The following numbered papers (NYSCEF Document Numbers) were used in this special proceeding ^[FN1] :

Upon the foregoing papers, having heard testimony on May 14, 2024 and June 17, 2024, and oral argument, and due deliberation having been had, the within special proceeding commenced on October 25, 2019 is determined as follows.

The dispute between the parties herein dates back a good number of years.

Through a signed order to show cause and petition dated December 5, 2019, Petitioner Boerum Hill Property Holdings, LLC, owner of the property located at 157 Smith Street, Brooklyn, New York, commenced a special proceeding pursuant to Real Property Actions and Proceedings Law (RPAPL) § 881, seeking a court-ordered license to enter upon Respondent's adjoining property located at 159 Smith Street, Brooklyn, New York, to perform the following in connection with its development of 157 Smith Street:

(a) installing, monitoring and removing temporary vibration monitors, (b) installing, monitoring and removing temporary roof protections, (c) installing, monitoring, maintaining and removing a temporary sidewalk bridge, (d) installing, monitoring, maintaining and removing overhead protections, and (e) protecting Respondent's Lot Line windows, and further described in the annexed petition, and for such and further relief as this Court deems just and proper, together with the costs and disbursements of this special proceeding (NYSCEF Doc No. 17 at 2).

The Court shall refer to 157 Smith Street, the site of Petitioner's planned development project, as "the Project Premises" and the Respondent's property at 159 Smith Street as "the Adjacent Premises." The project itself shall be referred to as "the Project."

The Court begins its decision by noting that the Project consists of a construction project on the Project Premises which included the demolition of an existing structure (already completed) and the erection of a five-story mixed-use building. Petitioner's building plans were approved by New York City around January 2018.

Petitioner anticipates that access to the Adjacent Premises in connection with the Project can commence as soon as this Court awards a license and that the duration of the portion of the Project requiring access to the Adjacent Premises will last approximately 14 months.

Petitioner retained Yaker Engineering, P.C. to, among other things, create the temporary site safety plan for the Project. Aleksandr Yaker, its principal, testified regarding the site safety plan, which he drafted in or about 2017.

Petitioner claims that access to the Adjacent Property, owned by Respondent, is needed so that a new preconstruction survey can be performed; monitoring equipment can be installed, maintained, and removed; and roof protections can be installed, maintained, and removed. Petitioner contends that it has made repeated good-faith efforts to negotiate a license agreement with Respondent for the required access to the Adjacent Premises but that Respondent has refused to grant consent.

The dispute between the parties congealed when, in 2018, in the course of Petitioner's initial construction work, it demolished the previously-existing building on the Project Premises.^[FN2] Water started leaking into the Adjacent Premises, according to Respondent. Then, in October 2018, during the concrete pouring process, Petitioner drilled tie rods into the adjacent wall of Respondent's building in order to stabilize the form ("tie rod incident") which holds the concrete while it is drying.^[FN3] Respondent claims there were around 100 tie rods placed in the Adjacent Premises' wall.^[FN4] Respondent claims that nobody associated with Respondent gave Petitioner permission to do so. Moreover, after the incident, the Adjacent Premises continued to be damaged from water, which is attributed by Respondent to the drilled-in tie rods. Respondent claims that it is due hundreds of thousands of dollars in damages due to necessitated repairs having to be made. This was due to its compromised building wall, claims Respondent. Respondent commenced litigation in October 2018, against Petitioner, in an action captioned 159 Smith, LLC v Boreum Hill Property Holdings, LLC,^[FN5] and bearing Index No. 520414/2018. The causes of action alleged therein are trespass, injunction, negligence, punitive damages, [*2]revocation of approvals and variances, and violation of New York City Building Code § 3309. Damages were sought.

