S T A T E O F N E W Y O R K
________________________________________________________________________
1305
2023-2024 Regular Sessions
I N S E N A T E
January 11, 2023
___________
Introduced by Sens. COMRIE, SEPULVEDA -- read twice and ordered printed,
and when printed to be committed to the Committee on Judiciary
AN ACT to amend the real property actions and proceedings law, in
relation to access to adjoining property to make improvements or
repairs
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 881 of the real property actions and proceedings
law, as added by chapter 220 of the laws of 1968, is amended to read as
follows:
§ 881. Access to adjoining property to make improvements or repairs.
1. AS USED IN THIS SECTION: (A) THE TERM "DOCUMENT" SHALL INCLUDE BUT
NOT BE LIMITED TO COPIES OF ANY PLANS, SPECIFICATIONS, SURVEYS, ENGI-
NEERING REPORTS OR EVIDENCE OF INSURANCE FOR THE WORK TO BE PERFORMED ON
ADJOINING PROPERTY;
(B) THE TERM "LICENSEE" SHALL REFER TO THE OWNER OR LESSEE, AS APPLI-
CABLE, WHO SEEKS ENTRY ONTO AN ADJOINING PROPERTY;
(C) THE TERM "ADJOINING OWNER" SHALL REFER TO THE OWNER OR ITS LESSEE
OF THE PROPERTY ADJOINING THAT OF THE LICENSEE; AND
(D) THE TERM "REFUSE", "REFUSAL", OR "REFUSED" SHALL BE DEEMED TO
INCLUDE INSTANCES WHERE A REQUEST HAS BEEN MADE IN WRITING AND THERE IS
A SUBSEQUENT ABSENCE OF ANY AFFIRMATIVE RESPONSE WITHIN A COMMERCIALLY
REASONABLE TIME.
2. When [an owner or lessee] A LICENSEE seeks to make improvements or
repairs to real property so situated that such improvements or repairs
cannot be made by the [owner or lessee] LICENSEE IN A COMMERCIALLY
REASONABLE MANNER without entering the premises of an adjoining owner
[or his lessee], and permission so to enter has been refused, the [owner
or lessee seeking to make such improvements or repairs] LICENSEE may
commence a special proceeding for a license so to enter pursuant to
article four of the civil practice law and rules. The petition and affi-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03173-02-3
S. 1305 2
davits, if any, shall state the facts [making such entry necessary and
the date or dates on which entry is sought] SUPPORTING THE ENTRY AND THE
DATE OR DATES UPON WHICH ENTRY IS SOUGHT. ANY ADJOINING OWNER NAMED AS
A PARTY IN SUCH PROCEEDING SHALL, AT THE REQUEST OF THE LICENSEE,
PROVIDE SUCH LICENSEE WITH SUCH INFORMATION AS SHALL ALLOW THE LICENSEE
TO IDENTIFY THE LESSEES OF THE ADJOINING OWNER AND JOIN THEM IN THE
PROCEEDING. Such license shall be granted by the court in an appropriate
case AND upon such OTHER terms as justice requires. The licensee shall
be liable to the adjoining owner [or his lessee] for actual damages
occurring as a result of the entry.
