50 50 WEST DEVELOPMENT LLC v. JDM LLC (2023)

This action arises from a dispute between parties that control two neighboring high-rise apartment buildings in lower Manhattan. Defendant JDM Washington Street LLC is the ground lessee of an apartment building located at 90 Washington Street. JDM Washington has been engaged, apparently since 2008, in replacing the external façade on both sides of the building. As part of that construction project, JDM Washington installed sidewalk sheds in 2008 that extend onto the property of the adjacent apartment building, which is located at 50 West Street and controlled by plaintiffs 50 West Street Condominium and 50 West Development LLC.

In 2019, JDM Washington's façade-replacement project entailed the installation of additional protective measures, requiring in turn additional intrusions onto 50 West's property. The parties entered into a license agreement, permitting JDM Washington to enter onto 50 West's property and maintain temporary safety-related infrastructure there, in exchange for a monthly fee. (See generally NYSCEF No. 4 [copy of initial 2019 license agreement].) The agreement provides, among other things, that upon the expiration of the agreement, 50 West "shall be entitled to remove any of the Adjacent Premises Access." (Id. at 9 ¶ 8.) The term of the license agreement was extended several times, most recently until October 31, 2022. (See NYSCEF No. 3 at 3.) Following the agreement's expiration, the various intrusions onto 50 West's property have remained; JDM Washington has paid 50 West nothing; and JDM Washington has refused to execute a further extension of the license agreement.

50 West now moves to compel JDM Washington either to (i) halt its construction work (mot seq 001); or (ii) execute a further license agreement with a firm end date (mot seq 002). The motions are consolidated for disposition.

JDM Washington has vehemently opposed both of these requests for relief.¹ But JDM Washington does not identify relief that it would deem an acceptable remedy for its lengthy and ongoing trespass on 50 West's property. For that matter, JDM Washington has not provided 50 West—or this court—with an estimate of how much more time the façade replacement will require (or how much longer the safety-related infrastructure will need remain in place on 50 West's property).

In these circumstances, the court is loath to continue kicking the can down the road for an unspecified, open-ended period by requiring, in effect, renewal of the license agreement. The court concludes that the proper course is instead to require JDM Washington in the near future either to complete the project and end its trespasses on 50 West's property, or to explain to this court, in detail, why doing so is infeasible and what completion timeline is realistic.

Accordingly, it is

ORDERED that 50 West's motion for a preliminary injunction to restrain JDM Washington from performing further façade-replacement work (mot seq 001) is denied without prejudice; and it is further

ORDERED that 50 West's motion for an order compelling JDM Washington to execute a license agreement, maintain proper insurance, and complete the façade-replacement project (mot seq 002) is granted to the following extent and otherwise denied without prejudice: JDM Washington shall by July 14, 2023, while maintaining proper insurance coverage, complying with all requirements imposed by the New York City Department of Buildings and taking all safety precautions, complete the façade-repair project and remove all infrastructure currently located on 50 West's property; and it is further

ORDERED that if JDM Washington does not comply with these directives, 50 West may move on notice to hold JDM Washington in contempt, in opposition to which JDM Washington may submit papers showing, in detail, why compliance is not realistically possible and what timeline for completion would be realistically possible (and why).

5/31/2023

FOOTNOTES

1.   For example, JDM Washington's motion papers opposing 50 West's request to compel execution of a further license agreement argue that granting that request would abridge JDM Washington's federal constitutional right "to enter or to not enter into a contract," as described in Lochner v New York (198 US 45 [1905]). (NYSCEF No. 55 at 5.)

Gerald Lebovits, J.