Matter of A&J 917 56th Street, LLC v Raikakos
Attorneys and Parties
Brief Summary
Construction/real estate development—developer sought a temporary access license under RPAPL 881 [allows a property owner to petition for a court-ordered temporary license to enter an adjoining property when access is necessary for making improvements or repairs and the neighbor has refused access].
Granted the RPAPL 881 petition for temporary access and awarded the petitioner attorneys' fees and costs.
The award of attorneys' fees and costs to the petitioner.
Under equitable principles applied in RPAPL 881 proceedings, the adjoining owner compelled to grant access should not bear costs resulting from the access; therefore, a petitioner is not entitled to recover its attorneys' fees for bringing the petition. The appellants' own request for fees was denied because they did not seek attorneys' fees in the Supreme Court.
Background
A&J 917 56th Street, LLC owns property in Brooklyn adjacent to the Raikakos residence. After obtaining New York City Department of Buildings approval to construct a four‑story, seven‑family building, A&J sought temporary access to the Raikakos property to perform construction-related work. The Raikakoses refused access, and A&J commenced a special proceeding under RPAPL 881 [allows a property owner to petition for a court-ordered temporary license to enter an adjoining property when access is necessary for making improvements or repairs and the neighbor has refused access]. The court applies a reasonableness standard that balances the applicant’s hardship against the neighbor’s inconvenience, considering factors like scope and duration of access, protections for the adjoining property, alternatives, public interest, and financial safeguards.
Lower Court Decision
The Supreme Court, Kings County, granted A&J a temporary license to enter the Raikakos property and awarded A&J its attorneys' fees and costs.
Appellate Division Reversal
Modified on the law to delete the award of attorneys' fees and costs to the petitioner; otherwise affirmed the grant of the RPAPL 881 license. The court held the license was properly granted under the reasonableness balancing, but petitioners in RPAPL 881 proceedings are not entitled to their attorneys' fees. The appellants’ request for their own fees was not considered because it was not raised in the trial court.
Legal Significance
Reaffirms that in RPAPL 881 proceedings, courts may grant necessary temporary access based on a reasonableness balance of hardships, but petitioners cannot shift their attorneys' fees to the adjoining owner. Only respondents may potentially recover fees under equitable principles, and such requests must be preserved by seeking them in the trial court.
Developers can obtain court‑ordered temporary access under RPAPL 881 when necessary, but they cannot recover their attorneys' fees for obtaining that access; adjoining owners must request their fees in the trial court to preserve the issue.