660 Lexington Ave. Dev. LLC v. NYC 55 Corp.

660 Lexington Ave. Dev. LLC v NYC 55 Corp. 2024 NY Slip Op 32233(U) July 2, 2024 Supreme Court, New York County Docket Number: Index No. 150236/2023 Judge: Denise M. Dominguez 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.

INDEX NO. 150236/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/02/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DENISE M DOMINGUEZ PART 35M Justice ---------------------------------------------------------------------------------X INDEX NO. 150236/2023 660 LEXINGTON A VENUE DEVELOPMENT LLC MOTION SEQ. NO. _ ___;;.. 00 -'-I;___ _ Petitioner

- V - DECISION+ ORDER ON NYC 55 CORP MOTION

Respondent

------------------------- . ------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 11, 12, 15, 16, 17, 18, 19, 20,21 , 22, 23, 24,25,26 were read on this motion to/ for JUDGM ENT - DECLARATORY

For the reasons that follow the request by Petitioner to remove an encroachment and

convert this proceeding to a license are denied.

Petitioner moves pursuant to CPLR Art. 4 and Real Property Actions and Proceedings Law

(RP APL) to compel Respondent to remove a portion of a sidewalk shed Respondent erected on a

public sidewalk partially in front of Petitioner's building. Petitioner also seeks converting part of

this proceeding into a license pursuant to RPAPL §881 that would allow for fees to Petitioner.

Respondent opposes.

Although Petitioner commenced this matter as a special proceeding pursuant to CP LR

Article 4, RPAPL §871 permits an action rather than a special proceeding to be commenced when

seeking an injunction directing the removal of structures encroaching upon another's property.

However, the proceedings shall not be dismissed solely because it is not brought in the proper form

(CPLR 103). Accordingly, this proceeding is converted into an action (CPLR 103).

150236/2023 660 LEXINGTON AVENUE DEVELOPMENT LLC vs. NYC 55 CORP Page 1 of 4 Motion No. 001

[* 1] 1 of 4

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Background

Petitioner alleges that it owns a building at 656-660 Lexington A venue, a/k/a 133 East 55th

Street, in Manhattan. Respondent alleges owning the adjacent property, a building at 127 East 55th

Street.

Per the Affidavit of Carlos Casanova, Respondent's General Manager, ("Casanova Aff."),

in 2021 Respondent needed to perform fayade work pursuant to the New York City Department

of Buildings ("DOB") and in accordance with Local Law 11 and FISP. Respondent alleges that

to safely perform the work, Respondent's engineer, Patuxent Engineering, LLC, created a fa9ade

restoration plan which included the erection of a sidewalk shed in compliance with Local Law 11.

A permit for the erection of the sidewalk shed was obtained and the sidewalk shed was erected in

May of 2022.

By letter dated June 21, 2022, counsel on behalf of Petitioner sought the removal of the

sidewalk shed (referred to in the letter as a sidewalk scaffold) or demanded a license agreement.

(NYSCEF Doc. 5, 21 ). By letter dated August 5, 2022, counsel on behalf of Respondent responded

that as the sidewalk shed was required by Local Law 11, it would not be removed and that there

was no requirement for an access agreement (NYSCEF Doc. 6, 22).

As of February 8, 2023, Respondent alleges that that portion of the sidewalk shed that

extended to Petitioner's property was removed, as depicted in a July 2023 photo (NYSCEF Doc.

17, 18).

Request for Injunctive Relief as per RPAPL §871

Herc it is undisputed that the sidewalk shed was erected on a public sidewalk as a

requirement per the DOB and Local Law 11. Additionally, it is also uncontroverted that

Respondent did not seek Petitioner's permission or a license, prior to erecting the sidewalk shed,

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INDEX NO. 150236/2023 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/02/2024

Footnotes

[2] of 4 [* 2] which was partially erected on the public sidewalk abutting Petitioner' s property. It is also uncontroverted that the subject sidewalk shed was removed while this proceeding was pending. As the sidewalk shed was removed during the pendency of this action, the branch of the motion which seeks injunctive relief for the remova_l of the shed is denied as moot (see eg. Krakovski v. Stavros Assocs. , LLC, 173 AD.3d 1146 l2d Dept 2019]). Further, based on the papers, even if the shed was not removed, Petitioner did not demonstrate that the benefit to be gained by compelling the removal would outweigh the harm to Respondent in not complying with city rules and regulations nor that the encroachment upon Petitioner property was more than de minim is (Broser v. Schubach, 85 AD3d 957 [2d Dept 20111; see also City of New York v. 330 Cont'/ LLC, 60 AD3d 226 [1st Dept. 2009]; Nobu Next Door. LLC v. Fine Arts Hous. , Inc~, 4 NY3d 839 l2005l). Request f or License as p er RPAPL §881 Pursuant to RPAPL §881 , a court may "convert" an action for injunctive relief into a proceeding for a license when an owner or lessee seeks to make improvements or repair to its real property and must enter the adjoining property to do so (see Mindel v. Phoenix Owners Corp., 210 AD2d 167 [I st Dept.1994]; CPLR I 03[c]). Here Petitioner argues that Respondent should have moved for a licence and requests this Court make the conversion. Petitioner relies upon DDG Warren LLC v. Assouline Ritz I. LLC,

[138] AD3d 539 11 st Dept 2016] and Matter of Van Dorn l/oldings, LLC v. 152 W. 58th Owners Corp., 149 AD3d 518 [1st Dept 2017]. Yet unlike in DDG Warren LLC and Matter of Van Dorn Holdings, LLC, Petitioner a has not established a trespass. In DDG Warren LLC, the trespass did not involve a shed on a public sidewal k abutting the neighboring property. Rather, the repairs required access and use of the 150236/2023 660 LEXINGTON AVENUE DEVELOPMENT LLC vs. NYC 55 CORP Page 3 of 4 Motion No. 001 [* 3] 3 of 4 neighboring residential property including a ground floor apartment with an outdoor garden and a penthouse unit that caused a " substantial interference with the use and enjoyment of the neighboring property" Similarly, in Matter of Van Dorn Holdings, LLC, the trespass did not constitute a sidewalk shed but access to the neighboring property to erect a scaffold in the adjacent courtyard. Accordingly, the request pursuant to RP /\PL 881 is denied. Therefore, it is hereby ORDERED that the action is denied in its entirety and dismissed; and it is further ORDERED that Petitioner serve all partied and the Clerk of the Court with notice of entry within 20 days. This constitutes the Decision and Order of the court. 7/2/2024 DATE DENISE M DOMINGUEZ, J.S.C. ~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION GRANTED □ DENIED GRANTED IN PART 0 OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE 150236/2023 660 LEXINGTON AVENUE DEVELOPMENT LLC vs. NYC 55 CORP Page 4 of 4 Motion No. 001 [* 4] 4 of 4