Petitioner claims that when the tie rod incident took place, construction of Respondent's building was also occurring. At the time, the site superintendent at Respondent's construction, who worked for Respondent's general contractor, authorized Petitioner's drilling the tie rods into the Adjacent Premises, according to Leonid Vays, a member of Petitioner (see NYSCEF Doc No. 81 at 80-81). Drilling tie rods into an adjacent building was typical in New York City construction, testified Vays (see id. at 77-78). Four, maybe six, tie rods were inserted into Respondent's building (see id. at 79).

Petitioner also claims that the water issues alleged by Respondent were caused by Respondent's stopping Petitioner from completing work on the Project Premises. Had the work continued, the wall of Petitioner's building would have blocked the Adjacent Premises' wall from exposure. Petitioner contends that any water damage to the Adjacent Premises did not result from the tie rods being drilled in. Rather, it came from the large hole where the previous building existed at the Project Premises. It collects water when it rains, and this was created by Respondent's preventing the Project from being completed.

Respondent opposes Petitioner's application. This is premised on the tie rod incident, blaming Petitioner for the water damage to the Adjacent Premises, and Petitioner's refusal to make Respondent whole for the damage. Respondent urges the Court to adopt Respondent's skepticism — that Petitioner will not be able to perform its work without causing a major disturbance to the on-premises dental practice of Respondent's principal, Dr. Garry Levingart.^[FN6] Respondent alternatively argues that Petitioner must be ordered to remedy the continued presence of the tie rods, reasonable compensation must be paid to Respondent, a $1,000,000 performance bond should be required of Petitioner, and Respondent should be named as the Certificate Holder on Petitioner's construction liability policy, among other things.

Dr. Levingart disputed that permission had been granted to drill tie rods into his building (see NYSCEF Doc No. 82 at 249, 251, 279). Nobody was authorized to speak for him regarding granting Petitioner permission to do anything to his building (see id. at 249).

Construction on the Project has been stayed ever since an order to show cause containing a temporary restraining order was signed on October 12, 2018, in Index No. 520414/2018. The stay was continued on November 7, 2018; November 21, 2018; and January 14, 2019. On May 24, 2019, Hon. Justice Wavny Toussaint issued a decision and order granting Respondent's motion for a preliminary injunction, which reads as follows:

Plaintiff's Order to Show Cause requesting a preliminary injunction enjoining defendants from engaging in, among other things, any construction activities on that portion of real property located and known as 157 Smith Street, Brooklyn, New York, adjoining or [*3]abutting plaintiff's property located at 159 Smith Street, Brooklyn, New York, is granted.

Defendant Boerum Hill acknowledged that its drilling of 100 holes and attaching tie-rods into plaintiff's exterior wall, without permission, constituted a trespass onto the subject property. The proper procedure would have been for defendants to come to court to obtain a license pursuant to RPAPL 881 prior to conducting any work on plaintiff's property. (North 7-8 Investors, LLC v Newgarden, 43 Misc 3d 623 [Sup. Ct., Kings County 2014).

In light of the above, plaintiff has established a likelihood of success which is not altered by defendants' claim that no physical and/or structural damage to plaintiff's property has occurred. Plaintiff has established that absent the granting of the injunction, plaintiff will suffer irreparable harm, by showing, among other things, that the waterproofing integrity of its building has been compromised and defendant entered on its property without permission even after receiving letters asking it to cease its work. (154 E. 62 LLC v 156 E 62nd Street LLC, 2017 WL 3172805, at *9, 2017 NY Slip Op 31576(U) [Sup. Ct. New York County 2017] aff'd, 159 AD3d 498 [1st Dept. 2018]). Considering defendants' prior intrusion, plaintiff has a reasonable basis to believe in the likelihood of further intrusion. Under the totality of the circumstances, the balancing of equities requires that a preliminary injunction issue until the parties can work out a licensing agreement.

This constitutes the decision and order of the Court. Settle order. (NYSCEF Doc No. 21 at 1-2.)^[FN7]

Motions to the Appellate Division to stay enforcement of the foregoing orders were denied on December 20, 2018; February 28, 2019; and September 27, 2019.

