Betty Willis (collectively, respondents) to erect certain these necessary measures. Petitioners further support their sidewalk bridging and roof protection. request with a copy of the architectural plans for the required work, together with a certificate of insurance, which indicates Petitioners are the developers of certain real property, which that they have obtained substantial insurance coverage that is located at 258, 260, 262, and 264 Skillman Street, in names respondents as additional insureds. Brooklyn, New York. Claim Lax, a principal of petitioners, purchased this property on February 19, 2003 as vacant *2 In addressing petitioners' instant motion, the court notes land. Respondent Kenneth South owns a four-story building, that RPAPL 881 provides that such a license “shall be granted located at 256 Skillman Street, and respondents Johnnie B. by the court in an appropriate case upon such terms as justice Harris, Jr. and Betty Willis own a four-story building located requires.” Respondents, in opposition to petitioners' motion, at 266 Skillman Street. Respondents' property directly abuts argue that this is not an appropriate case for the granting of petitioners' property. In early 2004, petitioners filed plans a license. Specifically, respondents contend that RPAPL 881 with the New York City Department of Buildings (the DOB) applies only to “improvements or repairs” to real property and to erect an eight-story building on their land, and the DOB that the new construction of the eight-story building does not subsequently issued the necessary permits to allow such constitute an improvement or repair within the meaning of construction to proceed. this statute.

In July 2004, petitioners brought this special proceeding Respondents' contention is without merit. In construing the pursuant to RPAPL 881. RPAPL 881 allows property owners meaning of the term “improvement,” the court notes that who seek “to make improvements or repairs to real property” “[w]ords of ordinary import used in a statute are to be given to bring such a proceeding in order to obtain a license to their usual and commonly understood meaning” (McKinney's enter upon the premises of adjoining property owners where Consolidated Laws of NY, Book 1, Statutes § 232).

Additionally, “[d]ictionary definitions may be useful as guide posts in determining the sense with which a word was used *3 In determining the issue of whether to grant petitioners in a statute” (McKinney's Consolidated Laws of NY, Book 1, a license pursuant to RPAPL 881, the court must apply a Statutes § 234). “standard of reasonableness” (Mindel v. Phoenix Owners Corp., 210 A.D.2d 167, 167 [1994] ). RPAPL 881 is Black's Law Dictionary (8th ed 2004) defines “improvement” “a codification of well-settled principles of jurisprudence as “[a]n addition to real property, whether permanent or not; expounded by [New York] courts ... dealing with conflicting esp., one that increases its value or utility or that enhances interests of adjacent property owners” (Chase Manhattan its appearance.” It cannot be disputed that a building meets Bank [Nat. Assn.] v. Broadway, Whitney Co., 57 Misc.2d this definition as it is an addition to the vacant real property 1091, 1096 [1968], affd 24 N.Y.2d 927 [1969] ). which increases its value. Moreover, the Court of Appeals has defined “improvements” to include “buildings and other The court must balance the competing interests of the parties articles and structures ... erected upon ... the land” (Matter of and should grant the issuance of a license when necessary, Consolidated Edison Co. of New York v City of New York, 44 under reasonable conditions, and where the inconvenience to N.Y.2d 536, 541 [1978]; see also Matter of Marton v. Town the adjacent property owners is outweighed by the hardship of Bd. of Town of Tuscarora, Steuben County, 115 Misc.2d 174, their neighbors if the license is refused (see Chase Manhattan 175 [1982] ). Bank [Nat. Assn.], 57 Misc.2d at 1095). The court finds that petitioners have satisfied the statutory prerequisites of Thus, the erection of an eight-story building plainly falls showing necessity and neither the period of time requested within the purview of RPAPL 881. Indeed, licenses pursuant nor the size of the area involved appears unreasonable (see to RPAPL 881 have been granted to enter upon the adjoining id. at 1097). Respondents claim, however, that they will be neighbor's property in the context of both the development greatly inconvenienced if the license is granted. of a residential multiple dwelling consisting of three attached buildings, and the building of a residential house on a Respondents Johnnie B. Harris, Jr. and Betty Willis assert that vacant lot (see Mellon, Judicial Relief Little–Used Law Helps the granting of such a license to petitioners would interfere Developers Held Hostage, NYLJ, Aug. 14, 2002, at 5, col 2) with their own plans for construction inside and outside of their home, and that they cannot obtain a home improvement Respondents also argue that their permission should have loan, an equity loan, or refinancing if scaffolding is attached been requested by petitioners before they began construction to their property. They also assert that Betty Harris is a college and should have been part of the application process student and that she may have to stop college if they cannot before the DOB. The fact that no request was made by complete their own construction plans. Respondents further petitioners prior to beginning construction, however, is state that the value of their properties will decrease if an eight- without significance since there is no such requirement under story structure is built adjacent to their properties. In addition, RPAPL 881, which merely requires that permission to enter they assert that their sunlight and fresh air will be affected by the adjoining land has been refused (see Sunrise Jewish Ctr. this building. of Valley Stream v. Lipko, 61 Misc.2d 673, 675 [1969] ). These assertions by respondents, however, are not a basis Respondents further argue that the license should be denied for denial of the petition (see Chase Manhattan Bank [Nat because petitioners created the problem by intentionally Assn.], 57 Misc.2d at 1096). As stated above, petitioners choosing to build an eight-story dwelling between two four- have been issued lawful permits to complete such projects story dwellings, and that petitioners should have known that by the DOB and respondents cannot derail such “as of right” this would interfere with the adjacent homeowners. Such development by withholding their permission to access their argument is rejected. Petitioners were within their lawful property. Petitioners' development plans may not be impeded rights in electing to build the construction project upon or interfered with by adjoining property owners' resistance to the property. As noted above, petitioners obtained building development. To allow otherwise would spell doom to the permits from the DOB, legally permitting them to do so. development process. Thus, “the fact that petitioner[s] created the problem ... has no bearing” on the right to the license (see Sunrise Jewish Ctr. Respondents Johnnie B. Harris, Jr. and Betty Willis further of Valley Stream, 61 Misc.2d at 675). assert that they cannot use their backyard due to petitioners'

