First-half 2026 case review
Disputes over access to adjoining property frequently arise when a New York construction or repair project cannot proceed without temporarily entering, protecting, excavating near, or performing work from a neighboring parcel.
When the adjoining owner refuses permission, the party seeking access may commence a special proceeding under New York Real Property Actions and Proceedings Law § 881.
An RPAPL 881 proceeding is highly fact-specific. The court must consider why access is needed, what work will be performed, how long access will last, the hardship that denial would impose, and the burden that the proposed access will place on the adjoining property owner.
For a broader discussion of petitions, negotiated licenses, project protections, fees, and adjoining-owner strategy, visit our New York RPAPL 881 access proceedings and license agreements practice page.
First Department
Matter of Panstar Realty LLC v. New York Teachers Housing Corp.
Panstar Realty was undertaking a school construction project and sought a temporary license to enter the adjoining owner’s property.
Panstar originally requested access to repair the adjoining owner’s retaining wall and parking lot. Supreme Court granted a nine-month license, imposed a monthly license fee of $1,375, required a $250,000 bond, and declined the adjoining owner’s request for engineering and attorneys’ fees.
The circumstances underlying the requested access, however, subsequently changed. A Department of Buildings stop-work order that had originally required repairs to the retaining wall and parking lot was rescinded. DOB instead approved an alternative plan under which Panstar could install overhead protection using needle beams attached to a slab located on Panstar’s own property.
The First Department held that the changed circumstances eliminated the justification for allowing Panstar to perform repairs on the adjoining owner’s retaining wall and parking lot. The court therefore limited the license to the installation of the needle-beam overhead protection.
The court nevertheless left the $1,375 monthly license fee and $250,000 bond in place. It also remanded the adjoining owner’s request for engineering and attorneys’ fees so that the request could be reconsidered under the appropriate standard.
Why Panstar Realty matters
The central lesson is that the scope of an RPAPL 881 license must correspond to the work actually necessary under the project’s current plans and approvals. A need for access that existed when the proceeding began may not justify the same relief if the construction plan later changes.
The decision also shows that an RPAPL 881 application is not necessarily all or nothing. The First Department did not eliminate the license. It narrowed the license to the portion of the work that remained necessary.
For owners and developers seeking access, the petition and supporting evidence should identify each activity that must be performed from the adjoining property and explain why it cannot reasonably be completed from the petitioner’s own property. If DOB approvals, construction means and methods, or protective plans change while the proceeding is pending, the requested license should be updated accordingly.
For adjoining owners, the decision demonstrates the importance of examining whether every component of the proposed access remains necessary. A petitioner may establish a general need for some access without establishing a continuing need for every item included in the proposed license.
Second Department
Matter of Dursi v. Coffey
The dispute did not arise from a conventional commercial construction project. It involved invasive bamboo that had spread from one residential property to the adjoining property and into a detached garage.
After the adjoining owners refused permission to enter their property, the affected owners commenced an RPAPL 881 proceeding. They requested a one-day license to enter the neighboring property, dig a trench, remove bamboo rhizomes beneath the garage, and install a bamboo root barrier.
Supreme Court granted the requested license, and the Second Department affirmed.
Applying the reasonableness and balancing standard, the Second Department relied on several facts. The petitioners submitted an unopposed expert opinion establishing that the bamboo was invasive and that the proposed root barrier would contain it. The requested entry was limited to one day. The inconvenience to the adjoining owners was slight compared with the hardship the petitioners would experience if access were denied.
Why Dursi matters
Dursi illustrates how a narrowly tailored access request can affect the court’s balancing analysis. The petitioners did not seek an open-ended license or general authority to occupy the neighboring property. They identified the specific work, supported the proposed method with expert evidence, and limited the requested entry to one day.
The case provides a useful model for presenting an RPAPL 881 application:
- Define the precise location where access is required.
- Identify the specific work that will be performed.
- Explain why entry onto the adjoining property is necessary.