On February 19, 2020, Justice Toussaint issued an order joining the within special proceeding with the action bearing Index No. 520414/2018. On March 14, 2024, the within special proceeding was referred to the undersigned for a hearing.^[FN8]

The stay in the action bearing Index No. 520414/2018 was vacated when Respondent did not post a bond, as ordered by the Court, following a remand from the Appellate Division to conduct a hearing on the amount.

What is now holding up resumption of the Project at the Project Premises is Petitioner's need for access to the Adjacent Premises.

RPAPL § 881 provides:

When an owner or lessee seeks to make improvements or repairs to real property so [*4]situated that such improvements or repairs cannot be made by the owner or lessee 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 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. Such license shall be granted by the court in an appropriate case upon such 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.

The standard for evaluating an RPAPL § 881 application has been stated as follows:

A proceeding pursuant to RPAPL 881 is addressed to the sound discretion of the court, which must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted (see Matter of Queens Coll. Special Projects Fund, Inc. v Newman, 154 AD3d 943, 943-944 [2017]). The factors which the court may consider in determining the petition include the nature and extent of the requested access, the duration of the access, the needed protections for the adjoining property, the lack of an alternative means to perform the work, the public interest in the completion of the project, and the measures in place to ensure the financial compensation of the adjoining owner for any damage or inconvenience resulting from the intrusion (see id. at 944). (Matter of Queens Theater Owner, LLC v WR Universal, LLC, 192 AD3d 690, 690-691 [2d Dept 2021.)

the Supreme Court properly granted the petition pursuant to RPAPL 881 for a license to temporarily enter the appellant's property, since an assessment of the foregoing factors supported the petition. The affidavits of the petitioner's representative and two engineers retained for the project demonstrated that the limited access and placement of structures would protect the appellant's property and would not interfere with the use of the premises, and that the public interest would be served by the development of the project. Moreover, the appellant would be financially protected by the naming of the appellant as an additional insured on the relevant construction insurance policies and by the petitioner's obligation to indemnify the appellant for any loss (see id. at 944-945). Accordingly, the evidence supports the conclusion that the petitioner would suffer an undue hardship if the RPAPL 881 license were denied, whereas the appellant will experience temporary and relatively minor inconvenience as a result of the issuance of the license. (Id. at 691.)

Since "[t]he respondent to an 881 petition has not sought out the intrusion and does not derive any benefit from it . . . [e]quity requires that the owner compelled to grant access should not have to bear any costs resulting from the access" (DDG Warren LLC v Assouline Ritz 1, LLC, 138 AD3d 539, 540 [1st Dept 2016]).

The Court finds that Petitioner never obtained permission to drill tie rods into [*5]Respondent's building from Respondent through its principal, Dr. Levingart. The Court finds Dr. Levingart credible, candid, and forthright when he testified. The Court finds Mr. Vays not completely credible, in part due to his desperation to have the Project proceed forward again due to the financial pressures of the Project having lain dormant for all these years. Mr. Vays was unable to identify a particular person who granted permission to drill into the Adjacent Premises.

The court notes the following testimony:

Q Do you have personal recollection of having a conversation with the general contractor with respect to these form rods that we have been discussing?

A Yes.

THE COURT: Did the site super at 159 did he work for 159 general contractor?

THE WITNESS: That's right.

Q To the best of your recollection, what was discussed between you and the site super?

A We just gave them a heads up that we would be - - we would be wiring rebar together, putting up forms, calling concrete delivery company to pour our walls.

Q What did he say in relation to — or in this conversation?

MR. CONDON: Objection as to what the site super said. It is hearsay.

THE COURT: Sustained.

Q After the conversation with the site super what did - - based upon that conversation what did 157 Smith Street do with respect to the rods?

A We put them in.

THE COURT: What?

THE WITNESS: We put the rods in.

