This is a proceeding under Real Property Actions and Proceedings Law (RPAPL) 881. Petitioner, 550 W21 Owner LLC, seeks a license to enter the premises of a condominium building managed by respondent Board of Managers of 120 Eleventh Avenue, including a terrace appurtenant to a penthouse condominium unit owned by respondent Atilla Properties, LLC. The petition for an RPAPL 881 license is granted on the terms set forth below.

RPAPL 881 provides that when (i) a property-owner seeks to make improvements or repairs to the owner's property; (ii) undertaking those improvements or repairs entails entering the premises of an adjoining owner; and (iii) permission to enter has been refused, the property-owner may bring a special proceeding to seek a court-issued license to enter. In determining whether to grant the requested license, "courts generally apply a standard of reasonableness" [*2]based on a balancing of the parties' interests. (Matter of Board of Mgrs. of Artisan Lofts Condominium v Moskowitz, 114 AD3d 491, 491 [1st Dept 2014].) Courts should issue a license "when necessary, under reasonable conditions, and where the inconvenience to the adjacent property owner is relatively slight compared to the hardship of his neighbor if the license is refused." (Id. [internal quotation marks omitted].)

In opposing the petition, respondents argue first that the refusal-of-entry condition to issuance of the license has not been satisfied because respondents have not expressly refused entry; rather, respondents say, petitioner was merely unwilling to agree to respondents' proposed terms for entry.^[FN1] (See NYSCEF No. 43 at 6-7.) Respondents provide no authority, however, for the proposition that an express refusal is required before a court may grant a § 881 license. And the record reflects that petitioner did not bring this proceeding until after genuine and substantial negotiations between the parties over the terms of an entry license had reached an impasse. The court concludes that the failure of negotiations in these circumstances constitutes a constructive refusal by respondents that supports petitioner's request for issuance of an RPAPL 881 license. (See Matter of North 7-8 Investors, LLC v Newgarden, 43 Misc 3d 623, 631-632 [Sup Ct, Kings County 2014] [rejecting respondent's argument "that he has not refused Petitioner access, but that Petitioner had refused to agree to reasonable terms for the license"]; accord Matter of First and River LLC v Board of Managers of the Horizon Condominium, 2024 NY Slip Op 34319[U], at *1-2 [Sup Ct, NY County 2024] [granting § 881 petition in proceeding brought after "negotiations between the parties fell apart regarding the [p]roject"].)

Respondents argue that if a license is to be issued, respondents should be awarded more in fees than petitioners have offered.

1. Petitioner takes the position, for example, that a license should be issued on condition of paying each respondent a $3,500 monthly license fee. Respondent Atilla argues that because the proposed rooftop protections on its penthouse terrace will diminish the aesthetic appeal and enjoyment of the terrace, harming the resale or rental value of the unit, petitioner should have to pay it an $8,000 monthly fee instead of $3,500. (See NYSCEF No. 40 at ¶ 11.) The court concludes instead that a monthly fee of $4,500 is sufficient.

Atilla does not provide valuation evidence to support its contention that an $8,000 monthly fee is warranted in light of the burden on its property; merely the unsupported affidavit of its principal. (See Matter of 18 W. 55th St. LLC v Pleiades House LLC, 230 AD3d 990, 991 [1st Dept 2024] [rejecting respondent's contention that a higher license fee was warranted absent "specific documentary evidence or expert testimony as to the actual value of the property, the [*3]diminution in value caused by petitioners' construction project, or any evidence of the costs it potentially could bear in relation to the project"].) Nor do § 881 precedents in the context of penthouses/terraces otherwise support Atilla's request for an $8,000 monthly fee. (See e.g. Matter of 18 W. 55th St. LLC, 230 AD3d at 990-991 [affirming $4,500 monthly license fee for temporary protections to rooftop and terrace]; Matter of Panasia Estate, Inc v. 29 West 19 Condominium 204 AD3d 33, 37 [1st Dept 2022] [approving license fees of $3,000 and $1,000 a month for protections installed on apartment terraces]; Matter of First and River LLC v Board of Managers of the Horizon Condominium, 2024 NY Slip Op 34319[U], at *3 [Sup Ct, NY County 2024] [awarding $4,000 a month license fee for protections installed on an adjoining roof and terrace].)

