New York Court Grants Permission to Underpin Through RPAPL §881 Proceeding

June 3, 2019

Yes, I said it. This case is a little bit of a shocker and turns on its head everything that we have known about RPAPL §881 proceedings.

On February 26, 2019, Justice Melissa Crane of the New York Supreme Court (CUCS Housing Development v. Clifford S. Aymes) (Index No. 159303/2018), granted a developer the right to underpin (i.e. permanently encroach upon the foundation of an adjacent property) in her ruling on the developer's RPAPL §881 proceeding.

It has long been held, and is set forth in the legislative history of RPAPL §881, that the proceeding is for temporary access to a neighbor's property in order to make improvements to your property and is not a vehicle by which the court can grant the right to permanently encroach or otherwise alter the neighbor's property. However, Justice Crane did the latter granting "...the petitioner's request for a license for the purposes of installing protective works, including underpinning, pursuant to RPAPL §881..."

There were some nuances to the case, including the fact that the respondent's property was vacant and in disrepair and the respondent had no technical objection, just refused (it is noted that the respondent appeared pro se). On the other side was a petitioner who was building affordable housing for the homeless and whose contractor testified that there were no reasonable alternatives to underpinning and that if they were able to redesign it would mean going through a timely and costly re-approval process with the City of New York.

So, a sympathetic petitioner won out and was granted relief by a court outside of what has repeatedly been held to be beyond the purview of the court's jurisdiction. Perhaps, morally, it seems to be the right decision, but, legally, it is probably not. Will the decision stand? The respondent did appeal but in the interim at the damages hearing ordered by the court, the petitioner suddenly changed its tune and found an alternative to underpinning, thereby withdrawing its request for the right to underpin and rendering the appeal moot.

While it is still good case law in the First Department and may so remain, (and will undoubtedly be cited by developers/owners seeking the right to underpin), this anomaly may endure until or unless this case is tested in other matters. It certainly makes for interesting things to come.

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