3. THE PURPOSES FOR WHICH A LICENSEE MAY SEEK PERMISSION TO ENTER AN
ADJOINING PROPERTY PURSUANT TO THIS SECTION SHALL INCLUDE, WITHOUT LIMI-
TATION:
(A) PRECONSTRUCTION SURVEY TO DOCUMENT THE EXISTING CONDITIONS OF THE
ADJOINING PROPERTY;
(B) THE INSTALLATION, MAINTENANCE, INSPECTION, REPAIR, REPLACEMENT
AND/OR REMOVAL OF: (I) VIBRATION, CRACK OR OPTICAL MONITORING DEVICES ON
OR WITHIN ANY EXISTING IMPROVEMENTS ON THE ADJOINING PROPERTY; (II)
SHEDS, BRIDGES, NETTING OR OTHER PROTECTIVE COVERING OVER THE ROOF,
FACADES, WINDOWS, SKYLIGHTS, MECHANICAL EQUIPMENT, CHIMNEYS OR OTHER
EXTERIOR PORTIONS OF BUILDINGS OR YARDS, WALKWAYS, DRIVEWAYS OR OTHER
OPEN AREAS ON THE ADJOINING PROPERTY; (III) SCAFFOLDING ON OR OVER THE
ADJOINING PROPERTY; (IV) SHEETING, SHORING, BRACING OR OTHER RETAINING
STRUCTURES NEEDED FOR DEMOLITION, SUPPORT OR EXCAVATION; (V) FOUNDATION
OR BUILDING SUPPORTS, INCLUDING, WITHOUT LIMITATION, WALL TIES, TIE-
BACKS, ANCHORS, STRAPS AND UNDERPINNING, FOR ANY DEMOLITION, NEW OR
EXISTING IMPROVEMENTS ON THE PREMISES OF THE LICENSEE OR ADJOINING
OWNER, INCLUDING, WITHOUT LIMITATION, PARTY WALLS; OR (VI) FLASHING,
SEALING OR OTHER MATERIALS OR EQUIPMENT NEEDED TO ESTABLISH THE WEATH-
ER-PROOF INTEGRITY OF ANY WALL, FOUNDATION OR OTHER EXTERIOR PORTION OF
A BUILDING ON THE ADJOINING PROPERTY;
(C) TEMPORARY PROJECTIONS OR INTRUSIONS INTO THE AIRSPACE OF THE
ADJOINING PROPERTY AS NECESSARY TO COMPLETE THE PROPOSED IMPROVEMENTS OR
REPAIRS;
(D) TEMPORARY OR PERMANENT RELOCATION, EXTENSION OR OFFSETTING OF ANY
CHIMNEYS, VENTS, FLUES, EXHAUSTS OR OTHER ROOFTOP EQUIPMENT ON THE
ADJOINING PROPERTY, AS REQUIRED BY APPLICABLE LAW;
(E) CONSTRUCTION STAGING NECESSARY TO COMPLETE ANY WORK ON THE ADJOIN-
ING PROPERTY; OR
(F) THE UNDERTAKING OF SUCH OTHER MEASURES AS MAY BE REQUIRED BY
APPLICABLE LAW OR GOOD CONSTRUCTION PRACTICE.
4. THE GRANT OF ANY PERMISSION PURSUANT TO THIS SECTION SHALL BE
SUBJECT TO THE FOLLOWING CONDITIONS:
(A) THE EXERCISE OF ANY RIGHT OF ENTRY TO THE ADJOINING PROPERTY SHALL
BE UPON REASONABLE PRIOR NOTICE TO THE ADJOINING OWNER, AS APPLICABLE
AND AS THE COURT MAY ESTABLISH, EXCEPT IN CASES OF AN EMERGENCY POSING
AN IMMEDIATE THREAT TO THE SAFETY OF PERSONS OR PROPERTY;
(B) THE LICENSEE SHALL PROVIDE TO THE ADJOINING OWNER, AS APPLICABLE
AND AS REASONABLY PRACTICABLE BUT NO LATER THAN THE DELIVERY DATE OF THE
APPLICABLE NOTICE REQUIRED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVI-
SION, A GOOD FAITH PROJECTION OF THE DATES AND ESTIMATED DURATION OF ANY
ENTRY TO THE ADJOINING PROPERTY. THE LICENSEE SHALL THEREAFTER MAKE
COMMERCIALLY REASONABLE EFFORTS TO ADHERE TO SUCH DATES AND DURATIONS OR
PROVIDE TIMELY NOTIFICATION OF CHANGES THERETO;
(C) WHERE PERMISSION INCLUDES A RIGHT TO INSTALL, MAINTAIN, INSPECT,
REPAIR, REPLACE OR REMOVE ANY DEVICES, STRUCTURES, MATERIALS OR EQUIP-
S. 1305 3
MENT ON THE ADJOINING PROPERTY, THE GRANTEE LICENSEE SHALL PROVIDE TO
THE ADJOINING OWNER, AS APPLICABLE, COPIES OF ANY RELEVANT DOCUMENTS
PRIOR TO COMMENCEMENT OF SUCH WORK;
(D) THE LICENSEE AND/OR ANY CONTRACTOR, CONSULTANT OR AGENT THEREOF
THAT ACCESSES THE ADJOINING PROPERTY PURSUANT TO THE LICENSE SHALL
PROCURE AND MAINTAIN COMMERCIAL GENERAL LIABILITY INSURANCE FOR DAMAGE
TO PERSONS OR PROPERTY, NAMING THE ADJOINING OWNER AND/OR ITS LESSEE(S),
AS APPLICABLE AND MADE KNOWN TO LICENSEE, AS ADDITIONAL INSUREDS, IN
SUCH AMOUNTS AS ARE COMMERCIALLY REASONABLE FOR THE ENTRY TO THE ADJOIN-
ING PROPERTY. THE LICENSEE SHALL PROVIDE THE ADJOINING OWNER AND ITS
LESSEES, AS APPLICABLE, WITH RELEVANT DOCUMENTS; AND
(E) THE LICENSEE SHALL BE REQUIRED TO REASONABLY COMPENSATE THE
ADJOINING OWNER FOR THE USE AND OCCUPANCY OF THE ADJOINING PREMISES.