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Rosma Development, LLC v. South, 5 Misc.3d 1014(A) (2004) 798 N.Y.S.2d 713, 2004 N.Y. Slip Op. 51369(U) digging without reinforcing the ground, causing soil to slide. property interests and would not subject respondents to They state that petitioners have also interfered with their great inconvenience or loss (see id. at 1095). Furthermore, access to the fire escape and have prevented their access to respondents' inconvenience will be only temporary, whereas their chimney. These respondents point to violations issued petitioners' hardship, if a license were denied, would be by the DOB and have annexed copies of these violations. permanent (see id. at 1097).

The violation issued by the DOB with respect to mortar In addition, “[w]hat is ‘an appropriate case’ for granting ... a dropping onto the front walkway, front stairs, and rear license [under RPAPL 881] involves ... not only the interests yard states that petitioners should be required to “provide of the parties but the public interest as well” (Sunrise Jewish protection” to safeguard the public and property affected by Ctr. of Valley Stream, 61 Misc.2d at 676). Here, the granting the construction operations. There is also a violation noting of a license to petitioners will not only achieve the purpose a failure to provide protection at sides of excavation and of the statute, but will further the public interest in the directing that protections of sheeting and bracing be provided. development of land and the providing of housing (see id.). It appears that the granting of the requested license will actually help achieve such protection and that the risk of any Therefore, the court concludes that petitioners should be mishaps will be diminished if the protective devices proposed entitled to exercise their statutory right to gain the necessary and now sought by petitioners are adopted (see Mindel, 210 access in order to proceed with the construction project A.D.2d at 167; Sunrise Jewish Ctr. of Valley Stream, 61 without unreasonable interference (see Matter of Massa v. Misc.2d at 675). City of Kingston, 235 A.D.2d 947, 949 [1997] ). Respondents may not be permitted to frustrate petitioners' plans to develop *4 Moreover, if the alleged problems persist or in the their land when, in the balancing of the interests involved, the event further problems do eventuate, respondents will have inconvenience and any resultant damages to respondents can their remedies in damages (see Sunrise Jewish Ctr. of be remedied (see Sunrise Jewish Ctr. of Valley Stream, 61 Valley Stream, 61 Misc.2d at 676). RPAPL 881 affords Misc.2d at 676). Thus, the granting of petitioners' motion and the adjoining property owners adequate legal rights and petition for a license pursuant to RPAPL 881 is warranted. remedies by subjecting the licensee to full liability “for actual damages occurring as a result of the entry.” For such actual *5 Since, however, the court is mindful of the resultant damages occurring as a result of the entry, respondents have inconvenience to respondents, it finds that respondents should a cause of action against petitioners under the statute, and, receive compensation for petitioners' utilization of their to insure payment of such damages, the court can require property during the time period of the license in a fair the maintenance of adequate insurance by petitioners (see and equitable sum as set forth below. Additionally (as Sunrise Jewish Ctr. of Valley Stream, 61 Misc.2d at 676). hereinbelow stated), respondents shall have the remedy of Petitioners have expressed that they are prepared to do all damages, and other terms and conditions, including the that is feasible to avoid damages resulting from their entry maintenance of substantial insurance coverage, must be upon respondents' properties (see Mindel, 210 A.D.2d at 167), imposed (see RPAPL 881; Sunrise Jewish Ctr. of Valley and, as noted above, petitioners have submitted proof of Steam, 61 Misc.2d at 676–677). substantial insurance coverage. Accordingly, petitioners are hereby granted a license, The court finds that the inconvenience to respondents will pursuant to RPAPL 881, to enter upon a portion of not be as substantial as, and is outweighed by the hardship respondents' land for the limited purpose of erecting sidewalk to petitioners, in being denied their lawful right to build bridging, which will abut approximately ten feet onto the upon their land, if the requested license is denied (see sidewalk in front of respondents' real property, and certain Chase Manhattan Bank [Nat. Assn.], 57 Misc.2d at 1097). protection on the roofs of respondents' property, pursuant Petitioners, as the owners of the real estate development to the copies of the proposed bridge plans and roof plans projects, have a property interest therein, and have an as set forth in the petition. The granting of such license is interest in completing such projects as quickly as possible subject to the following terms and conditions: (1) petitioners and in avoiding unnecessary delay and expense to the shall be entitled to such license for a period of 12 months, construction process. The granting of a license to petitioners, commencing upon the entry of this order and judgment, pursuant to RPAPL 881, is necessary to preserve petitioners' (2) petitioners are directed to pay the sum of $2,500 per

