Westbury Realty Assocs. LLC v. Relide Realty Co.

Supreme Court, New York CountyDec 8, 2011
112635/11 (N.Y. Sup. Ct. 2011)
112635/112011 N.Y. Slip Op. 52237



Westbury Realty Associates, LLC, Petitioner, v. Relide Realty Co., LLC, Respondents.

Jr., J.

The emergency application by petitioner for an order pursuant to R.P.A.P.L. § 81, granting petitioner, its agents, contractors, and employees a license to enter upon respondent's premises located at 18-22 John Street, New York, New York 10038, for a period of twenty-four (24) months until improvements are completed on petitioner's property, is granted.

Petitioner is the owner of the premises located at 24 John Street, New York, New York 10038. Respondent is the owner of the premises located at 18-22 John Street, New York, New York 10038. The entire westerly wall of petitioner's premises is adjacent to respondent's premises. Petitioner wishes to improve and expand its three to six story building to a twenty-one story building. Petitioner requires access to respondent's premises in order to complete construction.

On August 11, 2011, petitioner made a written request to respondent for permission to access respondent's premises. Respondent denied that request. Petitioner argues that it is entitled to a license to enter upon respondent's premises pursuant to R.P.A.P.L. § 81. Petitioner asserts that it has obtained all the necessary permits and approvals from the New York City Department of Buildings. Work has begun on the portions of the project that did not require access to respondent's premises. At this time, work is ready to begin on the building's steel structure. Petitioner contends that without access to respondent's premises, work will halt at an enormous financial loss. Petitioner also asserts that it is willing to pay for any and all damages which may occur as a result of the license and petitioner has already acquired insurance to cover any potential damage.

Respondent argues that under to R.P.A.P.L. § 81, petitioner should not be granted a license to access respondent's property unless petitioner can show that it has taken adequate precautions to protect respondent's premises from injury or to ensure that respondent's use and enjoyment of its premises will not be hindered for longer than it is necessary. Respondent argues that petitioner has: 1) set forth inadequate roof and elevated protection plans: 2) incomplete plans and calculations to account for the proper placement and dispersal of loads from petitioner's tower and mobile cranes; and 3) no plans to extend respondent's exhaust stack.

Respondent submits a letter dated October 19, 2011, from GS Engineering, P.C. which outlines the results of a generator exhaust study at respondent's premises. The letter states that the New York City Mechanical Code of 2008, chapter 8, section 801.1.1.1 and the New York City Fuel Gas Code of 2008, chapter 5, section 501.1.1.1 mandate that "[w]henever a building is erected, enlarged, or increased in height so that any portion of such building, except chimneys or vents, extends higher than the top of any previous constructed chimneys or vents within 100 feet, the owner of such new or altered building shall have the responsibility of altering such chimneys or vents...." As such, respondent argues that petitioner has the responsibility of extending the existing flue for the purpose of raising the vent termination point.

R.P.A.P.L. § 81 provides that a license may be granted to access to an adjoining property if permission by the adjoining property owner or lessee has been refused. Licenses should "only be granted when necessary, under reasonable conditions, and where the inconvenience to adjacent property owner is relatively slight compared to hardship of his neighbor if license is refused." Chase Manhattan Bank (Nat. Ass'n.) v. Broadway, Whitney Co. , 294 N.Y.S.2d 416, 420 (1968).

Several issues were resolved after the order to show cause was filed. On the record before this court, respondent argued that its engineers recommended at least three inches of plywood be used for roof protection and for stiffer pipes to be used for the elevated protection. Respondent emphasized that it had no desire to stop construction and is merely looking to ensure adequate protection for its premises. Per respondent's request, petitioner agreed to make those changes. The only issue before the court is whether petitioner is obligated to extend respondent's existing emergency generator exhaust flue.

The New York City Mechanical Code of 2008, chapter 8, sections 804.3.5, 811.2, and 811.3 outlines the vertical termination requirements for exhaust gases from internal combustion engines. Respondent's emergency generator is a No. 2 Diesel Fuel burning internal combustion engine that has an exhaust temperature of 950 degrees Fahrenheit. "Chimneys serving appliances between 600 degrees Fahrenheit and 1000 degrees Fahrenheit shall extend at least 10 feet above the highest construction...whether the construction is on the same building as the chimney or on another building." New York City Charter § 804.3.5.

This court finds that respondent's exhaust flue must be extended, at petitioner's expense, in order to be in compliance with the New York City Mechanical Code and the New York City Fuel Gas Code. Accordingly, it is hereby,

ADJUDGED, that the emergency application by petitioner for a license pursuant to R.P.A.P.L. § 81 is granted.