In New York's current real estate climate, with construction seeming to exist on every vacant parcel and often in close proximity to neighboring properties, it is often necessary to obtain permission of the adjacent neighbors to erect protection on the their properties. (The erection of sidewalk bridges on public rights of way does not require permission of the property owner fronting the sidewalk bridge, unless the bridge is affixed to the neighbor's property.)

Where the developer finds an uncooperative neighbor, recourse to Real Property Actions and Proceedings Law § 881, pursuant to which the developer may obtain a license to enter the neighbor's property, is available. Section 881 is silent as to conditions which may be imposed for granting the license, stating only that the license shall be granted by the court “as justice requires,” and a body of case law has developed providing guidance as to whether conditions, such as fees and other costs, to granting the license should be imposed. This article will discuss some of the more notable cases.

License Fees and Other Costs

The most often cited decision for the imposition of a license fee is DDG Warren v. Assouline Ritz 1, where the First Department affirmed the award of license fees to an adjoining property owner because the petitioner's access would, in the court's view, “substantially interfere with the [adjoining owner's] use and enjoyment” of their property. 138 A.D.3d 539, 540 (1st Dept. 2016). The court did not, however, establish the amount of the fee or the basis for setting the fee. Instead, it merely held that it was an improvident exercise of the trial court's discretion to postpone the determination of the fee amount until the conclusion of the 30-month project. Id.

For guidance on the range of fees that are typically awarded, earlier and subsequent decisions are instructive. See, e.g., In re North 7-8 Invs., 43 Misc. 3d. 623, 634 (Sup. Ct., Kings County 2014) (finding that a license fee of $3,500 per month was justified where the developer's construction plan required a cantilevered construction scaffold to be suspended six feet above the licensor's only outdoor space); Snyder v. 122 E. 78th St. NY LLC, 2014 N.Y. Slip Op. 32940(U), 2014 WL 6471438 (Sup. Ct., N.Y. County 2014) (finding that a $3,000 per month license fee was warranted in light of the prolonged duration of the project, which required workers to regularly enter the licensor's property and scaffolding to be affixed to the licensor's walls); Ponito Resident v. 12th St. Apt. Corp., 38 Misc.3d 604 (Sup. Ct., N.Y. County 2012) (awarding an adjoining owner a $1,500 per month license fee for the petitioner's maintenance of a sidewalk shed in front of the adjoining property for a period of five months).