2. Respondents argue that any license issued should include an award of reasonable attorney and professional fees incurred in negotiating the license agreement and responding to this petition. This court agrees.

Courts issuing § 881 licenses ordinarily award respondents/licensors reasonable attorney fees and engineering and other professional fees. A compulsory licensor, the Appellate Division has explained, should be awarded those fees because it would be unfair to put a respondent/licensor in the "position of either having to incur the costs of a design professional to ensure petitioner's work will not endanger his property or having to grant access without being able to conduct a meaningful review of petitioner's plans." (Matter of Panasia Estate, 204 AD3d at 37, quoting Matter of Van Dorn Holdings, LLC v 152 W. 58th Owners Corp., 149 AD3d 518, 519 [1st Dept. 2017].) Attorney/professional fees in this context, therefore, "are not an incident of litigation but rather part of the process of negotiating a license agreement." (Id. at 38.)

Petitioner asserts, though, that in this particular case, attorney and professional fees should be denied because respondents were assertedly negotiating in bad faith. (See NYSCEF No. 14 at 20.) This argument is unpersuasive. That respondents sought reimbursement of fees that petitioner considered to be excessive and rejected terms that petitioner considered to be reasonable does not in itself establish that respondents were acting in bad faith. And the context of the trial-court ruling on which petitioner relies most heavily, 26 East 78 Street LLC v Mark Propco LLC (2021 WL 4198088 [Sup Ct, NY County Sept. 15, 2021]), are markedly different from the facts of this case. There, the court took into account that respondent had been demanding $600,000 in escrow deposits and $120,000 in monthly fees in exchange for granting petitioner a license to place a roof scaffold. (See id. at *2.) Petitioner does not identify any remotely comparable negotiating positions taken by respondents here.

Respondents are entitled to an award of attorney fees and professional fees incurred in pre-proceeding license negotiations and in responding to this petition. Respondents shall, within 30 days of entry of this order, move on notice, supported by appropriate documentation, to determine the amount of those fees.^[FN2]

3. Respondents also seek to impose on petitioner the cost of paying for a regular exterminator (on the assumption that the construction project will attract vermin) and for security cameras (on a belief that the project protections for respondents' building will make it easier for intruders to enter). Respondents provide no authority, however, for the proposition that [*4]it is appropriate to require a § 881 petitioner to pay these types of costs as a condition of a license to enter.^[FN3]

4. Finally, respondents ask this court to require petitioner to deposit $100,000 into escrow to "cover non-payment of the license fees or damages to the Building and other breaches of the license agreement, with an obligation to replenish such amount." (NYSCEF No. 43 at 14.) But respondents have not established either that concerns exist about petitioner's ability to pay the monthly license fee during construction (or any post-project damages), or that petitioner has a history of performing unlicensed work that might warrant setting aside funds in escrow for repairs.^[FN4] (Cf. Matter of 268 W. 12th Owners Corp. v Kunst, 239 AD3d 474, 475 [1st Dept 2025] [affirming imposition of escrow requirement].)

1. With respect to protections for respondents' property, respondents contend that Building Code § 3309.10 requires protection for the seventh-floor roof of respondents building, because that roof is less than 20 feet of horizontal distance away from petitioner's construction site. (See NYSCEF No. 43 [mem. of law]; NYSCEF No. 25 at ¶ 20 [engineer's affidavit].) It is undisputed that petitioner's site-safety plans do not include protections for the seventh-floor roof. (See e.g. NYSCEF No. 12 at 11, SSP-120.02 [site-safety drawing dated Feb. 11, 2025, showing extent of roof protections]; NYSCEF No. 47 at 11, SSP-120.03 [site-safety drawing dated April 11, 2025, showing extent of roof protections].) Respondents therefore ask this court to require the installation of roof protections for the seventh-floor roof as a term of any § 881 license.

