Grill and Honig Secure Win for Real Estate Developer in RPAPL §881 Proceeding

March 31, 2022 | Real Estate, Zoning & Land Use

David M. Grill and Jeremy B. Honig scored a decisive victory after 7 months of litigation in a Real Property Actions and Proceedings Law §881 proceeding in Supreme Court, New York County. RPAPL §881 governs access to an adjoining property to make improvements or repairs.

We commenced the proceeding on behalf of our real estate developer client, which needed to demolish two buildings to complete a development project. Our client sought to obtain a license to access a neighboring property so that it could install required protections ahead of the demolition.

To delay our client’s development, the respondent, whose building is sandwiched between the client’s buildings, alleged that it was entitled to an easement through our client’s property and that any license granted to our client must be conditioned upon a requirement not to interfere with the alleged easement.

After we conclusively established in a motion to dismiss that the respondent had submitted false affidavits and fabricated the existence of documentary evidence, the respondent amended its counterclaims to allege an entirely new fact set and a new basis for the purported easement. We then filed a motion for summary judgment establishing, through extensive investigation of records going back to the Civil War, that the respondent’s new theory was also completely without merit.

The respondent yet again filed a cross-motion to amend its counterclaims, this time alleging that it had inadvertently identified the wrong property through which it was entitled to an easement. We vehemently opposed the cross-motion, arguing that the court must not permit the respondent once again to completely change the underlying allegations as the resulting delays were highly prejudicial to our client and were only designed to stall the development.

After a lengthy and contentious oral argument, the court granted our client’s petition, awarding our client a license to access the respondent’s property to install the protections as required by the building code. Importantly, the court did not require our client to pay the respondent a license fee or to reimburse any of the respondent’s fees or expenses as a condition of the license. The court also dismissed the respondent’s counterclaims in their entirety and denied its motion seeking to amend its counterclaims.

In the scathing decision, the court found it “deeply concerning” that the respondent repeatedly changed its position each time we disproved its allegations, stating: “Now, only after two motions to dismiss previous versions of its counterclaims does Respondent finally settle on a new theory (for now). This is a special proceeding, not a game of whack-a-mole.”

This decision will allow our client to proceed with the property development and should serve as a warning to neighbors that delaying a development project without merit is an expensive exercise in futility.

View Decision

Share this article:

Related News

Get legal updates and news delivered to your inbox