NY State Senate Bill 2021-S8430A

Archive: Last Bill Status - In Assembly Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 01, 2022	referred to judiciary delivered to assembly passed senate
May 31, 2022	ordered to third reading cal.1661 committee discharged and committed to rules
May 25, 2022	print number 8430a
May 25, 2022	amend and recommit to judiciary
Feb 28, 2022	referred to judiciary

Votes

- Jun 1, 2022 - Floor Vote
  S8430A
  
  62
  
  Aye
  
  1
  
  Nay
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 1, 2022
      
      aye (62)
      
      Addabbo Jr.
      
      Akshar
      
      Bailey
      
      Biaggi
      
      Borrello
      
      Boyle
      
      Breslin
      
      Brisport
      
      Brooks
      
      Brouk
      
      Cleare
      
      Comrie
      
      Cooney
      
      Felder
      
      Gallivan
      
      Gaughran
      
      Gianaris
      
      Gounardes
      
      Griffo
      
      Harckham
      
      Helming
      
      Hinchey
      
      Hoylman-Sigal
      
      Jackson
      
      Jordan
      
      Kaminsky
      
      Kaplan
      
      Kavanagh
      
      Kennedy
      
      Krueger
      
      Liu
      
      Mannion
      
      Martucci
      
      Mattera
      
      May
      
      Mayer
      
      Myrie
      
      O'Mara
      
      Oberacker
      
      Ortt
      
      Palumbo
      
      Parker
      
      Persaud
      
      Ramos
      
      Rath III
      
      Reichlin-Melnick
      
      Ritchie
      
      Rivera
      
      Ryan
      
      Salazar
      
      Sanders Jr.
      
      Savino
      
      Sepúlveda
      
      Serino
      
      Serrano
      
      Skoufis
      
      Stavisky
      
      Stec
      
      Stewart-Cousins
      
      Tedisco
      
      Thomas
      
      Weik
      
      nay (1)
      
      Lanza
  May 31, 2022 - Rules Committee Vote
  S8430A
  
  17
  
  Aye
  
  0
  
  Nay
  
  3
  
  Aye with Reservations
  
  1
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Rules Committee Vote: May 31, 2022
      
      aye (17)
      
      Addabbo Jr.
      
      Bailey
      
      Biaggi
      
      Boyle
      
      Breslin
      
      Comrie
      
      Gallivan
      
      Gianaris
      
      Kennedy
      
      Krueger
      
      Lanza
      
      Liu
      
      Mayer
      
      Parker
      
      Savino
      
      Sepúlveda
      
      Stewart-Cousins
      
      aye wr (3)
      
      Griffo
      
      Ortt
      
      Ritchie
      
      absent (1)
      
      O'Mara

Bill Amendments

Original

A (Active)

co-Sponsors

2021-S8430 - Details

See Assembly Version of this Bill:: A9564
Current Committee:: Assembly Judiciary
Law Section:: Real Property Actions and Proceedings Law
Laws Affected:: Amd §881, add §882, RPAP L
Versions Introduced in 2023-2024 Legislative Session:: S1305, A1321

2021-S8430 - Summary

Provides an owner or lessee access to adjoining property to make improvements or repairs for certain circumstances.

2021-S8430 - Sponsor Memo

                                 
BILL NUMBER: S8430

SPONSOR: COMRIE
 
TITLE OF BILL:

An act to amend the real property actions and proceedings law, in
relation to access to adjoining property to make improvements or repairs

 
TITLE OF BILL:

An act to amend the real property actions and proceedings law, in
relation to access to adjoining property to make improvements or repairs

 
PURPOSE:

To provide real property actions to adjoining property to make improve-
ments or repairs and ensure efficient resolutions to protection of
public safety during demolition, excavation, and constructions activ-
ities; and promoting the redevelopment and improvement of buildings to
prevent disrepair.

SUMMARY OF PROVISIONS:

Section one adds a five new paragraphs the real property to allow
adjoining property owners to have a stake in the building process

Paragraph two adds a paragraph to outline preconstruction surveys, use
of devices to record changes in adjacent property pursuant to changes
set forth by new construction, and changes in airspace and infrastruc-
ture affecting adjacent properties.

Paragraph three provides imitations to developers on adjacent property
related to the new construction of buildings.

Paragraph four provides courts greater authority to grant or deny
contractors authority to contractor undergoing new construction related
to adjacent properties.

Paragraph five outlines understanding of terms and agreements between
new construction and adjacent properties.

Section two establishes severability.

Section three establishes the effective date.

