The following papers numbered 1 through 12 read herein:Papers NumberedNotice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed 1-3 4-5 6-8Opposing Affidavit (Affirmation) 5, 7-8 9-10 9-10, 11Reply Affidavit (Affirmation) 9-10 12For an Order and Judgment Pursuant to §339-J of the Condominium Act and RPAPL §881 for Access to Adjoining Property. Upon the foregoing papers, petitioners Marina Voron and George Argiris (Petitioners) move, by order to show cause, for an order: (1) directing respondents, to provide them access, on mutually agreeable dates and times, within ten (10) days of said order, through unit 415 to the General Common Elements (Common Elements) of the condominium building at 700 Pacific Street in Brooklyn (Building) as reasonably necessary for Petitioners’ plumber and contractor to perform their work to the Common Elements, pursuant to the Building’s Declarations and By-Laws and RPL §339-j of Article 9-B; or, alternatively, (2) granting Petitioners a limited license to gain access to unit 415 for Petitioners’ plumber and contractor to perform their work to the Common Elements of the Building in connection with Petitioners’ lawful renovation of unit 515, pursuant to RPAPL 881; (3) awarding Petitioners compensatory damages against respondents Board of Managers of the Newswalk Condominium (Condo Board) and Choice NY Property Management LLC (Choice) in an amount to be determined at trial; and (4) awarding Petitioners costs and disbursements in connection with this proceeding. The Condo Board and Choice cross-move for an order, pursuant to CPLR 3211 (a) (1) and (a) (7), dismissing the petition as against them.Respondents Liliana Ariztizabal and Tony Pimienta (Unit 415 Owners) cross-move for an order, pursuant to CPLR 3211 (a) (1), (a) (3) and (a) (7), dismissing the petition.BackgroundOn March 4, 2019, Petitioners, the owners of condominium unit 515, commenced this proceeding, by order to show cause, against the Condo Board, Choice (the managing agent) and the Unit 415 Owners. Petitioners seek injunctive relief and damages based on respondents’ alleged “failure to comply with the declarations, by-laws, rules, regulations and decisions adopted by the Newswalk Condominium…by prohibiting, interfering with, and denying [them] access to Unit 415 to perform work to the General Common Elements…” Alternatively, petitioners seek a limited license to enter Unit 415.Petitioners “seek access to Unit 415, which is directly below Petitioners’ Unit 515 for purposes of accessing the Common Elements of the Building to perform necessary plumbing work pursuant [to] ongoing renovations to Unit 515…” The petition alleges that “access is required to achieve the proper pitch for the waste line of each toilet serving Unit 515 and the installation of a tub trap…” and “[s]ince the Building is a concrete structure, the only access point to sections of the subfloor…is through the ceiling of Unit 415″.The petition alleges that: (1) the Condo Board approved in writing Petitioners’ renovation plans, “accepted the Petitioners’ general contractor’s insurance certificates and authorized the commencement of the renovations to Unit 515″; (2) Choice signed all Department of Building (DOB) alteration applications; and (3) the DOB approved the renovation plans and issued permits. However, the Unit 415 Owners allegedly “refused access” despite Petitioners’ “assurances…that proper precautions would be taken to minimize disruption and inconvenience and to repair any damage to Unit 415 caused by the Work”. Petitioners allegedly “requested that the Board take action to require the Unit 415 Owners to provide access” but Choice “advised the Petitioners that the Board will not intervene in disputes between…unit owners”. The petition alleges that “[t]he small inconvenience by the temporary and limited access to Unit 415 is greatly outweighed by the substantial hardship to the Petitioners if access if denied”.Petitioners allege the Respondents violated the Condominium’s Declaration and By-Laws. At Paragraph 7(a) the Declaration defines the Common Elements, which “are owned in common by all unit owners…” to include: (1) “the subfloor of the Unit”; (2) “[a]ll installations outside the units for services such as gas, power, telephone and water”; and (3) “all other apparatus and installations existing in the Buildings for common use or necessary or convenience to the existence, maintenance or safety of the Buildings”. Paragraph 11 (a) of the Declaration provides that all unit owners have an easement to use the Common Elements in other units. Article VI, Section 13 of the By-Laws allegedly provides that:“[a] Unit Owner shall grant a right of access to his Unit, to the Manager and/or any other person authorized by the Board of Managers…for the purpose of performing installations, alterations, or repairs to the mechanical or electrical services or other Common Elements in his unit or elsewhere in the Building in which the unit is located, provided that the request[s] for entry are made in advance and that any such entry [is] at a time reasonably convenient to the Unit Owner”.The petition asserts causes of action for an injunction compelling respondents to grant Petitioners access to Unit 415 to perform work on the Common Elements, and prohibiting them from interfering with the work, pursuant to the Condominium Documents and Condominium Act, RPL §339-j; or, alternatively, a license granting Petitioners access to Unit 515, pursuant to RPAPL §881; and breach of fiduciary duty against the Condo Board and Choice.The Condo Board and Choice oppose petitioners’ order to show cause and cross-move to dismiss the petition, pursuant to CPLR 3211 (a) (1) and (a) (7). They contend that the petition fails to state a cause of action against them because “[i]t is Respondents Unit 415 Owners — not the Board or Choice — that have repeatedly denied Petitioners entry or access to their Unit 415″ and “Petitioners do not (and cannot) allege that the Board or Choice has prevented them from accessing the Common Elements.”The Condo Board and Choice argue that dismissal is also warranted based on the Condominium’s Declaration and By-Laws, which “confirm that to the extent [Petitioners] have any right to access a unit, it runs personal to the Board — not to a unit owner.” They further argue that the Condo Board’s right of access is limited to inspections; removing violations and correcting conditions; and performing installations, alterations or repairs to mechanical or electrical services or other Common Elements. In addition, they contend that “[t]he By-laws and Declaration neither permit nor authorize the Board or Choice to access any Condominium unit…simply to allow another unit owner…to access Common Elements situated contiguous to that other unit” and there is no provision “by which the Board and Choice are authorized or permitted to compel a unit owner to provide access to their neighbor” (emphasis added).They assert that Petitioners’ reliance on RPAPL 881 to assert a claim against the Condo Board or Choice is misplaced because such an application for a license “may be initiated by an owner against an adjoining owner when that adjoining owner has refused permission to enter its property” (emphasis added).The Unit 415 Owners oppose Petitioners’ order to show cause and cross-move to dismiss the petition, pursuant to CPLR 3211 (a) (1), (a) (3) and (a) (7), based on an attorney affirmation, which contends that “the Declaration and the By-Laws demonstrate that Petitioners lack the capacity to sue as they have no standing” because “[t]he Board of Managers has the exclusive authority to enforce the by-laws, rules, regulations and decisions adopted…against a non-compliant Unit Owner,” including the “authority to enter or demand access to a Unit…”The Unit 415 Owners contend, without citing any case law, that Petitioners are not entitled to a license to access their unit because RPAPL 881 “is meant to address adjoining land owners, not adjoining units within the same condominium.” The Unit 415 Owners also argue that “[p]etitioners have not demonstrated the necessity of their access,” since “[p]etitioners would like to create a ‘vanity bathroom’ in their Unit [which] is a luxury…” Their counsel argues that such access “is not simply an inconvenience, [but] it is extreme” because the Unit 415 Owners “have rented their unit to a family with an infant.”Petitioners, in opposition to the Unit 415 Owners’ cross motion, contend that the factual allegations in defense counsel’s affirmation should be disregarded, as they are not supported by an affidavit of a person with actual knowledge. Petitioners also assert that the work required is grossly exaggerated, as it will be solely limited to the bathroom of Unit 415 during normal work hours for an estimated period of 2-3 days, and there is no need to vacate the unit. Petitioner George Argiris submits an affidavit asserting that any inconvenience to the tenants of Unit 415 is obviated by the fact that the current tenants’ lease expires at the end of April, 2019 and they are not renewing their lease.Regarding RPAPL 881, Petitioners assert that the Unit 415 Owners are adjoining property owners who share a deeded interest in the Common Elements between their units and that they have an easement to the common elements between the units. Unit 415 Owners’ assertion that RPAPL 881 does not apply to condominium units does not find support in the plain language or the intent of the statute, which provides for the issuance of a license to make improvements to ‘real property’ when the work must be performed by accessing the ‘premises of an adjoining owner’.Petitioners argue that they have a claim under the Condominium Act, RPL §339-j, since Unit 415 Owners have not comply with the Condominium Documents as they have refused to permit Petitioners’ access to the Common Elements, despite authorization from the Board and Choice. They contend that they have standing under §339-j because the statute specifically authorizes an “aggrieved unit owner” to maintain an action to recover “sums, due, for damages or injunctive relief or both.”The Condo Board and Choice submit a limited opposition to the Unit 415 Owners’ cross motion asserting that they are not “authorized or empowered by the statute, condominium declaration or by-laws to compel Co-Respondents to give Petitioners access. In addition, they assert that they “did in fact approach Co-respondents and request that they provide Petitioners access to Unit 415 in the interest and spirit of ‘good neighboring.’”DiscussionThis proceeding apparently raises an issue of first impression regarding whether RPAPL 881 is applicable in the context of adjoining condominium units. Based on the plain language of the statute,1 RPAPL 881 applies to any “real property,” which includes condominium units. RPAPL 881 thus provides: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.RPAPL 881 is “a codification of well-settled principles of jurisprudence expounded by courts…dealing with conflicting interests of adjacent property owners” (Chase Manhattan Bank v. Broadway, Whitney Co., 57 Misc 2d 1091, 1096 [Sup Ct, Queens County 1968], affd 24 NY2d 927 [1969]).