Matter of A&J 917 56th Street, LLC v Raikakos
Attorneys and Parties
Brief Summary
Construction access dispute under RPAPL 881 [allows a property owner to petition for a license to enter the premises of an adjoining owner when such entry is necessary for making improvements or repairs and the adjoining owner has refused such access].
Granted the developer a temporary license to enter the neighbors’ property and awarded the developer attorneys’ fees and costs.
The award of attorneys’ fees and costs to the petitioner.
Equity under RPAPL 881 requires that an owner compelled to grant access not bear costs resulting from the access; petitioners are not entitled to recover their attorneys’ fees for bringing the petition. Although respondents may recover fees in some RPAPL 881 cases, the neighbors did not request fees in Supreme Court, so their request was not considered on appeal.
Background
A&J 917 56th Street, LLC, owner of a lot in Brooklyn, obtained Department of Buildings approval to construct a four-story, seven-family building. To complete the work, it sought temporary access to the adjoining property owned by Thomas and Caroline Raikakos. After the Raikakoses refused, A&J filed a special proceeding under RPAPL 881 for a license to enter to perform construction-related tasks and protections.
Lower Court Decision
The Supreme Court, Kings County, granted the RPAPL 881 petition, authorizing temporary access to the Raikakoses’ property and awarding the petitioner attorneys’ fees and costs.
Appellate Division Reversal
Affirmed as modified. The Appellate Division upheld the grant of a temporary license, finding no abuse of discretion under the reasonableness balancing standard and factors (nature and duration of access, protections, lack of alternatives, public interest, and financial assurances). It deleted the award of attorneys’ fees and costs to the petitioner. The court also noted the appellants’ own request for fees was not preserved because it was not made below.
Legal Significance
Clarifies that in RPAPL 881 proceedings, while courts may grant access based on a reasonableness balancing of hardships and protections, petitioners cannot shift their attorneys’ fees and costs to the adjoining owners compelled to grant access. Respondents may recover fees in appropriate cases, but only if sought in the trial court. The decision reinforces the equitable principle that the burdened neighbor should not finance the petitioner’s access effort.
RPAPL 881 access licenses may be granted when reasonable, but petitioners cannot recover their attorneys’ fees; any respondent fee claim must be made in Supreme Court to be preserved for appeal.