The petitioner owns a building that abuts the respondent’s building. The petitioner was in the process of demolishing its existing building and building an eight-story mixed use building (project). The petitioner had retained an architect, a structural engineer, a contractor and an additional architect to “advise of site safety measures.” The DOB had approved the petitioner’s demolition phase of the project. Thereafter, the petitioner commenced a special proceeding pursuant to RPAPL §881 (§881).

The petitioner argued that it met the requirements of §881 and it needed a license “for temporary access to respondent’s building to install certain protection measures in order to comply with the buildings Code §3309” (§3309). The petitioner claimed a need to “install temporary overhead protection in the form of a rear yard shed in the rear yard of respondent’s building” (shed). The petitioner asserted that the DOB permitted the shed to protect the respondent’s building and it would “only have a small impact on respondent because the rear yard is unoccupied and the use of respondent’s rear yard during winter will be minimal.” The petitioner had offered a license fee of $1,500 per month for the shed.

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