“A proceeding pursuant to RPAPL 881 is addressed to the sound discretion of the court…which must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted” (Queens Coll. Special Projects Fund, Inc. v. Newman, 154 AD3d 943, 943-944 [2017] [internal citations omitted]), lv denied, 31 NY3d 901 [2018]; see also Bd. of Managers of Artisan Lofts Condo. v. Moskowitz, 114 AD3d 491, 492 [2014]). “Courts are required 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’” (Bd. of Managers of Artisan Lofts Condo, 114 AD3d at 492 [quoting Chase Manhattan Bank, 57 Misc 2d at 1095]).Here, the court finds that Petitioners have satisfied the statutory prerequisites of showing necessity and that neither the period of time requested nor the size of the area involved appears unreasonable. While the Unit 415 Owners assert that granting Petitioners access “is not simply an inconvenience, [but] it is extreme” because they have rented unit 415 to a family with an infant, Petitioners have established that those tenants have already vacated unit 415. The parties confirmed during oral argument that unit 415 is now vacant. Thus, granting Petitioners a limited license to access and perform work in the bathroom of unit 415 would not inconvenience any existing tenants.Notably, licenses pursuant to RPAPL 881 have been granted to enter upon the adjoining neighbor’s property even in situations where the proposed work is intrusive (see, e.g., N. 7-8 Inv’rs, LLC v. Newgarden, 43 Misc 3d 623, 634 [Sup Ct, Kings County 2014] [license granted pursuant to RPAPL 881 where "the activities pursuant to the license will be more intrusive then a sidewalk shed or scaffold [because] Respondent will have a cantilevered balcony protrude 6 feet into his airspace, approximately 6 feet above his roof deck, for a year”]; Rosma Development, LLC v. South, 5 Misc 3d 1014 [A] [Sup Ct, Kings County 2004] [license granted to developer of eight-story building, pursuant to RPAPL 881, to erect sidewalk bridging that would abut 10 feet onto the sidewalk of adjoining owner's property, as well as roof protection, for a period of twelve months]).Importantly, RPAPL 881 affords the adjoining property owners adequate legal rights and remedies by subjecting the licensee to full liability “for actual damages occurring as a result of the entry.” For such actual damages occurring as a result of the entry, the Unit 415 Owners have a cause of action against Petitioners under the statute, and, to insure payment of such damages, the court will require the maintenance of adequate insurance by Petitioners (see Sunrise Jewish Ctr. of Valley Stream v. Lipko, 61 Misc 2d 673, 676-677 [Sup Ct, Nassau County 1969]). Additionally, the Unit 415 Owners will receive compensation for Petitioners’ utilization of unit 415 during the time period of the license in a fair and equitable sum as set forth below. Accordingly, it isORDERED that the petition is granted to the extent that Petitioners are granted a temporary license to access and perform work in the bathroom of unit 415, pursuant to RPAPL 881, on the conditions that: (1) the license shall entitle Petitioners’ plumber and contractor to access and perform work on the ceiling of the bathroom in unit 415 for a maximum of ten (10) consecutive days on dates and times that are mutually agreeable to the parties, and is to be commenced within 20 days from the date of entry of this order; (2) Petitioners shall pay the Unit 415 Owners a license fee of $100.00 per day until the work under the license is completed; (3) Petitioners shall maintain, during the period of the license, a comprehensive liability insurance policy covering the work to be performed in unit 415 in an amount of not less than $ 1,000,000., which names the Unit 415 Owners as additional insureds; (4) Petitioners shall provide proof of the aforesaid insured coverage to the Unit 415 Owners prior to commencement of the work; (5) Petitioners shall be held liable to the Unit 415 Owners for any damages which they may suffer as a result of the granting of this license, and all damaged property shall be repaired at the sole expense of Petitioners; (6) Petitioners shall indemnify the Unit 415 Owners for any personal injury or property damage caused by their work; (7) Petitioners shall, upon the completion of the term of the license, restore unit 415 to its original, broom clean condition, and all materials used in construction and any resultant debris shall be removed from the license area; and (8) Petitioners shall notify the Unit 415 Owners, the Condo Board and Choice in writing when they have completed the work under the license; and it is furtherORDERED that the petition is otherwise denied; and it is furtherORDERED that the Unit 415 Owners’ cross motion to dismiss the petition is denied; and it is furtherORDERED that the Condo Board and Choice’s cross motion to dismiss the petition as against them is granted without opposition.This constitutes the decision, order and judgment of this court.
