N.Y. Real Property Actions & Proceedings Law § 881: Access to adjoining property to make improvements or repairs

§ 881. Access to adjoining property to make improvements or repairs.

1. As used in this section: (a) the term "document" shall include but

not be limited to copies of any plans, specifications, surveys,

engineering reports or evidence of insurance for the work to be

performed on adjoining property;

(b) the term "licensee" shall refer to the owner or lessee, as

applicable, who seeks entry onto an adjoining property;

(c) the term "adjoining owner" shall refer to the owner or its lessee

of the property adjoining that of the licensee;

(d) the term "refuse", "refusal", or "refused" shall be deemed to

include instances where more than one written notice has been served, by

certified mail, on the owner and has not been responded to within sixty

days;

(e) the term "state entity" shall refer to any department, division,

agency, office, public authority, or public benefit corporation of the

state of New York, or any affiliate or subsidiary agencies of such

department, division, agency, office, public authority, or public

benefit corporation.

2. When a licensee seeks to make improvements or repairs to real

property so situated that such improvements or repairs cannot be made by

the licensee in a commercially reasonable manner without entering the

premises of an adjoining owner, other than a state entity, and

permission so to enter has been refused, the licensee 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. Any adjoining owner named as a party in such

proceeding shall, at the request of the licensee, provide such licensee

with such information as shall allow the licensee to identify the

lessees of the adjoining owner and join them in the proceeding. Such

license shall be granted by the court in an appropriate case and upon

such other terms as justice requires. The licensee shall be liable to

the adjoining owner for actual damages occurring as a result of the

entry.

3. The purposes for which a licensee may seek permission to enter an

adjoining property pursuant to this section may include:

(a) Preconstruction survey to document the existing conditions of the

adjoining property;

(b) The installation, maintenance, inspection, repair, replacement

and/or removal of: (i) vibration, crack or optical monitoring devices on

or within any existing improvements on the adjoining property; (ii)

sheds, bridges, netting or other protective covering over the roof,

facades, windows, skylights, mechanical equipment, chimneys or other

exterior portions of buildings or yards, walkways, driveways or other

open areas on the adjoining property; (iii) scaffolding on or over the

adjoining property; (iv) sheeting, shoring, bracing or other retaining

structures needed for demolition, support or excavation; (v) where

required by code, regulation or local law, any necessary foundation or

building supports, including, wall ties, tie-backs, anchors, straps and

underpinning, for any demolition, new or existing improvements on the

premises of the licensee or adjoining owner, including, party walls; or

(vi) flashing, sealing or other materials or equipment needed to

establish the weather-proof integrity of any wall, foundation or other

exterior portion of a building on the adjoining property;

(c) Temporary projections or intrusions into the airspace of the

adjoining property as necessary to complete the proposed improvements or

repairs;

(d) Temporary or at the licensee's sole option permanent relocation,

extension or offsetting of any chimneys, vents, flues, exhausts or other

rooftop equipment on the adjoining property, as required by applicable

law;

(e) Construction staging necessary to complete any work on the

adjoining property; or

(f) The undertaking of such other measures as may be required by

applicable law or good construction practice.

4. The grant of any permission pursuant to this section shall be

subject to the following conditions:

(a) The exercise of any right of entry to the adjoining property shall

be upon reasonable prior notice to the adjoining owner, as applicable

and as the court may establish, except in cases of an emergency posing

an immediate threat to the safety of persons or property;

(b) The duration of the license based on a good faith projection of

the dates and estimated duration of any entry to the adjoining property.

The licensee shall thereafter make commercially reasonable efforts to

adhere to such dates and durations and if unable to do so make a request

to the court for an extension of such license;

(c) Where permission includes a right to install, maintain, inspect,

repair, replace or remove any devices, structures, materials or

equipment on the adjoining property, the grantee licensee shall provide

to the adjoining owner, as applicable, copies of any relevant documents

prior to commencement of such work;

(d) The licensee shall provide the adjoining owner and its lessee or

lessees, as applicable and as made known to the licensee by the

adjoining owner, with relevant documents confirming the licensee and/or

any contractor, consultant or agent thereof that accesses the adjoining

property pursuant to a license granted pursuant to this section

maintains commercial general liability insurance, provided such

documents are sufficient to enable the adjoining owner and/or its lessee

or lessees, as applicable, to make a third-party claim under such

insurance in the event that such licensee and/or any contractor,

consultant or agent thereof damages the adjoining property or any

persons thereupon; and

(e) The licensee shall be required to reasonably compensate the

adjoining owner for the loss of use and enjoyment of the adjoining

premises including diminution in value.

5. The court, in granting a license or otherwise resolving a

proceeding brought pursuant to this section, shall be authorized to:

(a) consider evidence that either party failed to comply with the

terms of any existing or previously existing license respecting the same

property;

(b) obligate the licensee to reimburse the adjoining owner for

reasonable fees incurred in connection with the review of relevant

documents for the installation, maintenance, inspection, repair,

replacement or removal of devices, structures, materials or equipment on

the adjoining property; and

(c) insure for damage to property and persons if there is unique,

physical occurrence causing physical damage to property or persons

caused by the access.

6. Notwithstanding subdivision five of this section, where the

adjoining property to which the licensee seeks access is owned, leased

or otherwise occupied by a state entity, the court shall not grant a

license.