N.Y. General City Law § 38-a: Removal of walls encroaching on streets

§ 38-a. Removal of walls encroaching on streets. 1. If the front or

other exterior wall of any building erected on or before the first day

of January, nineteen hundred sixty, in any city encroaches not more than

six inches upon any street or highway, no action or proceeding to compel

the removal of such wall shall be instituted or maintained by or on

behalf of the city, or by or on behalf of any person claiming an

easement in or title to the portion of the street or highway on which

such wall encroaches, unless such action or proceeding be commenced

within the period of one year from the time this act takes effect, and

unless within such period a notice of the pendency of such action or

proceeding, describing the property on which said building stands and

indexed against the owner thereof, be filed in the office of the clerk

of the county in which the property lies.

2. If the front or other exterior wall of any building erected after

the first day of January, nineteen hundred sixty, in any city encroaches

not more than six inches upon any street or highway, no action or

proceeding to compel the removal of such wall shall be instituted or

maintained by or on behalf of the city, or by or on behalf of any person

claiming an easement in or title to the portion of the street or highway

on which such wall encroaches, unless such action or proceeding be

commenced within the period of one year from the time of the serving of

a notice as hereinafter provided, and unless within such period a notice

of the pendency of such action or proceeding, describing the property on

which said building stands and indexed against the owner thereof, be

filed in the office of the clerk of the county in which the property

lies. Any person having any interest in the property on which such

building stands may serve a notice on the corporation counsel of the

city in which said property lies, setting forth a brief description of

the property, his interest therein, and the existence of an encroachment

on the street or highway. Such notice, together with proof or admission

of service thereof, shall be filed in the office of the clerk of the

county in which such property lies. The clerk shall index and record

such notice as if it were a notice of the pendency of an action and

shall collect the usual fees for recording and indexing a notice of the

pendency of an action.

3. If no action be brought within the period hereby limited therefor

the owners and encumbrancers of such property shall be deemed to have an

easement for the maintenance of the encroaching wall so long as the said

wall shall stand, and no longer.

4. If the front or other exterior wall of any building erected on or

before the first day of January, one thousand nine hundred seventy-nine

in any city encroaches not more than six inches upon any city street or

city highway, the local legislative body of any city may authorize the

maintenance of such encroachment by ordinance during the period of time

the encroaching wall is in existence; provided, however, that such

authorization shall not confer any right or claim to be asserted against

such city or the state.

5. a. The owner of real property upon which the front or exterior wall

of any building thereon encroaches upon any city street or highway of

cities with a population of less than one million, may submit a request,

in writing, to the legislative body of such city for authorization to

maintain such front or exterior wall during the time such wall is in

existence.

b. Upon presentation of such request, notice thereof shall be given to

the head of the city department responsible for the construction and

maintenance of city streets and roads in the city, who shall recommend

to the legislative body the proposed action on such request. Within

thirty days of the presentation of such request, the legislative body of

such city shall determine if the granting of such request shall

adversely impact upon the users of the city street or highway. In the

event a determination is made that such encroachment does adversely

impact upon the use of the city street or highway, such request shall be

denied. In the event a preliminary determination is made that such

encroachment may have no adverse impact upon the use of the city street

or highway, the legislative body of the city shall, within thirty days

after the issuance of such preliminary finding, hold a public hearing

upon such request, which public hearing shall be conducted upon not less

than ten days notice to the public. In addition to such public notice,

the owners of property, as determined from the last completed assessment

roll, within five hundred feet of the property as measured from the

intersections of the property lines with the city street or highway

shall be given notice by certified mail of such public hearing.

6. If, upon the completion of the public hearing, such legislative

body determines that such front or exterior wall does not interfere or

impede the right of the public to use such city street or highway, the

legislative body may grant to the owner of such property a license to

continue to maintain such front or exterior wall during the period such

wall is in existence; provided however, such city shall have the

authority to revoke such license at any time in the event the

legislative body of the city determines that such city street or highway

will be improved and, as a result of such improvement, the front or

exterior wall will then impede, interfere with or obstruct traffic or

the use of the city street or highway; provided, further, that such

license shall not confirm any right or claim against such city. In such

event, the owner of the property shall be given notice of the proposed

action and shall within the time set forth in the notice, remove such

front or exterior wall from the city street or highway.

7. Upon the abandonment of the building or in the event such building,

because of a lack of care enters a state of disrepair, the owner thereof

shall remove such front or exterior wall upon notice from the city.

8. The authority granted to a city pursuant to subdivisions five, six

and seven of this section may, by local law, be assigned to any

department or agency of the city.