© 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 Rosma Development, LLC v. South, 5 Misc.3d 1014(A) (2004) 798 N.Y.S.2d 713, 2004 N.Y. Slip Op. 51369(U) month to respondent Kenneth South, and the same sum to (7) petitioners shall be held liable to respondents for any respondents Johnnie Harris, Jr. and Betty Willis, jointly, until damages which they may suffer as a result of the granting of the work under the license is completed, (3) petitioners shall this license and all damaged property shall be repaired at the not unreasonably interfere with respondents' necessary access sole expense of petitioners. A hearing shall be held before this to their fire escape or their access to their chimney, and shall court at the expiration of the term of the license granted herein take the necessary steps, measures, and precautions to prevent to determine the actual damages incurred by respondents as and avoid any further damage to the backyard of respondents the result of petitioners' entry upon respondents' land pursuant Johnnie B. Harris, Jr. and Betty Willis; petitioners shall to said license. Alternatively, respondents may submit any remove and cure any issued and outstanding violations, (4) present or future claim for damages directly to petitioners' petitioners shall notify respondents in writing when they insurer, without prejudice to their rights to later seek damages have completed the work under the license, (5) upon the before the court, and (8) any such other terms and conditions completion of the term of the license, respondents' land within that petitioners and respondents may agree to in writing. such license area shall be returned to its original condition, and all materials used in construction and any resultant debris *6 This constitutes the decision, order, and judgment of the shall be removed from the license area, (6) petitioners shall court. save respondents harmless for any damages occurring within the license area, during the period of this license, and a Parallel Citations policy of liability insurance in an amount of not less than $2 million which names respondents as additional insureds shall 5 Misc.3d 1014(A), 798 N.Y.S.2d 713 (Table), 2004 WL be maintained by petitioners during the period of this license, 2590558 (N.Y.Sup.), 2004 N.Y. Slip Op. 51369(U)

Jack K. Feirman*

As with most everything else in the law, we should start our discussion by defining our terms. What, then, is an easement? First, it is an interest in real property.1 It presupposes a dominant estate (beneficiary) and a servient estate (burdened property).2 It is a limited right to use the property of another for a stated purpose. An easement is a non-possessory interest in another's land that entitles the holder only to the right to use such land in the specified manner. This last point is rather important in the title insurance world because while a policy of title insurance will insure an easement, that insurance covers, really, only the right to use the easement for the purpose intended. In effect, the insurance covers mere use only but not any of the covenants, conditions and other terms specified in the instrument creating the easement. Furthermore, for reasons discussed below and because easements may be created other than by express grant (also as discussed below), the title insurance coverage does not include the terms of the easement.

Common purposes for which easements are established include, inter alia, ingress and egress (rights of way), utility lines and lateral support for structures. A negative easement allows the dominant owner to prevent the servient owner from doing something otherwise permissible on the servient land.

Although covenants are similar to easements in that in both cases the use of land is being restricted or enhanced by an obligation owed by the property owner to another party, real covenants differ from easements in that they are not considered interests in land. Real covenants are promises. They cannot be acquired by implication, necessity, prior use or prescription. They are agreements and thus can only be created by promises. Once in existence though, there is little practical difference between a negative easement and a real covenant. Because a restrictive covenant does not convey an interest in real property, it does not constitute an insurable interest. If it runs with the land3, will be a burden on the servient parcel and subject to an exception in a title policy issued to a lender or subsequent owner. If the covenant is construed as merely a covenant (and therefore remedied, potentially by damages) or a servitude (enforceable in an in rem or equitable [injunction]) action is important but the title insurer is not prepared to undertake to enforce the promise.

In M. R. M. Realty Co., Inc. v. Title Guarantee and Trust Company4 the appellant realty company entered into a contract to buy property and hired respondent title company for an examination of title and title insurance. Title Guarantee certified that the vendor could convey good and marketable title, clear of

1Henry v. Malen, 263 A.D.2d 698, 692 N.Y.S.2d 841 (3d Dep’t 1999). “An easement is an interest in land created by grant or agreement, express or implied, which confers a right upon the owner thereof to some profit, benefit, dominion or lawful use out of or over the estate of another.” Huyck v. Andrews, 113 N.Y. 81; 20 N.E. 581 (1889). 2Loch Sheldrake Associates, Inc. v. Evans, 306 N.Y. 297; 118 N.E.2d 444 (1954). 3Insurance Law §1113(a)(18):"Title insurance," means insuring owners of, and other persons lawfully interested in, real property and chattels real against loss by reason of defective titles and encumbrances and insuring the correctness of searches for all instruments, liens or charges affecting the title to such property, including power to procure and furnish information relative thereto, and such other incidental powers as are specifically granted in this chapter.” (Emphasis supplied) 4270 N.Y. 120; 200 N.E. 666 (1936).

*Vice President and Senior Underwriting Counsel, Old Republic National Title Insurance Company/ Lex Terrae Ltd.

all encumbrances except a covenant to build wharves and streets. After purchasing the property, appellant discovered that the grant was void if there was a failure to perform the covenants. Two prospective purchasers rejected title. Appellant brought suit against its title insurer. Reversing the trial court, two appeals courts held title was marketable and that appellant had been put on notice. It was appellant's duty to inform itself as to the terms. The covenants and conditions of the grant did not make the title unmarketable.

Perhaps another way to look at it is that in the case of a true easement, the risk that the title company is underwriting is the possibility that the burdened party will deny the existence of the easement and the title company will be called in to establish that existence through, in many cases, a declaratory judgment action. Enforcing the easement is not, per se, its responsibility. Insuring that an enforceable right exists is its responsibility. But critically, and a complete answer to why a covenant or negative easement is not insured is that it conveys no interest in the servient parcel only a contract right. But because that contract right is enforceable against the owner of the servient parcel and potentially could subject it to liability in one form or another, it does affect the marketability of the servient parcel and should be excepted in any policy insuring an interest therein so as to insulate the title company from liability.

In referencing servitudes, we mean only to call attention to the fact that unlike real covenants that must be created by a writing, servitudes (or equitable servitudes) may be created by implication – as when it is apparent from a physical inspection of a neighborhood that all the houses have Spanish tile roofs. Equitable servitudes were created by courts of chancery to remedy situations where the strict rules of creating a real covenant were somehow not followed but the parties’ intent should be enforced nevertheless.

