In Matter of 269-273 14th St. NY Corp. v. Stein the Second Department considered whether an adjacent landowner, forced to allow access to a neighbor that was granted an RPAPL 881 license, can, within the context of that 881 proceeding, recover for physical damages caused by the petitioner (neighbor performing work and requesting access) and attorneys fees incurred in the proceeding itself. The Kings County Supreme Court had denied the licensor’s motion for damages and attorneys’ fees but the 2nd Department reversed. In reversing, the Court noted that “Since an adjacent property owner “has not sought out the intrusion and does not derive any benefit from it [the judicial license] . . . [e]quity requires that the owner compelled to grant access should not have to bear any costs resulting from the access…” (internal citations omitted).

The case offers a cautionary tale for the petitioner seeking to compel access to an adjacent property. In this instance, the petitioner never actually built the buildings it sought access to build. Nevertheless, the Court found that the respondent/licensor was forced to incur fees and sustained damages and that it was appropriate to consider and determine those costs in the same RPAPL 881 petition, not in a separate action for damages (which notably here did exist).

The key issue in an application for costs, fees or damages is to what extent the Court should award them. If the respondent/licensor is not to “bear any costs resulting from the access” then, in theory, they should be reimbursed every cent spent as a result of the access and the 881 proceeding. Unfortunately, that is not always how the trial Courts see the issue and, more often, they limit the costs awarded both in terms of damages, legal fees and engineering fees.

Because of the potential costs and exposure on both sides of a judicial license (RPAPL 881 license), both the party seeking access (petitioner/licensee) and the party being forced to grant access (respondent/licensor) should always consult experienced counsel to make sure all potential issues are addressed.