In an affidavit submitted on reply, petitioner's engineer represents that the Building Code does not require protection for the seventh-floor roof because that "Roof is located twenty feet and four and a half inches (20'4.5") from the Project Premises," and is therefore outside the protection-distance set by § 3309.10. (NYSCEF No. 46 at ¶ 13.) But the affidavit does not cite to a document in the record (whether an engineering or site-safety drawing, or otherwise) reflecting that claimed distance. And the site-safety drawings submitted by petitioner on reply appear on their face to indicate that the seventh-floor roof is within 20 feet of horizontal distance of petitioner's project. (See e.g. NYSCEF No. 47 at 11.) This court concludes, therefore, that petitioner must install Code-compliant protection for the seventh-floor roof as a condition of any § 881 license.

2. Respondents also challenge the sufficiency of the vibration monitoring and (lack of) groundwater monitoring envisioned in petitioner's excavation plans. Respondents argue that petitioner should be required to set a lower threshold for permissible excavation-related vibration and should be required to monitor groundwater levels. This court disagrees.

Petitioner represents that its vibration-monitoring plan and vibration thresholds are Code-compliant and have been formally approved by the New York City Department of Buildings (DOB). Respondents' submissions on this motion, although emphasizing that respondents believe more monitoring and protections to be warranted, do not dispute that petitioner's proposed monitoring/thresholds have been approved by the DOB. And the only vibration-related conflict with the Building Code that respondents identify is that petitioner's monitoring plan is (assertedly) not specific to the circumstances of respondents' building, as required by Building Code § 3309.16. (See NYSCEF No. 43 at 7-8.) This court is not persuaded, though, that respondents' view that the plan's monitoring-related protections are overly lax necessarily also entails a conclusion that those protections are insufficiently tailored to the building for § 3309.16 purposes.

Respondents also do not contend that their preferred groundwater-related protections are required by the Building Code. And the affidavit of respondents' engineer, although identifying a multi-link causal chain through which petitioner's construction could cause groundwater-related harm, does not indicate how likely it is that each of those links will be reached. (See NYSCEF No. 25 at ¶¶ 26-27.)

In these circumstances, petitioner is not required to undertake more stringent efforts to protect respondents' property as a condition of the requested RPAPL 881 license. (See Matter of 18 W. 55th St. LLC, 230 AD3d at 991 ["Supreme Court also properly declined to order protections to [respondent's] retractable roof and terrace beyond those required by the New York City Building Code."].) This court notes that respondents have "an administrative remedy available to [them] by seeking an order from the DOB for additional protection" under Building Code 3309.15—"a remedy [respondents] had not sought at the time of" this motion. (Id.)

For the reasons discussed above, petitioner is entitled to an § 881 license. The parties are directed to meet and confer promptly on the precise terms of the license, consistent with the court's determinations in this order. To the extent that the parties can reach agreement on those terms, they shall submit a joint proposed license within 14 days of entry of this order. If the parties cannot agree on license terms, each party shall, within 14 days of entry, submit a proposed license for the court's consideration. Submissions shall be made by e-filing on NYSCEF and email to [email protected].

Accordingly, it is

ORDERED that petitioners' request for an RPAPL 881 license is granted on the terms set forth above; and it is further

ORDERED that the parties shall, within 14 days of entry of this order, submit to the court a proposed license or licenses, consistent with those terms, as set forth above; and it is further

ORDERED that respondents may enter a supplemental judgment for the reasonable attorney fees and professional fees incurred in pre-proceeding license negotiations and in litigating this proceeding, with the amount of those fees to be determined by motion made on notice within 30 days of entry of this order.