“An easement appurtenant occurs when the easement (1) is conveyed in writing, (2) is subscribed by the creator, and (3) burdens the servient estate for the benefit of the dominant estate (internal citations omitted). The easement passes to subsequent owners of the dominant estate through appurtenance clauses, even if it is not specifically mentioned in the deed. (Citations omitted)”5

Easements in gross on the other hand are licenses, personal, non-assignable, non-inheritable, expire upon the death of the holder, sometimes called “Personal Easements”. They are “neither assignable nor inheritable”6 and the beneficiaries lose the right to alien such a license if they are “no longer possessed of any dominant estate to which an easement appurtenant could attach.”7

Where an easement is created by express grant and its sole purpose is to provide ingress and egress, but it is not specifically defined or bounded, "the rule of construction is that the reservation refers to such right of way as is necessary and convenient for the purpose for which it was created" (internal citations omitted), and includes "any reasonable use to which it may be devoted, provided the use is lawful and is one contemplated by the grant" (citations omitted).8 With respect to rights of way, an easement for access that does not define the area of the roadway but merely grants an easement to use for ingress and egress will not necessarily mean that the entire easement area has been dedicated to the right of way. Following the rule in Mandia, a court may well find that where an existing roadway lies within the easement area that that roadway is the area dedicated to the right of way. The owner of the servient

5Djoganopolous v. Polkes, 95 A.D.3d 933 944 N.Y.S.2d 217 (2d Dept 2012). 6Gross v. Cizauskas, 53 AD2d 969, 385 N.Y.S.2d 832 (3d Dept 1976). 7Id. 8Mandia v. King Lumber & Plywood Co., 179 A.D.2d 150, 583 N.Y.S.2d 5 (2d Dept 1992). 3

estate will still have rights to use the balance of the easement area, provided that that use does not interfere with the rights of ingress and egress granted.9

On the other hand, easements granted for express purposes will not be broadly interpreted to permit other uses, even those that may seem to be natural extensions of the easement’s express purpose. So, in Sambrook v. Sierocki,10 “where the easement granted plaintiffs the right of ingress and egress, the fact that the servient estate’s owner erected a fence and made some plantings that inhibited the use of the easement area for parking, the trial court “correctly determined that parking was not a proper use of the easement.”11

“To create an easement by express grant there must be a writing containing plain and direct language evincing the grantor's intent to create a right in the nature of an easement rather than a revocable license".12 But an individual cannot grant or have an easement over land they own “because all the uses of an easement are fully comprehended in the general right of ownership.”13 Similarly, an easement cannot be created by deed in favor of a person or property not a party to the deed.14 But sometimes it can be tricky. A right of first refusal is not an easement or an interest in real property and a third party may be granted such an enforceable right although such grant or promise does not create an interest in real property.15 Notwithstanding that no property interest is created by such a covenant, knowledge thereof may adversely affect a purchaser’s status as a bona fide purchaser for value. A title insurance company, being risk averse, is likely to take an exception for such a right of first refusal.

Easements may be created by implication. They are implied from the circumstances. They require that there have been a common grantor between the dominant estate and the servient estate for an easement to be implied across the servient estate.

Easements by implication may be found to have been established from various circumstances

9“Where a right-of-way is granted over a stated width and does not state the express purpose for which it is given, the circumstances of the case will determine "whether the reference is to the width of the way or is merely descriptive of the property over which the grantee must have such a way as may be reasonably necessary." Serbalik v. Gray, 268 A.D.2d 926, 702 N.Y.S.2d 686 (3d Dep’t 2000). 1053 A.D.3d 817, 861 N.Y.S.2d 483 (3d Dep’t 2008). 11Id. 12Kampfer v. DaCorsi, 126 A.D.3d 1067, 6 N.Y.S.3d 680 (3d Dep’t 2015). In Kampfer, the plaintiff’s right to use the defendant’s land for the purpose of agriculture during the repayment period of a loan to defendant was considered a license, not an easement 13Will v. Gates, 89 N.Y.2d 778 680 N.E.2d 1197, 658 N.Y.S.2d 900 (1997). 14McColgan v. Brewer, 84 A.D. 3d 1573, 923 N.Y.S.2d 276 (3d Dep’t 2011). As set forth in Estate of Thomson v Wade, 69 NY2d 570, 509 N.E.2d 309, 516 NYS2d 614 (1987),"[t]he long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so-called stranger to the deed", does not create a valid interest in favor of that third party (citations omitted)." Also, a prior owner could not create an easement benefitting land which he did not own. That owner, having already conveyed an adjoining parcel, could not "reserve" in the deed, upon the sale of the remaining parcel, an express easement appurtenant over the previously conveyed adjoining parcel for the benefit of the grantee of the remaining parcel. Id. 15“As noted above, there is no offer inherent in a right of first refusal when it is given; there is only a contractual obligation to make an offer to the holder once the owner has decided to sell to a third party. The rule that a reservation creating an easement or a life estate cannot not be made in favor of a stranger to the conveyance is simply inapplicable to a preemptive right. A preemptive right does not create a property interest in a stranger to the deed, as that term is understood and applied in Estate of Thomson v Wade, 69 NY2d 570, 509 N.E.2d 309, 516 N.Y.S.2d 614” Cipriano v Glen Cove Lodge #1458, B.P.O.E., 1 N.Y.3d 53, 61, 801 N.E.2d 388, 769 NYS2d 168 (2003). 4

The former existence of a public highway where the common grantor owns to the centerline thereof and includes the former highway as a boundary in his descriptions or where he owns the bed of the highway will create an easement for use of the roadbed. He will ordinarily be found to have impliedly granted his grantees a private easement of access underlying the public highway. When or if the public road is abandoned or discontinued, the private easements of access which were impliedly or expressly granted allow for the perpetual enjoyment of the road for the grantee and his successors. 16

The claimed easement must have, prior to separation, been so long continued and obvious as to show it was intended to be permanent, and the use must have been necessary to the beneficial enjoyment of the dominant estate at the time of the conveyance.”17

But note that the easement implied is only for the purpose for which it was originally created.18

When a deed makes reference to a filed map depicting a right of way, an easement by implication will be found to exist.19 Although the intention of the grantor is to be determined in light of all the circumstances, the most important indicators of the grantor's intent are the appearance of the subdivision map and the language of the original deeds.20

Finally, an easement by necessity is a form of implied easement. In addition to the unity of title that is common to all forms of easements by implication and a subsequent separation of title, at the time of severance an easement over the alleged servient parcel was absolutely necessary.21 An easement by necessity is a form of implied easement may arise if the easement is necessary (not merely convenient) for the use and enjoyment of one parcel that had been part of a larger plot with respect to which the easement is claimed. The easement by necessity comes into effect when one parcel of land is sold and one or more remaining parcel(s) is or are deprived thereby of a required access to, for example, a public road or utility.