 
JUSTIFICATION:

Protection of private property rights is a fundamental part of American
law. However, there are numerous circumstances when safely undertaking
construction on one's property may require access to an adjoining
owner's land, Whether and under what terms adjoining owners may be
required to grant such access is a critical policy question that impli-
cates property rights as well as public safety.  Unfortunately, in New
York City today, the regulatory regime that:  governs the terms under
which neighbors grant a property owner with access to their land needs
reform. Addressing his issue is particularly time sensitive in light of
a recent Supreme Court decision that raises concerns as to whether the
existing State regime is constitutional. While An some cases owners and
their neighbors quickly and amicably work out a solution without going
to court, in many instances property owners are required to go to court
in order to resolve the questions of whether and under what terms
adjoining property owners can access their property. The principal law
that establishes the terms under which adjoining property owners may be
required to grant access to their property is the Real Property Actions
and Proceedings Law, Enacted in 1968, Section 881 of this law governs
efforts to compel access to adjoining property in order to undertake
improvements on one's own property. Under this provision of law, the
Supreme Court is authorized to grant a license to an owner (or lessee)
that allows the licensee to have temporary access to adjoining property,
in aid of "improvement or repairs" to the licensee's property.

This proposal would create a more predictable framework that will
protect adjacent property owners and ensure construction projects can
safely move forward. Property owners seeking access to an adjoining lot
should be required to provide the adjoining owner and tenant, if appli-
cable, with a copy of all relevant approved documents pertaining
construction prior to the commencement of work. Owners and their
contractors should be required to provide reasonable prior notice of
actual entry (except in cases of emergency posing an immediate threat to
safety of persons or property). Prior to entering an adjoining owner's
property, owners should provide the anticipated duration of time that
access to the adjoining owner's property will be required.  Owners
should be required to make best efforts to adhere to those anticipated
times.

These clarifications should make adjoining owners more aware of the
specifics of the work that is occurring and ensure that such action is
needed. Further consideration should be given to adding clarifications
into the law as it relates to a developer's ability to lawfully under-
take the performance of support of excavation ("SOB") activities, access
to a neighboring property for the undertaking of lot line/party wall
protections such as tie-backs or either forms of protection necessary to
ensure safety, and access to ensure code compliant chimney and/or flue-
related work may be performed.

Any consultant or contractor who seeks to enter an adjoining property on
behalf of the licensee developer to maintain commercial general liabil-
ity (CGL) insurance that provides coverage to third parties for damage
to persons or property and provide evidence of such insurance to the
adjoining property owner. Doing so would effectively ensure that any
damage to adjoining property and personal injury to persons present on
adjoining property are covered. The CGL coverage requirements will near-
ly always, barring an exceptional circumstance, provide adequate mone-
tary coverage for damage caused to a neighboring property. Providing
such insurance should negate the need for a court to establish an escrow
fund or place a surety bond to cover future claims of damage. Ensuring
such a requirement was carried out could be monitored through the City's
Department of Buildings. The Department of Buildings already requires
minimum, mandatory insurance limits to pull certain permits on the
development site, and these requirements could be expanded to include
evidence that neighboring property owners have been included as addi-
tional .insureds on the relevant CGL policies of insurance. A submission
of a certificate of insurance showing appropriate legal gal entities
named as additional insureds. As part of the written notification to a
neighboring property owner (as contemplated below), the statute should
require the licensee or the party entering the adjoining property (e.g.,
a consultant or contractor) on behalf of the licensee to provide a writ-
ten confirmation that it will agree to include the neighboring owner and
affected lessees as additional insureds on such licensee's and/or
consultant/contractor's CGL insurance.

Authorize the court, where appropriate, to require the licensee to pay
reasonable fees incurred by the neighbor t engage an architect or engi-
neer to review and comment upon protection plans. To encourager solution
to the process, the statute should stipulate that the failure by an
adjacent property owner to substantively respond to the information
provided by the owner required above (i.e.  pre-construction survey,
prof of insurance, plans, predicted schedules) should be permissible
evidence n weighing award of t future license for access to a developer
via an RPAPL 881 proceeding.

This bill will explicitly empower the curt to award attorneys' fees
against a party who has acted unreasonably or in bad faith in connection
with the refusal to grant access to entities seeking access to install
property protections required by the New York City Construction Code
and/or New York City Department of Buildings, which refusal results in
the commencement of litigation and award of license. Furthermore, the
court can award fees to either party for acting unreasonably or in had
faith.

This bill will ensure that bill new construction owners and adjacent
property owners have very clear rights associated with construction.
Passage. of this bill will improve Transparency for adjoining Owners,
better protect adjoining owners, encourage resolution to disputes that
protect all parties.

 
LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately:

2021-S8430 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8430
 
                             I N  S E N A T E
 
                             February 28, 2022
                                ___________
 
 Introduced  by  Sen.  COMRIE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Judiciary
 