Q And was it your understanding that there was an agreement between 157 and 159 with respect to the rods?

A Absolutely.

THE COURT: What was your understanding about the rods?

THE WITNESS: That they were allowed to go in. (NYSCEF Doc No. 81 at 79, line 19, through 80, line 22.)

Mr. Vays never testified that the site superintendent gave him permission to insert the rods — only that it was his understanding that they could be put in. And, if his testimony is construed to mean that he obtained permission to insert the rods, this is contradicted by the statement in Justice Toussaint's May 24, 2019 order.

In addition, Mr. Vays was evasive in answering questions on cross-examination regarding the alleged agreement he had with the people working on the Adjacent Premises' construction (see NYSCEF Doc No. 81 at 95-97), whether he had a permit to demolish the existing building (see id. at 100-103), and whether a proposed written agreement had been recommended (see id. at 105-112). He did not evince much knowledge about the tie rods (see id. at 128-133).

Even if Mr. Vays testified truthfully that a site superintendent from the general contractor on the construction site of Respondent's building (the Adjacent Premises) agreed to this, it could not bind Respondent (see Edinburg Volunteer Fire Co., Inc. v Dako Emergency Equip. Co., 55 AD3d 1108 [3d Dept 2008] [agent cannot by his own acts imbue himself with apparent authority to act for a principal; apparent authority will only be found where words or conduct of the principal — not the agent — are communicated to a third party, which give rise to a reasonable [*6]belief and appearance that the agent possesses authority to enter into the specific transaction at issue]). "One who deals with an agent does so at his [or her] peril, and must make the necessary effort to discover the actual scope of authority" (ER Holdings, LLC v 122 W.P.R. Corp., 65 AD3d 1275 [2d Dept 2009] [internal quotation marks omitted]). As was stated, "Madison did not have the right, in the absence of an agreement with 17 East Owners, to erect permanent structures extending beyond the property line, either above or below the surface, and thus encroaching on 17 East Owners' property" (Madison 96th Assoc., LLC v 17 E. 96th Owners Corp., 121 AD3d 605, 608 [1st Dept 2014]). Therefore, there was no reasonable basis for Mr. Vays to believe that Dr. Levingart gave permission for tie rods to be drilled into the Adjacent Premises, which Dr. Levingart owned through his LLC.

Moreover, it is a matter of record that Petitioner, as defendant in the lawsuit bearing Index No. 520414/2025, acknowledged to Justice Toussaint that it drilled 100 holes and attached the tie rods without permission (see NYSCEF Doc No. 53). This constituted an admission on the part of Petitioner, as a party is bound by the acts of its attorney (see Forcelli v Gelco Corp., 109 AD3d 244, 248 [2d Dept 2013]; Herz v Transamerica Life Ins. Co., 172 AD3d 1336 [2d Dept 2019]; Kegg v Truck-Rite Distrib. Sys. Corp., 84 Misc 3d 564, 575 [Sup Ct, Kings County 2024]).^[FN9] Petitioner is estopped from denying this.

The status presently of the Adjacent Premises is that there is a physical presence of foreign bodies in its wall, which exists through no fault of Respondent. If this Court were to grant an RPAPL § 881 license to Petitioner, in effect giving it permission to re-start the construction on the Project Premises, this will be determining that the Adjacent Premises will continue to exist with a permanent modification in it. Once a building goes up on the Project Premises, the tie rods will become a permanent part of the Adjacent Premises as they will be sealed inside the wall adjacent to the Project Premises with no ability for Respondent to remove them.^[FN10] An RPAPL § 881 judgment permitting encroachment on an adjacent property cannot legitimize a permanent encroachment (see Matter of Tory Burch LLC v Moskowitz, 146 AD3d 528 [1st Dept 2017] ["the court erred in including those items in the license that would be permanent encroachments on respondent's buildings"]; Matter of Broadway Enters., Inc. v Lum, 16 AD3d 413 [2d Dept 2005] [RPAPL § 881 license properly denied since construction of petitioner's building would entail underpinning of foundation on respondent's premises]).