“It is well settled that “‘when property is described in a conveyance with reference to a subdivision map showing streets abutting on the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant’” (citations omitted). Nonetheless, whether an implied easement was in fact created depends on the intention of the parties at the time of the conveyance (citations omitted). This requires proof that the deed from the original subdividing grantor referred to the

16Kent v. Dutton, 122 A.D.2d 558 (4th Dep’t 1986). 17Four S. Realty Co. v. Dynko, 210 A.D.2d 622, 619 N.Y.S.2d 855 (3d Dep’t 1994). “The necessity required for an implied easement based upon preexisting use is only reasonable necessity, in contrast to the absolute necessity required to establish an implied easement by necessity.” Id. 18Hopper v. Friery, 260 A.D.2d 964, 689 N.Y.S.2d 305 (3rd Dep’t 1999). 19Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20, 133 N.E.2d 505, 150 N.Y.S.2d 13 (1956); Iovine v. Caldwell, 256 A.D.2d 974, 682 N.Y.S.2d 288 (3rd Dep’t 1998); Fischer v. Liebman, 137 A.D.2d 485, 524 N.Y.S.2d 720 (2nd Dep’t 1988). 20Fischer v. Liebman, fn 19 supra. 21Stock v. Ostrander, 233 A.D.2d 816, 650 N.Y.S.2d 416 (3d Dep’t 1996).“To establish an easement by necessity, plaintiff must, by clear and convincing evidence, show that its property was at one time titled under the same deed as defendants' and, when severed, plaintiff's parcel became landlocked.” Lew Beach co. v. Carlson, 77 A.D.3d 1127 (3d Dep’t 2010).“It is arguable that plaintiff also established the elements of an easement by necessity by showing that, in addition to unity of title, at the time of severance the easement was absolutely necessary to obtain access to the landlocked parcel.” (Stock v Ostrander, supra); Astwood v Bachinsky, 186 A.D.2d 949, 589 N.Y.S.2d 622 (3d Dep’t 1992). (Emphasis supplied). Under New York law, access to a property by means of a navigable waterway will defeat an easement by necessity. Foti v. Noftseir, 72 A.D.3d 1605, 901 N.Y.S.2d 434 (4th Dep’t 2010). 5

subdivision map or the abutting paper street (citations omitted). DeRuscio v. Jackson, 164 A.D.2d 684 (3d Dep’t 1991).22

Easements by prescription create genuine issues of fact that while they help to clear title, make insuring them difficult. In Walling et al. v. Przybyl23 the Court of Appeals enunciated the essential rationale for easements by prescription and the extent that knowledge of others’ rights by the adverse possessor will govern:

“Defendants argue that there is no claim of right when the adverse possessor has actual knowledge of the true owner at the time of possession. However, longstanding decisional law does not support this position. The adverse possessor must act under claim of right (see Van Valkenburgh). By definition, a claim of right is adverse to the title owner and also in opposition to the rights of the true owner. Conduct will prevail over knowledge, particularly when the true owners have acquiesced in the exercise of ownership rights by the adverse possessors [citation omitted]. The fact that adverse possession will defeat a deed even if the adverse possessor has knowledge of the deed is not new (see Humbert v Rector Churchwardens & Vestrymen of Trinity Church, 24 Wend 587, 604 [1840] ["Possession by the defendant with a claim of title for twenty years, can no more be answered by averring that he knew he was wrong, than could the bar of two years, in slander, by the known falsehood of the libel for which it is prosecuted"]). The issue is "actual occupation," not subjective knowledge (see id. [Emphasis omitted]).”

"Adverse possession, although not a favored method of procuring title, is a recognized one. It is a necessary means of clearing disputed titles and the courts adopt it and enforce it, because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles and this is desirable" (Belotti v Bickhardt, 228 NY at 308; see generally Hindley v Manhattan Ry. Co., 185 NY 335, 355-356, 78 NE 276 [1906]).”

By and large, we in the title insurance industry are concerned with easements appurtenant. Their characteristics include:

• Benefits one or parcels of land (dominant estate(s) or parcel(s)) and burdens another (servient estate or parcel • Easements appurtenant run with the land • There is privity of estate • Easements appurtenant are interests in real property • Easements appurtenant are not transferred with deeds or other conveyances24

22While it is true that a defect arising from the rights of a person whose interest appears in the chain of title must be covered unless specifically excepted" (Herbil Holding Co. v Commonwealth Land Tit. Ins. Co., 183 A.D.2d 219, 226, 590 N.Y.S.2d 512 [1992]) the City's claimed easement as an adjoining landowner is implied by law. The law is clear that "when property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant" (Bogan v. Town of Mt. Pleasant, 278 A.D.2d 264, 718 N.Y.S.2d 181[2000])”Scaglione et al. v. Commonwealth Land Title Insurance Company, 303 A.D.2d 671; 757 N.Y.S.2d 84 (2d Dep’t 2003). 237 N.Y.3d 228; 851 N.E.2d 1167; 818 N.Y.S.2d 816 (2006). 24 The nature of an easement running with the land is that its benefits and burdens are transferred automatically upon the conveyance of the dominant or servient estate, as the case may be. Specifically reciting the easement appurtenant in a deed is not required. Hennessy v. Murdock, 137 N.Y. 317, 33 N.E. 330 (1893);Wilkinson V. Nassau 6

• The rights and obligations pursuant to such easements remain irrespective of the ownership or other possessory interests in the properties • The rights and obligations under easements appurtenant benefit and burden the respective owners of the dominant and servient parcels.