5. THE COURT, IN GRANTING A LICENSE OR OTHERWISE RESOLVING A PROCEED-
ING BROUGHT PURSUANT TO THIS SECTION, SHALL BE AUTHORIZED TO:
(A) CONSIDER EVIDENCE THAT EITHER PARTY FAILED TO COMPLY WITH THE
TERMS OF ANY EXISTING OR PREVIOUSLY EXISTING LICENSE RESPECTING THE SAME
PROPERTY, OR FAILED TO RESPOND TO A WRITTEN REQUEST WITHIN A COMMERCIAL-
LY REASONABLE TIME;
(B) OBLIGATE THE LICENSEE TO REIMBURSE THE ADJOINING OWNER FOR REASON-
ABLE ARCHITECT'S AND/OR ENGINEER'S FEES INCURRED IN CONNECTION WITH THE
REVIEW OF RELEVANT DOCUMENTS FOR THE INSTALLATION, MAINTENANCE,
INSPECTION, REPAIR, REPLACEMENT OR REMOVAL OF DEVICES, STRUCTURES, MATE-
RIALS OR EQUIPMENT ON THE ADJOINING PROPERTY;
(C) APPROVE, AND OBLIGATE THE ADJOINING OWNER TO ACCEPT SUCH DOCUMENTS
FOR THE INSTALLATION, MAINTENANCE, INSPECTION, REPAIR, REPLACEMENT OR
REMOVAL OF DEVICES, STRUCTURES, MATERIALS OR EQUIPMENT ON THE ADJOINING
PROPERTY AS THE LICENSEE MAY PRESENT DURING THE PROCEEDING;
(D) APPROVE, AND OBLIGATE THE LICENSEE TO ACCEPT REASONABLE COMMENTS
ON DOCUMENTS PROPOUNDED BY THE ADJOINING OWNER;
(E) INSURE FOR DAMAGE TO PROPERTY AND PERSONS IF THERE IS UNIQUE,
PHYSICAL OCCURRENCE CAUSING PHYSICAL DAMAGE TO PROPERTY OR PERSONS
CAUSED BY THE ACCESS; AND
(F) AWARD REASONABLE ATTORNEYS' FEES TO EITHER PARTY UPON A FINDING
THAT THE OTHER PARTY ACTED IN BAD FAITH OR ENGAGED IN WILLFUL MISCONDUCT
IN SEEKING, DENYING, OR CONDITIONING ITS APPROVAL OF THE RIGHTS OF ENTRY
THAT ARE THE SUBJECT OF THE PROCEEDING.
§ 2. The real property actions and proceedings law is amended by
adding a new section 882 to read as follows:
§ 882. SEVERABILITY. IF ANY PROVISION OF THIS ARTICLE OR THE APPLICA-
TION THEREOF TO ANY PERSON OR CIRCUMSTANCES IS HELD INVALID, THE REMAIN-
DER OF THE ARTICLE AND THE APPLICATION OF SUCH PROVISION TO OTHER
PERSONS OR CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY.
§ 3. This act shall take effect immediately.