Furthermore, Bart Rodi, a licensed structural engineer and Respondent's expert, testified with a reasonable degree of certainty in his engineering profession that the form for the Project Premises should have been secured through external diagonal bracing, not drilling tie rods into [*7]the next-door building (see NYSCEF Doc No. 81 at 141). Diagonal braces are used all over New York City, opined Mr. Rodi (see id. at 142-143). The problem with tie rods is that at the location where the drilling took place, there is an access point where moisture can get on the rods. The waterproofing on the outside of the wall is breached. The rods can expand. The rods will rust and cause cracking and damage to the masonry. (See id. at 144-147.) Impressed with Mr. Rodi's professional credentials and engineering knowledge, the Court accepts his expert opinion concerning the tie rods.^[FN11]

Since Petitioner drilled the tie rods into the Adjacent Premises, it is its responsibility to remove them, because otherwise it will have created a permanent encroachment on Respondent's property. Mr. Rodi testified that leaving the tie rods inside the Adjacent Premises compromises the structure, at least to a certain extent (see NYSCEF Doc No. 81 at 169-170). The rods should be removed, the wall needs to be patched, and then waterproofing material needs to be affixed (see id. at 151-156, 169-170; NYSCEF Doc No. 82 at 207-209). Therefore, as part of its application for an RPAPL § 881 license, Petitioner should have submitted to the Court for its review an actual plan as to how it would remove them, drafted by a licensed engineer. It did not do so. The information provided by the proposed licensee must be adequate and sufficiently specific to ensure protection of the respondents' interests (see Matter of Thomas Anthony Holdings LLC v Goodbody, 216 AD3d 538, 539-540 [1st Dept 2023]).

At the hearing, the parties disputed how much it would cost to remove the tie rods and re-seal the wall of the Adjacent Premises. But that ignores an essential legal point and an equally essential factual one. Petitioner bears the burden of proving its entitlement to an RPAPL § 881 license (see Feldman v 3588 Nostrand Ave. LLC, 2020 NY Slip Op 31274[U] [Sup Ct, Kings County 2020]; e.g. Matter of CMCSSG 221E48, LLC v Brigette Assoc., LLC, 2025 NY Slip Op 30983[U] [Sup Ct, NY County 2025]; Phoenix Owners Corp. v Mindel Residential Props. L.P., 2022 NY Slip Op 31284[U] [Sup Ct, NY County 2022]; The Board of Mgrs. of 40 W. 20th St. Condominium v Hajdar Holding Ltd., 2020 NY Slip Op 32126[U] [Sup Ct, NY County 2020]). Petitioner has not included in its papers herein a definitive plan from a licensed engineer as to removal of the tie rods. Mr. Rodi, Respondent's engineering expert, testified that he did not see anything in Petitioner's original plans that indicated tie rods were going to be drilled into the Adjacent Premises (see NYSCEF Doc No. 81 at 139). But now that they are in, they must be removed. Nowhere in the petition commencing this special proceeding is there mention of any plan by Petitioner to remove the tie rods it drilled into the Adjacent Premises. As such, Petitioner has failed to meet its prima facie burden of establishing entitlement to an RPAPL § 881 license.

Yes, the Court heard some expert testimony adduced by Respondent's engineer, Mr. Rodi, regarding how one might go about removing the tie rods and his opinion on the cost. But Petitioner disputes this, and contends that the tie rods could, and should, remain. The Court accepts Mr. Rodi's opinion regarding them. Had Petitioner submitted as part of its application a [*8]written definitive plan for removal of the tie rods, the Court could have considered it. In the absence of such a written definitive plan, however, the Court cannot construct its own remediation plan with technical details (meeting regulatory approval); an engineer should. As stated, "[N]one of the items sought had been memorialized in specific plans filed and approved by the Department of Buildings" (Matter of Tory Burch LLC, 146 AD3d at 529). Were the Court to grant Petitioner's petition, it would be authorizing the enlargement of "the ambit of RPAPL 881 so as to include the performance of an unlawful act on respondent's property" (Foceri v Fazio, 61 Misc 2d 606, 608 [Sup Ct, Queens County 1969]): making permanent the encroachment of the tie rods.