Underwriting considerations include:

• Easements often contain a multitude of reciprocal obligations and benefits • Insurance will assure that the access right has been granted but not the enforceability of the terms • Requests to insure the “rights granted under” the instrument should be refused by the underwriter • Beyond access to the burdened parcel, the other rights are not interests in real property • Availability of a current certified survey

To convey an interest in an easement by deed, referencing the easement itself is not necessary. The appurtenances clause in a deed is sufficient.

“The rule of the common law on this subject is well settled. The principle is, that where the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement, or portion sold, with all the benefits and burdens which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. This is one of the recognized modes by which an easement or servitude is created. No easement exists so long as there is a unity of ownership, because the owner of the whole may, at any time, rearrange the qualities of the several parts. But the moment a severance occurs, by the sale of a part, the right of the owner to redistribute the properties of the respective portions ceases; and easements or servitudes are created, corresponding to the benefits and burdens mutually existing at the time of the sale. This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of this burden are open and visible, takes the property with the servitude upon it. The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.”25

Title insurance policies do not insure the accuracy of a survey. The title company is relying on the survey equally with the owner and/or the lender. This is so notwithstanding that the industry has developed the practice of insuring that the property insured is the same as shown on a specified survey26

Shores, 1 Misc.2d 917, 86 N.Y.S.2d 603 (Sup. Ct. Nassau Co. 1949), affd 304 N.Y. 614, 107 N.E. 614, 107 N.E.2d 93 (1952). 25Lampman v. Milks, 21 N.Y. 505 (1860). 26 “The Company hereby assures the Insured that said Land is the same as that delineated on the plat of a survey made by ______designated Job No. ______. The Company hereby insures said Assured against loss which said Assured shall sustain in the event said assurances herein shall prove to be incorrect.” (TIRSA Land Same as Survey Endorsement). 7

and that insured parcels are contiguous along their common boundary.27 Affirmative insurance as to the location of an easement is generally to be avoided by an underwriter although this is a frequent request.

Insurance of an easement does not insure that the actual use will be reasonable or that either the grantor or grantee was in compliance with the terms of the easement at the time of the conveyance. To properly protect oneself, the purchaser of the dominant estate should inquire of and obtain an estoppel from servient owner to the effect that no default by the grantee exists. Such a provision would be particularly important for a property the economic viability of which might depend on the easement but also, while there is no statutory authority for a lien if a financial obligation by a party to an easement is not satisfied, the possibility of a lawsuit based on contract always exists and as we know, a judgment in New York has a lifetime of ten years and has priority over all transfers (subject to certain exceptions) from and after the date such judgment is docketed or entered28 (and may be renewed for an additional like period29) and becomes a lien on all of a party’s real estate in each county in which the judgment is docketed or entered.30

An easement acquired by grant “remains as inviolate as the fee favored by the grant, unless conveyed, abandoned, condemned or lost through prescription”31 Non-use alone cannot extinguish an easement created by grant.32 An owner is not required that an owner of an easement use it.33 However, such an owner who sits on his rights may lose them through prescription.34

An issue that has come to our attention recently is what happens to an easement when the real estate taxes on the servient parcel are not paid. Private easements of light, air, and access of

27“ The Policy insures against loss or damage which the Insured may sustain by reason that the land described in the Policy as Parcels ______are not contiguous to each other along their common boundary line(s).” (TIRSA Contiguity Endorsement). There are ALTA endorsements for the same matters available nationally. 28 CPLR §5203(a). 29 CPLR §5203(b). 30CPLR §5203(a). 31Gerbig v. Zumpano, 7 N.Y.2d 327 165 N.E.2d 178; 197 N.Y.S.2d 161 (1960). 32Id. 33 “Although an easement created by grant may be lost by abandonment, an owner is under no obligation to make use of his property, and an abandonment does not result by nonuse. It results only when there is a nonuse accompanied by an intention to abandon on the part of the owner. Abandonment necessarily implies non-user, but non-user does not create abandonment no matter how long it continues. There must be found in the facts and circumstances connected with the non-user an intention on the part of the owner of the easement to give it up, but intention existing coupled with non-user will uphold a finding of abandonment.”Consolidated Rail Corporation, Appellant v. MASP Equipment Corp. 67 N.Y.2d 35; 490 N.E.2d 514; 499 N.Y.S.2d 647 (1986). 34“Where an easement has been definitively located and developed through use, there is no requirement that its owner demand the removal of obstructions blocking the easement before it may be extinguished by adverse possession. A use of an easement which is exclusive, open and notoriously hostile to the interests of the owner commences the running of the prescriptive period and the user may extinguish the easement if that use continues uninterrupted for a period of 10 years…”(Emphasis supplied)Spiegel v. Ferarro, 73 N.Y.2d 622; 541 N.E.2d 15; 543 N.Y.S.2d 15 (1989). 8

adjoining land owners that were lawfully acquired before the levying of a tax are not extinguished by a tax sale.35

Title companies will usually insure against reversion of title or forfeiture if easement is violated by insured. Absent a specific forfeiture or reversionary clause or a specific condition subsequent, forfeiture or reversion is not an issue.

