Matter of DTBG 390 Fifth Ave. Owner LLC v. Victory Holding Corp.

Matter of DTBG 390 Fifth Ave. Owner LLC v Victory Holding Corp. 2024 NY Slip Op 33601(U) October 7, 2024 Supreme Court, Kings County Docket Number: Index No. 518289/2024 Judge: Aaron D. Maslow Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 10/08/2024 10:24 AM INDEX NO. 518289/2024 NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 10/08/2024

At the IAS Part 2 of the Supreme Court of the State of New York held in and for the County of Kings at 320 Jay Street, Brooklyn, NY, on the 7th day of October, 2024.

HONORABLE AARON D. MASLOW, J.S.C

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------- X In the Matter of the Application of

DTBG 390 FIFTH A VENUE OWNER LLC, Index No. 518289/2024

ORDER-JUDGMENT Petitioner,

NYSCEF Document FOR AN ORDER AND JUDGMENT PURSUANT Nos. used on this TO ARTICLE 4 OF THE CIVIL PRACTICE LAW special proceeding: AND RULES AND SECTION 881 OF THE REAL 1-27. PROPERTY ACTIONS AND PROCEEDINGS LAW FOR ACCESS TO ADJOINING PROPERTY

-against-

VICTORY HOLDING CORPORATION,

Respondent.

--------------------------------------------- X Petitioner DTBG 390 FIFTH AVENUE OWNER LLC ("Petitioner'') having duly petitioned

this Court for an Order pursuant to Section 881 of the Real Property Actions and Proceedings Law

("RPAPL") for a license to allow Victory Holding Corporation ("Respondent") to maintain a

longstanding sidewalk shed ("Sidewalk Shed") on Petitioner's property located at 390 Fifth

Avenue, Brooklyn, New York ("Petitioner's Property"), it is hereby

NOW, upon reading and filing of the Order to Show Cause dated July 16, 2024, the

Verified Petition dated July 5, 2024, the Affirmation of Allison Beer dated July I, 2024, and the [* 1] 1 of 4

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exhibits thereto, the Memorandum of Law in Support dated July 5, 2024, the Affirmation in

Opposition of Gerard Agard dated September 24, 2024, and the exhibits thereto, the matter

having been argued on the record virtually via Teams, and due deliberation having been had; it is

hereby

ORDERED and ADJUDGED that the within application pursuant to Section 881 of

the RP APL is granted; and it is further

ORDERED that Respondent is hereby granted a license pursuant to RP APL § 881 to

enter that portion of Petitioner's Property necessary for the purpose of maintaining the Sidewalk

Shed; and it is further

ORDERED that the granting of such license is subject to the following terms

and conllitions: 1. Respondent shall be entitled to such license for a period of 12 months, commencing upon the entry of this Order. If the Sidewalk Shed has not been removed after the 12 month term

expires, the Petitioner or Respondent may apply to the Court for an extension of such license, which

extension will be granted only for good cause shown and with the potential increase of license fees

to be decided upon the granting of such extension.

2. Respondent is directed to pay Petitioner a monthly license fee in the sum of $1,000

per month commencing retroactively on October 1, 2019, when the Sidewalk Shed was first

installed, until the work under the license is completed. The license fees accrued to date shall be

paid by Respondent to Petitioner within ten (10) days of entry of this Order. Thereafter, the license

fees shall be paid no later than the fifth day of each month in advance.

3. Respondent is solely responsible for the installation, maintenance, and removal of

the Sidewalk Shed.

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4. At the completion of the license term, Respondent must return Petitioner's property

within the license area to its original condition, and all materials used in construction and any

resultant debris shall be removed from the license area.

5. Respondent shall not interfere with Petitioner's necessary access to its property and

quality of life, and shall take the necessary steps, measures and precautions to prevent any damage

to Petitioner's property.

6. Respondent shall procure a commercial general liability policy insuring its work

with limits ofno less than $5 million and excess limits ofno less than $10 million, and Respondent

shall name Petitioner as an additional insured on its policy insuring work arising from Respondent's

project, and such coverage shall remain in place until the completion of Respondent's work.

Respondent shall, within ten (10) days of entry of this Order, submit proof of insurance in

compliance with this Order to Petitioner.

7. Respondent shall be liable to Petitioner for any damages which it may suffer as a

result of the granting of this license and all damaged property shall be repaired at the sole expense

of Respondent.

8. Respondent shall defend, indemnify and hold harmless Petitioner, to the fullest

extent permitted by law, for any liability, claims, damages, or losses, including attorneys' fees, that

Petitioner may incur as a result of Respondent's work, whether or not caused by the negligence of

Respondent or its employees, agents, contractors or subcontractors.

9. Respondent shall cure any violation placed against Petitioner's property by a

governmental or administrative agency as a result of Respondent's work, and Respondent shall

reimburse Petitioner for any fines or penalties imposed as a result of such violations.

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10. Respondent shall reimburse Petitioner's reasonable attorneys' fees and professional

fees incurred in connection with this Petition and this proceeding within ten (I 0) days of the

entry of this Order and receipt of such invoices from Petitioner.

The Court issues the within order and judgment due to the fact that removal of the shed

would constitute a potential danger to passersby; the shed impairs complete and orderly access to

Petitioner's building; Respondent never obtained a license from Petitioner; and the shed has

remained standing for years with no projected removal date.

While the procedural posture of this RP APL 881 special proceeding is unusual in that it

was commenced by the owner of the realty encroached upon, Petitioner does possess standing

(see Mindel v Phoenix Owners Corp., 210 AD2d 167 [1st Dept 1994]; Mehdi Dilmaghani & Co.,

Inc. v Spa Health Clubs, Inc., 45 AD2d 1021 [2d Dept 1974]; Ponito Residence LLC v 12th St.

Apt. Corp., 38 Misc 3d 604 [Sup Ct, NY County 2012]). It is noted that despite IAS Part 2's

Rules requiring that a proposed order be submitted and despite notice of same having been

posted on August 26, 2024 (see NYSCEF Doc No. 19), Respondent failed to submit one.

ORDERED that this constitutes the decision, order, and judgment of the court.

ENTER:

~ Hon. Aaron D. Maslow Justice of the Supreme Court of the State of New York

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