RPAPL § 881 does not mandate that a court grant access to an adjacent property for improvements or repairs to real property. Rather, a "license shall be granted by the court in an appropriate case" (RPAPL § 881 [emphasis added]). RPAPL § 881 is not to be construed as requiring a court to rubberstamp encroachments upon adjoining properties. "[U]tter failure to show facts making the entry necessary would require denial of any such RPAPL application" (McMullan v HRH Constr., LLC, 38 AD3d 206, 207 [1st Dept 2007]). "[A] license may be granted pursuant to RPAPL 881 'in an appropriate case upon such terms as justice requires.' Defendants' assertion on this appeal that they are 'entitle[d]' to a license under RPAPL is risible." (Id.) RPAPL § 881 affords a landowner "the right to seek a license under certain circumstances" (155 West 21st St. v McMullan, 61 AD3d 497, 502 [1st Dept 2009], revd on grounds that sanctions not warranted 24 NY3d 1111 [2015] [emphasis in original]). It is incorrect to argue that one is entitled to a license (see id.) Although the court in 537 West 27th St. Owners LLC v Mariners Gate, LLC (2009 NY Slip Op. 32360[U], *1) granted a license, it acknowledged that "access can be denied where rights are being disregarded."

Given that Petitioner failed to submit documentary evidence of any plans to remediate the encroachment on the Adjacent Premises which occurred during the pre-RPAPL § 881 application construction, which would become permanent were it to be permitted to continue, denial of Petitioner's application is appropriate (see McMullan, 38 AD3d at 206 [encroacher "utterly failed to justify their entry onto the backyard of the subject premises in connection with their construction work on the adjacent property, and repeated interference with plaintiffs' use and enjoyment of the premises by, inter alia, leaving thereon construction materials and debris, removing fences, obstructing an exit from plaintiffs' apartment and bolting closed the fire exit, for which they were issued a violation by the Department of Buildings, and causing damage to plaintiffs' apartment itself as well as the backyard"]).

Hence, Petitioner failed to meet its prima facie burden, and the Project cannot go forward based on the status quo situation with the tie rods inside the Adjoining Premises.

In closing, the Court notes that in this RPAPL § 881 special proceeding, it is not its burden to determine whether Petitioner's pre-special proceeding construction work proximately caused damage to Respondent's property in the nature of water intrusion. This is an issue to be determined in the plenary action in Index No. 520414/2018 (see 27-10 37th Ave., LLC v Nashasara, LLC [2d Dept 2024]). The Court is charged here solely with determining whether Petitioner's plans, as submitted, warrant a license to encroach on Respondent's property. Considering that the plans, as submitted and if implemented, would result in a permanent [*9]encroachment which might cause seepage of water, the Court cannot approve them. This is in accord with the responsibility placed on the Court to consider the nature and extent of the requested access (see Matter of Queens Theater Owner, LLC, 192 AD3d at 690 [2d Dept 2021]). The application, as presented to the Court, is not "an appropriate case" in which a license should be granted (RPAPL § 881).

Accordingly, it is ORDERED AND ADJUDGED that the within petition pursuant to RPAPL § 881 is DENIED, and the within special proceeding is dismissed. The County Clerk shall enter judgment in proper form for Respondent 159 SMITH, LLC, with an address of 159 Smith Street, Brooklyn, New York 11201, as against Petitioner BOERUM HILL PROPERTY HOLDINGS, LLC, with a business address of 2426 McDonald Avenue, Brooklyn, New York 11223, together with costs and disbursements as permitted by statute.