Scott Mollen

RPAPL §881—License To Permit Use of Adjacent Property During Construction Denied—Constant Unapproved Changes to Construction Plans Did Not Rise to The Level of Proof Required by RPAPL §881 and Permanent Change to Respondent's Property Preclude the Granting of a §881 License—No Reimbursement of Expert and Attorney Fees When License Is Not Granted

A petitioner moved pursuant to RPAPL §881 (§881), for a license to enter upon the respondent's property "for an extended period of time." The respondent opposed the application and counterclaimed for reimbursement of expert fees, attorney fees and costs.

The respondent's property and the petitioner's property share a common wall (south wall). The petition described construction that would occur along the east, south and west sides of the respondent's property. The work would include, inter alia, removal of the south wall and trees and would involve excavation and foundation work related to such removal. The petitioner claimed that there was "no reasonable alternative to stabilize the (respondent's property's) soil then to replace the disturbed soil and install timber lagging to keep the soil in place."

The petitioner stated that it had "not yet been determined what permanent reinforcement the West Wall will require after the project is completed if, in fact, any is required." The petition also stated that "[t]he improvements constituting the Work are mostly temporary in nature and are all are intended to safeguard" the project property, the adjacent property and or the public during the contemplated construction and permit the project to be built.