35Behar et al. v Wiblishauser, 99 A.D.3d 838; 953 N.Y.S.2d 51 (2d Dep’t 2012). JACK K. FEIRMAN 134 Christine Drive Dix Hills, New York 11746 (T) 631-923-0180 (M) 917-843-3551 (E) [email protected]

Work History: 1971-1978 Kronish, Lieb, Weiner & Hellman LLP Associate

1978-1997 Kronish, Lieb, Weiner & Hellman LLP Partner

1997-2011 Wien & Malkin LLP Partner

2011-2013 Malkin Properties LLC Senior Counsel

2014-Present First American Title Insurance Company Senior Underwriting Counsel

Education: 1964-1968 Brandeis University B.A. History Major with Honors Magna Cum Laude Phi Beta Kappa

1968-1971 Harvard Law School J.D. Cum Laude

Experience: Represented major national banks in corporate, regulatory and mortgage lending matters; real estate developers in construction, acquisition and leasing of office buildings, shopping centers and multifamily projects; private fund mortgage and mezzanine lenders; general contractors and construction managers; New York City office building landlords; commercial tenants; title insurance underwriter

Professional: Participant/panelist in a number of seminars for Association of the Bar of the City of New York; wrote several articles for publication in real estate journals; lecturer at New York University Real Estate Institute; member of the Real Estate Committee of the Association of the Bar of the City of New York; conducted CLE real estate programs

Jack Feirman was in private practice for over 40 years specializing in commercial real estate, with extensive experience representing institutional mortgage lenders, mezzanine and preferred equity financing funds, developers, contractors and construction managers and major owners/operators of office buildings and retail properties. After retiring from private practice in 2013, he has been a senior underwriting counsel for First American Title Insurance Company and presently holds the same position at Old Republic National Title Insurance Company in New York City. Jack graduated magna cum laude from Brandeis University and cum laude from Harvard Law School. He has lectured at New York University’s Real Estate Institute and has conducted real estate programs for the Association of the Bar of the City of New York, written articles for The New York Law Journal and Commercial Real Estate.

[email protected] direct telephone number: 212-716-3281

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EDUCATION Brooklyn Law School, J.D. 2007 Yeshiva University, B.A. 2004, cum laude

BAR ADMISSIONS 2008, New York 2008, District of Columbia

AV Preeminent® Rated

Selected to the NY Metro Super Lawyers, Rising Stars list for 2014 and 2015.

BIOGRAPHY Ariel Weinstock is a partner at Katsky Korins LLP, where he is a member of the firm’s real estate department.

Ariel has handled a broad array of real estate transactions, representing and advocating for the interests of owners, developers, contractors, architects, lenders, borrowers, landlords, tenants, purchasers, sellers, condominium boards, and not-for-profit entities. He concentrates his practice on commercial real estate transactions including, dispositions, acquisitions, financing, development, and operation and management of commercial assets, including all aspects of owning and operating commercial condominium units, and advising clients on complex forward and reverse I.R.S. §1031 exchanges and tenancy-in-common arrangements. Ariel has negotiated design and construction agreements for local and national clients in connection with development and renovation projects totaling in excess of $200,000,000.00.

Within the legal community, Ariel serves as a member of the Board of Directors for the New York County Lawyers Association, and is the co-chair of both the Board’s Building Committee, and the Association’s Construction Law Committee. Ariel was appointed to the Executive Committee of the Real Property Law Section of the New York State Bar Association, and is the co-chair of the Student Affairs Committee. Ariel also serves as Secretary of the NYSBA Construction Law Committee, a position he has held since the Committee was first formed. In addition, Ariel is a frequent lecturer for the bar and other associations at CLE and other programs.

BAR ASSOCIATIONS New York County Lawyers’ Association Director, Board of Directors Co-Chair, Building Committee Co-Chair, Construction Law Committee

New York State Bar Association Member, Executive Committee, Real Property Law Section Co-Chair, Student Affairs Committee, Real Property Law Section Secretary, Construction Law Committee, Real Property Law Section

Founder and Managing Editor, New York County Lawyers’ Association Construction Law Journal

RECENT CLE PRESENTATIONS Survey Examination, NYSBA CLE, Practical Skills - Purchases and Sales of Homes

Opening Up: Office Leasing and Renovation Contracts, NYCLA CLE, First Annual Business and Contract Law Institute

Opening Up: Office Leasing and Renovation Contracts, Cardozo Business and Contract Law Institute

The Business of Building: Professionals’ Perspectives, NYSBA CLE, RPLS Summer Meeting.

Default by Owners, Mechanic Lienors and Lenders in Construction Contracts - Remedies for Cure, NYSBA CLE, Hot Topics in Real Property Law and Practice

PUBLICATIONS Ariel Weinstock et al., New York’s Scaffold Law and Pending Reforms, November 6, 2014 (http://nycla.org/siteFiles/Publications/Publications1729_0.pdf)

Ariel Weinstock, Trenchless v. Hallen: No Damages For Contemplated Delays, NYCLA Construction Law Journal Fall 2011, at 16. New York City Commercial Litigation Lawyer :: Bruce H. Lederman :: Westchester Cou... Page 1 of 3

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PRACTICE AREAS Home > Attorneys > Bruce H. Lederman Corporate Law Litigation and Dispute Resolution Bruce H. Lederman Real Estate Partner Taxation

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Phone: (212) 564-9800 Important Decisions Fax: (212) 564-9802 and Articles 345 Seventh Avenue, 23rd Floor New York, New York 10001

Bruce H. Lederman is the head of the firm's litigation practice. Mr. Lederman has extensive trial and appellate experience before both the Federal and New York State Courts. He handles all aspects of commercial litigation. He has particular expertise in construction disputes, mechanic's liens, real estate contract enforcement and down payment disputes, real estate title issues, brokerage, employee restrictive covenant issues and intellectual property cases.

