In re Lincoln Spencer Apartments Inc.

• Decision Date: 25 October 2011
• Citation: 88 A.D.3d 606,2011 N.Y. Slip Op. 07512,931 N.Y.S.2d 69
• Parties: In re LINCOLN SPENCER APARTMENTS, INC., Petitioner–Respondent,v.ZECKENDORF–68TH STREET ASSOCIATES, Respondent,The Copley Condominium and Club, etc., Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 606

931 N.Y.S.2d 69

2011 N.Y. Slip Op. 07512

In re LINCOLN SPENCER APARTMENTS, INC., Petitioner–Respondent,

v.ZECKENDORF–68TH STREET ASSOCIATES, Respondent,The Copley Condominium and Club, etc., Respondent–Appellant.

Supreme Court, Appellate Division, First Department, New York.

Oct. 25, 2011.

Cyruli Shanks Hart & Zizmor LLP, New York (James E. Schwartz of counsel), for appellant.Dean Lakis, Roslyn Heights, for respondent.MAZZARELLI, J.P., FRIEDMAN, CATTERSON, RENWICK, RICHTER, JJ.

Order and judgment (one paper), Supreme Court, New York County (Barbara Jaffe, J.), entered June 6, 2011, which, inter alia, granted the petition for a conditional and temporary license to access the roof of respondent The Copley Condominium and Club (Copley), unanimously reversed, on the law, with costs, the petition denied, and the proceeding brought pursuant to Real Property Actions and Proceedings Law § 881 dismissed.

RPAPL 881 is the means by which a landowner seeking “to make improvements or repairs” to its property may seek a license to enter an adjoining landowner's property when those “improvements or repairs cannot be made” without such entry. Here, the court erred by granting petitioner a license to access Copley's roof because petitioner failed to “state the facts making such entry necessary,” as the statute requires ( id.). The petition, and the affidavit of a “senior associate” submitted for the first time in petitioner's reply papers, conclusorily state that access to Copley's roof was necessary. Petitioner has failed to put forward any explanation as to why the work could not otherwise be performed or indeed, any facts whatsoever ( see Matter of 155 W. 21st St., LLC v. McMullan, 61 A.D.3d 497, 504–505, 877 N.Y.S.2d 56 [2009]; see also Amalgamated Dwellings v. Hillman Hous. Corp., 299 A.D.2d 199, 200, 749 N.Y.S.2d 251 [2002] ).