145WEST10REALTYLLC, ETC., PLAINTIFF-APPELLANT v. MARGARET WHELAN, def-res

9999. 145WEST10REALTYLLC, ETC., PLAINTIFF-APPELLANT v. MARGARET WHELAN, def-res — Goetz Fitzpatrick LLP, New York (Ellen August of counsel), for ap — Wasserman Grubin & Rogers, LLP, New York (Richard Wasserman of counsel), for res — Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 3, 2012, which granted defendant Margaret Whelan's motion for summary judgment dismissing the complaint and denied plaintiff 145 West 10 Realty LLC's discoveryrelated cross-motion, unanimously reversed, on the law, without costs, defendant's motion for summary judgment dismissing the complaint denied, and plaintiff's motion granted to the extent of directing both parties to make their premises available for inspection by their retained experts and to continue depositions of the parties and their respective experts.

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9999. 145WEST10REALTYLLC, ETC., PLAINTIFF-APPELLANT v. MARGARET WHELAN, def-res — Goetz Fitzpatrick LLP, New York (Ellen August of counsel), for ap — Wasserman Grubin & Rogers, LLP, New York (Richard Wasserman of counsel), for res — Order, Supreme Court, New York County (Milton A. Tingling, J.), entered July 3, 2012, which granted defendant Margaret Whelan’s motion for summary judgment dismissing the complaint and denied plaintiff 145 West 10 Realty LLC’s discoveryrelated cross-motion, unanimously reversed, on the law, without costs, defendant’s motion for summary judgment dismissing the complaint denied, and plaintiff’s motion granted to the extent of directing both parties to make their premises available for inspection by their retained experts and to continue depositions of the parties and their respective experts.

“A common definition of a party wall is a division wall between two adjacent properties belonging to different persons and used for the mutual benefit of both parties, but it is not necessary that the wall should stand partly upon each of the adjoining lots; it may stand wholly upon one lot” (Soma Realty Co. v. Romeo, 31 Misc2d 20, 22 [Sup Ct, Onondaga County 1961]). “[T]he only restriction upon its use by either is that [the] use shall not be detrimental to the other” (Negus v. Becker, 143 NY 303, 308 [1894]). It is well settled that “if one of the owners carries the wall several stories higher, the other party has no right to complain… and the latter has an equal right to use the addition” (Wechsler v. Elbeco Realty Corporation, 119 Misc 178, 180 [Sup Ct, NY County 1922], affd 213 AD 820 [1st Dept 1925]). However, neither party has a right to do anything on top of the party wall “which would exclude the other party from its equal use” (id. at 181). Further, it is permissible for an adjoining property owner to make commercial use of a party wall so long as it does not weaken or encroach on the other party (Lei Chen Fan v. New York SMSA Ltd. Partnership, 94 AD3d 620, 621 [1st Dept 2012]).

145WEST10REALTYLLC, ETC., PLAINTIFF-APPELLANT v. MARGARET WHELAN, def-res

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