At the appellate level, in 2015, Mr. Lederman obtained a determination by the Appellate Division, First Department, that the sponsor of a newly built condominium is not under any duty to sell all units and may retain rental units within the condominium building, as well as a decision that a condominium purchaser waived its right to rescission by later entering into a renovation agreement which reaffirmed the original purchase agreement. In 2015, Mr. Lederman also obtained a reversal from the Appellate Division, First Department, dismissing claims against a condominium sponsor for alleged errors in a condominium offering plan. In 2013, Mr. Lederman obtained a modification of the law from the New York State Court of Appeals in an important case involving priority of mechanics' liens over consolidated acquisition and construction financing. Also, in 2013, Mr. Lederman obtained a reversal from the Appellate Division, First Department, in a case where the City of New York had improperly denied a developer 421-a tax benefits valued at approximately $3 million. In 2012, Mr. Lederman successfully obtained a unanimous reversal by the New York State Court of Appeals of an Article 78 proceeding where the New York State Department of Labor improperly attempted to hold a general contractor liable for the unpaid wages owed by a subcontractor. In 2011, Mr. Lederman argued a major case before the Second Circuit Court of Appeals in a landmark case involving the Interstate Land Sales Act. Mr. Lederman has also successfully argued a wide variety of other appeals involving specific performance and down payment disputes for real estate contracts, mechanic's liens, foreclosures and other business related issues.

At the trial level, Mr. Lederman has extensive experience arguing complex motions, trying cases and appearing in arbitrations. In 2014, Mr. Lederman through an Article 78 proceeding successfully challenged a New York City agency's determination denying a developer's entitlement to valuable J-51 tax benefits, which had a long term projected value of $2.4 million. In 2013, Mr. Lederman obtained summary judgment (which was later affirmed by the Appellate Division) dismissing finder's fee claims of over $6 million against the New York City Regional Center in connection with EB-5 financing of the Brooklyn Navy Yard, Steiner Studios and Barclay's Arena. In trials and hearings, Mr. Lederman has

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successfully represented an employee at a trial involving unpaid wages and counterclaims for breach of fiduciary duties, a flooring contractor in the foreclosure of a mechanic's lien and counterclaims of defective installations, numerous private property owners in enforcement of contracts and restrictive covenants issues and various manufacturers and retailers in trademark and copyright disputes.

Mr. Lederman has recently submitted an amicus brief to the Supreme Court of the United States representing public school teachers in the case Friedrichs v. California Teachers, which involves funding of public employee unions and is considered one of the most important cases before the high court in 2016. Mr. Lederman is also presently counsel in an Article 78 proceeding challenging whether the way the State of New York began rating teachers in 2012 was arbitrary and capricious. That case has been subject of feature pieces in the Washington Post, Wall Street Journal, Albany Times Union, as well as CBS and Al Jazerra nightly news.

Other notable cases involve the successful recovery for a client of over $6 million from a major law firm after an associate attorney embezzled funds from the firm's escrow account and fled the country. In that case, Mr. Lederman closely coordinated with the New York District Attorney to extradite the attorney back to the United States, where he was sentenced to 4 to 12 years in prison. In 2008, Mr. Lederman represented a large group of victims of an $80 million mortgage fraud ponzi scheme and acted as special real estate counsel to the creditor's committee in the bankruptcy case involving the liquidation of a portfolio of over 20 properties for the benefit of the defrauded creditors and investors. In that case, Mr. Lederman also coordinated with the United States Attorney resulting in the perpetrators being sentenced to over five years in prison.

On the transactional side, Mr. Lederman has represented numerous developers in the acquisition and sale of multi-family properties, with both traditional and private placement financing. Mr. Lederman has closed many individual properties as well as large portfolio refinances (involving up to approximately $100 million), including securitized and Fannie Mae transactions and defeasance transactions. In 2007, Mr. Lederman represented the seller of the East Harlem Portfolio, one of the largest residential portfolio sales in Harlem's history, consisting of 49 separate properties with a combined sales price in excess of $200 million.

Mr. Lederman's clients include First American Title Insurance Co., Old Republic Title Insurance, Royal Abstract, The Moinian Group, Sackman Enterprises, The RE Group (the Kessner Family), C&K Properties (Meir Cohen and Ben Korman), El Ad Properties, Dabby Investments (Roni Ben-Dov), Dennis Herman, L&M Development, Simone Development, Haruvi Holdings, Richard Maidman, ODA Architecture (Eran Chen), O&D Builders (Nick DeSarno) and toy manufacturer Kids of America/Magic Power Company. Early in his career, Mr. Lederman represented Louis Vuitton in trademark counterfeiting cases and Mitsubishi Motors in product liability cases.

Mr. Lederman has written articles about time of the essence and closing issues which have appeared in the New York State Bar Association Journal as well as articles on condominium sponsor liability and mechanic's liens which have appeared in Real Estate Weekly and federal preemption articles that appeared in the New York Law Journal. He has given CLE lectures for the New York State Bar Association on real estate contracts and on construction defect litigation. He has also give CLE lectures on mechanic's liens for First American Title Insurance Co.

EDUCATION

J.D., New York University, 1984 Executive Editor, The Review of Law and Social Change B.A., University of Pennsylvania, Faculty of Arts and Sciences, 1981 cum laude B.S.E., University of Pennsylvania, The Wharton School of Business, 1981 cum laude

BAR ADMISSIONS New York State Bar, 1985 New Jersey State Bar, 1985 United States District Courts, Southern and Eastern Districts of New York, 1985 United States District Court, District of New Jersey, 1985

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United States Court of Appeals for the Second Circuit Supreme Court of the United States

PROFESSIONAL ASSOCIATIONS New York State Bar Association Member of the Construction Law Subcommittee of the Real Estate Property Section

345 Seventh Avenue, 23rd Floor New York, New York 10001 Phone: (212) 564-9800 Fax: (212) 564-9802 Email: [email protected]

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