Plaintiffs commenced this action, inter alia, to recover damages arising from the construction of a structural underpinning beneath plaintiffs' premises without their permission.

Plaintiffs are the owners of the premises located at 86-11 51st Avenue in Elmhurst, New York. Defendant Broadway Enterprises, Inc. owns the adjacent premises located at 86-09 51st Avenue. Subsequent to defendant owner's acquisition of the premises adjacent to plaintiffs' premises, defendant owner obtained a permit from the New York City Department of Buildings to construct a three-family home on its property. Thereafter, defendants entered plaintiffs' property for the purpose of underpinning the southern wall of a building on plaintiffs' property. The underpinning of plaintiffs' property and a newly constructed adjacent three-family residence is complete. The underpinning involved the pouring of concrete in permanent four foot wide strips beneath the foundation of plaintiffs' building. Without the underpinning, defendants would have had to build a foundation using cantilevering.

In 2003, after the underpinning was approximately 85% complete, defendant owner [*2]brought a special proceeding, pursuant to RPAPL section 881, for a judgment granting it a license to complete the subject underpinning. Within the context of the special proceeding, defendant owner asserted that plaintiffs gave verbal permission for the subject underpinning but subsequently withdrew their permission and complained to the Department of Buildings that consent was not given when defendant owner refused plaintiffs' demand for money. Plaintiffs retorted that they never gave consent for construction of the underpinning on their premises.

On September 2, 2003, the court (Grays, J.) determined that RPAPL 881 does not authorize the court to issue a license for a permanent encroachment such as underpinning and denied defendant owner's request for approval of an underpinning. The determination was affirmed on appeal (Broadway Enterprises, Inc. v Lum, 16 AD3d 413 [2005]).

Defendants claim that plaintiffs' consent to the underpinning has become unnecessary because the underpinning and a newly constructed residential premises have been completed. According to defendants, the newly constructed residential premises awaits a certificate of occupancy from the Buildings Department which will only be issued upon the consent of plaintiffs for the underpinning or a judicial declaration that plaintiffs' consent is not necessary. Defendants now seek a declaration that "plaintiffs' consent to the underpinning is unnecessary as the underpinning has been completed and this issue is moot; the only remaining issue is alleged damages."

Since defendants' answer fails to set forth a counterclaim for declaratory judgment, the request for declaratory relief may not be entertained and is, therefore, denied (see CPLR 3017(a), (b); CPLR 3018(b); cf., DeMarco-McClusky v DeMarco, 11 Misc 3d 1058 [2004]). In any event, defendants' contention that plaintiffs' consent to the permanent encroachment is unnecessary in light of the completion of the structure is wholly without merit and lacks a basis in law. Defendant owner had no right to construct the underpinning beneath plaintiffs' property without their consent (Katimbang v 719 Ocean View Avenue LLC, 13 Misc 3d 1215[A] [2006]), and the court cannot sanction the performance of this unlawful act (see, Foceri v Fazio, 61 Misc 2d 606 [1969]). In light of the foregoing, defendants' request to post an undertaking in the amount of $50,000.00 in exchange for a declaration that plaintiffs' consent to the encroachment is unnecessary is similarly denied.

That branch of defendants' motion which seeks to dismiss the complaint for failure to prosecute and failure to comply with their Notice for Discovery and Inspection, dated January 26, 2004, is also denied. To the extent they have not already done so, plaintiffs shall comply with the demands contained within defendants' Notice for Discovery and Inspection within twenty (20) days after service upon plaintiffs of a copy of this order with notice of entry. The parties are directed to appear for a conference in the Preliminary Conference Part located at 88-11 Sutphin Boulevard, Jamaica, New York, at 11:30 A.M., on Tuesday, March 20, 2007.

Dated: February 20, 2007 [*3]

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J.S.C.