Legislation

§ 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,
engineering 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
applicable, 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;

(d) the term "refuse", "refusal", or "refused" shall be deemed to
include instances where more than one written notice has been served, by
certified mail, on the owner and has not been responded to within sixty
days;

(e) the term "state entity" shall refer to the metropolitan
transportation authority, or its affiliate or subsidiary agencies.

2. When a licensee seeks to make improvements or repairs to real
property so situated that such improvements or repairs cannot be made by
the licensee in a commercially reasonable manner without entering the
premises of an adjoining owner, other than a state entity, and
permission so to enter has been refused, the 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 affidavits, if any,
shall state the facts making such entry necessary and the date or dates
on 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 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 may include:

(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) where
required by code, regulation or local law, any necessary foundation or
building supports, including, 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, party walls; or
(vi) flashing, sealing or other materials or equipment needed to
establish the weather-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 at the licensee's sole option 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
adjoining 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 duration of the license based on 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 and if unable to do so make a request
to the court for an extension of such license;

(c) Where permission includes a right to install, maintain, inspect,
repair, replace or remove any devices, structures, materials or
equipment 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 the licensee, as additional insureds, in
such amounts as are commercially reasonable for the entry to the
adjoining 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 loss of use and enjoyment of the adjoining
premises including diminution in value.

5. The court, in granting a license or otherwise resolving a
proceeding 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;

(b) obligate the licensee to reimburse the adjoining owner for
reasonable fees incurred in connection with the review of relevant
documents for the installation, maintenance, inspection, repair,
replacement or removal of devices, structures, materials or equipment on
the adjoining property; and

(c) insure for damage to property and persons if there is unique,
physical occurrence causing physical damage to property or persons
caused by the access.

6. Notwithstanding subdivision five of this section, where the
adjoining property to which the licensee seeks access is owned, leased
or otherwise occupied by a state entity, the court shall not grant a
license.