- Support the proposed work with competent technical or expert evidence.
- Limit the duration and physical scope of the requested access.
- Compare the hardship caused by denial with the inconvenience the license will impose.
The unopposed expert evidence was particularly important. RPAPL 881 proceedings often involve competing assertions concerning construction methods, protective measures, excavation, structural impacts, monitoring, or possible alternatives. A court is better positioned to grant relief when necessity and feasibility are demonstrated through detailed evidence rather than conclusory statements.
The decision is equally instructive for adjoining owners. A neighboring owner opposing access should not rely solely on a generalized objection to entry. If the petitioner submits expert proof, the adjoining owner should consider whether contrary technical evidence is necessary.
Access strategy should develop with the project record.
Plans, DOB approvals, engineering evidence, protective measures, insurance, schedule, and negotiations all affect the scope and terms of an access license.
Second Department
Scutari v. Drapala
Property owners sued the past and present owners of an adjacent parcel concerning the construction and installation of a modular home. Their claims included trespass, private nuisance, negligence, declaratory relief, injunctive relief, and a cause of action under RPAPL 881 seeking to require the defendants to obtain a license.
The Second Department held that the RPAPL 881 cause of action should have been dismissed. The defendants established that the modular-home work had already been completed and that completion eliminated any continuing need to enter the plaintiffs’ property. The plaintiffs also did not oppose that portion of the defendants’ summary judgment motion.
Why Scutari matters
Scutari reinforces that RPAPL 881 concerns a present need for temporary access. When the relevant work has been completed and no future access is required, there may be no license for the court to grant.
Completion of the work does not necessarily resolve every dispute between the property owners. In Scutari, the parties also asserted claims involving trespass, nuisance, negligence, and zoning-related relief, and the court addressed those claims separately.
The distinction is important. An RPAPL 881 proceeding is a mechanism for obtaining permission to enter adjoining property to perform necessary work. It is not interchangeable with a claim seeking damages or other relief based on an entry that allegedly occurred without permission.
For a party that anticipates needing access, the practical lesson is to address the issue before the work requiring access is performed. Negotiations should begin early enough to permit a voluntary license agreement or, if negotiations fail, an RPAPL 881 proceeding before access becomes necessary.
Third Department
Places in Saratoga, LLC v. Izzo
The appeal did not involve a determination granting or denying an RPAPL 881 license. Instead, it arose from a stipulation that had settled an earlier RPAPL 881 proceeding.
Before redeveloping its Saratoga Springs property, Places in Saratoga commenced an RPAPL 881 proceeding seeking access to adjoining parcels to excavate and relocate drainage and sewer lines. The parties settled the proceeding through a 2018 stipulation.
Among other things, the stipulation required the parties to engage in good-faith discussions concerning protective measures for the adjoining owners’ north wall. Those discussions were to necessarily include consideration of a rainwater catchment system.
Disputes concerning roof runoff continued after the settlement. Places in Saratoga later brought claims that included breach of the implied covenant of good faith and fair dealing and promissory estoppel.
The Third Department held that the stipulation required the parties to negotiate in good faith concerning a rainwater catchment system, but it did not require the parties to agree upon a particular system or guarantee that they would reach a final agreement.
Nevertheless, the court reinstated the good-faith-and-fair-dealing claim. It found triable questions concerning whether the adjoining owners had conditioned their approval on demands not contained in the agreement, including reconstruction of the roof for snow-load purposes, and whether they had participated in negotiations in good faith.
Why Places in Saratoga matters
RPAPL 881 proceedings are frequently resolved through negotiated access agreements or court-approved stipulations. The decision demonstrates that the language used in those agreements can have consequences long after the immediate access work has been completed.
A provision requiring the parties to negotiate in good faith is not necessarily the same as a provision requiring a party to approve a particular design or reach a final agreement. When the parties intend to require a specific result, the agreement should say so clearly.
