IN RE: 268 WEST 12TH OWNERS CORP. (2025)

Order, Supreme Court, New York County (Eric Schumacher, J.), entered on or about May 15, 2024, which, to the extent appealed from as limited by the briefs, granted petitioner a license under RPAPL 881;  awarded respondents a license fee of $170 per day for the first 10 months and a fee of $240 per day for the next five months, increasing by $2 each day after the first day of the extended term;  and directed petitioner to establish an escrow fund of $30,000 for repairs, unanimously affirmed, with costs.

Supreme Court providently awarded a license fee of $170 per day for the first 10 months, and directed petitioner to establish an escrow fund of $30,000 for repairs.  The initial license fee properly “strike[s] a balance between the petitioner's interest in improving its property and the harm to the adjoining property owner's enjoyment of its property” (Matter of Panasia Estate, Inc. v. 29 W. 19 Condominium, 204 A.D.3d 33, 38, 164 N.Y.S.3d 551 [1st Dept. 2022], lv dismissed 38 N.Y.3d 1125, 172 N.Y.S.3d 675, 192 N.E.3d 1154 [2022]).  Although respondents' contractor opined that a fee of $10,500 to $15,000 per month was appropriate based on the loss of respondents' garden, cultivated over decades, and the significant loss of natural light caused by the sidewalk shed the court's award was reasonable, given that respondents' proposed figures are not supported by comparables or a market-rate analysis (see Matter of 18 W. 55th St. LLC v. Pleiades House LLC, 230 A.D.3d 990, 991, 216 N.Y.S.3d 171 [1st Dept. 2024]).

Supreme Court providently declined to hold respondents to their initial, pro se bargaining position and fashioned a license fee that took into account the parties' history, the degree of intrusion, and the extent of respondents' loss of use and enjoyment of their property.  RPAPL 881 proceedings do not involve a “claim” that could be “compromise[d],” and therefore CPLR 4547 is not implicated here (see Matter of Panasia Estate, Inc., 204 A.D.3d at 38, 164 N.Y.S.3d 551).

The court also providently awarded an increased license fee of $240 per day for the five-month extension period based on the parties' agreement that an escalation would apply after the initial license period (see e.g. 154 E. 62 LLC v. Normanus Realty LLC, 235 A.D.3d 421, 423, 228 N.Y.S.3d 21 [1st Dept. 2025];  cf.  Matter of Van Dorn Holdings, LLC v. 152 W. 58th Owners Corp., 149 A.D.3d 518, 519, 52 N.Y.S.3d 316 [1st Dept. 2017];  see also Matter of Spence v. Strauss Park Realty, LLC, 211 A.D.3d 446, 447, 180 N.Y.S.3d 90 [1st Dept. 2022]).

Supreme Court providently exercised its discretion in requiring petitioner to place $30,000 for repairs in escrow based on its history of performing unlicensed work and its previous attempts to perform work in respondents' air space without their permission (cf.  DDG Warren LLC v. Assouline Ritz 1, LLC, 138 A.D.3d 539, 540, 30 N.Y.S.3d 52 [1st Dept. 2016]).

We have considered the remaining contentions and find them unavailing.