IN RE: PANASIA ESTATE (2026)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about June 6, 2025, which, to the extent appealed from as limited by the briefs, ordered petitioner to pay respondent MKF Realty Corp.'s attorneys' fees in the amount of $41,196.70, unanimously affirmed, with costs.

Supreme Court properly awarded MKF Realty its attorneys' fees incurred in this RPAPL 881 proceeding for a license to enter adjoining real property (Matter of Panasia Estate, Inc. v 29 W. 19 Condominium, 204 AD3d 33 [1st Dept 2022], lv dismissed 38 NY3d 1125 [2022];  Matter of Panasia Estate Inc. v. 29 West 19 Condominium, 224 AD3d 414 [1st Dept 2024], lv dismissed 41 NY3d 1015 [2024] ).  As this Court has previously held multiple times, the American rule governing fee awards does not preclude an award of fees to respondents under RPAPL 881 (Panasia Estate Inc., 224 AD3d at 414;  Panasia Estate, Inc., 204 AD3d at 38).  Fees in RPAPL 881 proceeding are not awarded to the prevailing party, but rather, to respondents who “are not accused of any wrongful conduct but are haled into court by a petitioner seeking access to their properties solely for its own benefit” (Panasia Estate Inc., 224 AD3d at 414 [internal quotation marks omitted] ).  Thus, a “prevailing party” determination is not required.

Accordingly, the recent amendment to RPAPL 881 (RPAPL 881[5][b] ), even if applicable retroactively, would not preclude an award of attorneys' fees to respondents or affect the court's discretion in awarding fees.  Contrary to petitioner's contention, which was raised for the first time in its reply, Supreme Court expressly stated the basis for the fees awarded to MKF (see Matter of Panstar Realty LLC v New York Teachers Hous. Corp., 246 AD3d 473, 474 [1st Dept 2026] ).

We have considered petitioner's remaining contentions and find them unavailing.