From a drafting perspective, an RPAPL 881 settlement should distinguish among:
- An obligation merely to discuss a protective measure;
- An obligation to consider specified alternatives;
- An obligation not to unreasonably withhold approval;
- An obligation to approve a proposal that satisfies defined technical criteria; and
- An obligation to install or pay for a specifically identified system.
The agreement should also address how technical disagreements will be resolved, what documentation must be exchanged, when approvals or objections must be provided, and whether either party may impose conditions beyond those stated in the agreement. Ambiguous language may resolve the immediate proceeding while leaving the parties with a new dispute over what the settlement requires.
That drafting work belongs in a project-specific New York construction license and access agreement, not a generic form divorced from the plans, protections, insurance, monitoring, and schedule.
Practical synthesis
Five lessons from the first-half 2026 RPAPL 881 decisions
The requested access must match the current need
Panstar Realty shows that a superseded construction method or rescinded governmental directive may no longer support the original scope of access.
A narrowly defined request is more persuasive
The one-day license approved in Dursi imposed only a limited burden. Petitioners should identify the precise duration, location, purpose, and manner of entry.
Technical evidence can be decisive
The unopposed expert evidence in Dursi established the condition and the proposed solution. Depending on the dispute, detailed affidavits from engineers, architects, contractors, or other qualified professionals may be needed to establish or challenge access.
The need for access must still exist
Scutari demonstrates that RPAPL 881 relief may be unavailable when the relevant work has been completed and no continuing access is necessary.
The settlement deserves as much attention as the petition
Places in Saratoga shows that an agreement resolving an RPAPL 881 proceeding can create enforceable continuing obligations. Terms concerning good-faith negotiations, protective measures, approvals, and future work should be stated with precision.
For the party seeking entry
Preparing an RPAPL 881 application
A party seeking a license should be prepared to establish more than the general desirability of access. The application should explain:
- What work will be performed;
- Where the work will occur;
- Why access to the adjoining property is necessary;
- Whether an alternative method is feasible;
- How long access will be required;
- What burden the work will place on the adjoining owner; and
- What conditions can reasonably reduce that burden.
The request should remain consistent with the current construction plan, governmental approvals, and proposed means and methods. Our focused RPAPL 881 petition process guide addresses the record that should be developed before judicial relief is requested.
For the adjoining owner
Responding to an RPAPL 881 application
An adjoining owner should evaluate the petition activity by activity. Even where some access is justified, the petitioner may be requesting more access, time, or authority than the project reasonably requires.
- Has the petitioner shown a present need for each requested activity?
- Would a feasible alternative reduce or eliminate entry?
- Can the duration or physical scope be reduced?
- Does the expert evidence adequately support the proposal?
- Is contrary engineering or technical evidence needed?
- What financial and protective conditions should be imposed?
As Panstar Realty illustrates, the court may preserve appropriate conditions, including a license fee and bond, while narrowing the substantive scope of the license. Requests for professional fees or other protections should be supported by an adequate evidentiary and legal record.
Conclusion
Careful factual development and precise drafting remain central
The New York appellate decisions issued during the first half of 2026 confirm that RPAPL 881 proceedings turn on careful factual development and precise drafting.
A petitioner must demonstrate a current and specific need for access. A limited request supported by expert evidence is more likely to withstand scrutiny. An adjoining owner may challenge portions of a proposed license that are obsolete, unnecessary, or broader than the actual work requires. When the parties resolve the proceeding through an agreement, the settlement must clearly state whether it requires discussion, approval, implementation, or a particular result.
Property owners, developers, and adjoining owners should address access rights early in the project. Early planning provides time to define the required work, exchange technical information, negotiate appropriate conditions, and, when necessary, seek judicial relief before the access dispute disrupts the construction schedule.
Construction access disputes
Address the license before access controls the project.
Kushnick Pallaci PLLC represents owners, developers, adjoining owners, condominium and cooperative boards, contractors, and construction professionals in negotiated access agreements and RPAPL 881 proceedings throughout New York.