 AN ACT to amend the  real  property  actions  and  proceedings  law,  in
   relation  to  access  to  adjoining  property  to make improvements or
   repairs
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  881 of the real property actions and proceedings
 law, as added by chapter 220 of the laws of 1968, is amended to read  as
 follows:
   §  881.  Access to adjoining property to make improvements or repairs.
 1. When an owner or lessee seeks to make improvements or repairs to real
 property so situated that such improvements or repairs cannot be made by
 the owner or lessee without entering the premises of an adjoining  owner
 or his lessee, and permission so to enter has been refused, the owner or
 lessee  seeking  to  make  such  improvements  or repairs may commence a
 special proceeding for a license so to enter pursuant to article four of
 the civil practice law and rules. The petition and affidavits,  if  any,
 shall  state the facts making such entry necessary and the date or dates
 on which entry is sought. ANY ADJOINING OWNER OR LESSEE NAMED AS A PARTY
 IN SUCH PROCEEDING MAY, AT THE REQUEST OF  THE OWNER OR  LESSEE  SEEKING
 SUCH  ENTRY, PROVIDE SUCH OWNER OR LESSEE WITH SUCH INFORMATION AS SHALL
 ALLOW THE OWNER OR LESSEE TO IDENTIFY THE LESSEES OF THE ADJOINING OWNER
 AND JOIN THEM IN THE PROCEEDING. Such license shall be  granted  by  the
 court  in  an  appropriate  case  AND  upon  such OTHER terms as justice
 requires. The licensee shall be liable to the  adjoining  owner  or  his
 lessee for actual damages occurring as a result of the entry.
    2.  THE  PURPOSES FOR WHICH AN OWNER OR LESSEE MAY SEEK PERMISSION TO
 ENTER AN ADJOINING PROPERTY PURSUANT  TO  THIS  SECTION  SHALL  INCLUDE,
 WITHOUT LIMITATION:
   A.   PRECONSTRUCTION SURVEY TO DOCUMENT THE EXISTING CONDITIONS OF THE
 ADJOINING PROPERTY;
   B. THE  INSTALLATION,  MAINTENANCE,  INSPECTION,  REPAIR,  REPLACEMENT
 AND/OR REMOVAL OF: (I) VIBRATION, CRACK OR OPTICAL MONITORING DEVICES ON
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD14811-01-2
 S. 8430                             2
 
 OR  WITHIN  ANY  EXISTING  IMPROVEMENTS  ON THE ADJOINING PROPERTY; (II)
 SHEDS, BRIDGES, NETTING OR OTHER  PROTECTIVE  COVERING  OVER  THE  ROOF,
 FACADES,  WINDOWS,  SKYLIGHTS,  CHIMNEYS  OR  OTHER EXTERIOR PORTIONS OF
 BUILDINGS  OR  YARDS,  WALKWAYS,  DRIVEWAYS  OR  OTHER OPEN AREAS ON THE
 ADJOINING PROPERTY; (III) SCAFFOLDING ON OR OVER THE ADJOINING PROPERTY;
 (IV) SHEETING, SHORING, BRACING OR OTHER RETAINING STRUCTURES NEEDED FOR
 DEMOLITION  OR  SUPPORT  OF  EXCAVATION;  (V)  FOUNDATION  OR   BUILDING
 SUPPORTS,  INCLUDING, WITHOUT LIMITATION, WALL TIES, TIE-BACKS, ANCHORS,
 STRAPS AND UNDERPINNING, FOR ANY DEMOLITION, NEW  OR  EXISTING  IMPROVE-
 MENTS,  INCLUDING,  WITHOUT  LIMITATION, PARTY WALLS, ON THE PREMISES OF
 THE GRANTEE OR ADJOINING OWNER; OR (VI) FLASHING, SEALING OR OTHER MATE-
 RIALS OR EQUIPMENT NEEDED TO ESTABLISH THE WEATHERPROOF INTEGRITY OF ANY
 WALL, FOUNDATION OR OTHER EXTERIOR PORTION OF A BUILDING ON THE  ADJOIN-
 ING PROPERTY;
   C.  TEMPORARY  PROJECTIONS  OR  INTRUSIONS  INTO  THE  AIRSPACE OF THE
 ADJOINING PROPERTY AS NECESSARY TO COMPLETE THE PROPOSED IMPROVEMENTS OR
 REPAIRS;
   D. TEMPORARY OR PERMANENT RELOCATION, EXTENSION OR OFFSETTING  OF  ANY
 CHIMNEYS,  VENTS,  FLUES,  EXHAUSTS  OR  OTHER  ROOFTOP EQUIPMENT ON THE
 ADJOINING PROPERTY, AS REQUIRED BY APPLICABLE LAW;
   E. CONSTRUCTION STAGING NECESSARY TO COMPLETE ANY WORK ON THE  ADJOIN-
 ING PROPERTY; OR
   F. THE UNDERTAKING OF SUCH OTHER MEASURES AS MAY BE REQUIRED BY APPLI-
 CABLE LAW OR GOOD CONSTRUCTION PRACTICE.
   3.    THE  GRANT  OF  ANY PERMISSION PURSUANT TO THIS SECTION SHALL BE
 SUBJECT TO THE FOLLOWING CONDITIONS:
   A. THE EXERCISE OF ANY RIGHT OF ENTRY TO THE ADJOINING PROPERTY  SHALL
 BE  UPON  REASONABLE  PRIOR  NOTICE TO THE ADJOINING OWNER OR LESSEE, AS
 APPLICABLE AND AS THE COURT MAY ESTABLISH, EXCEPT IN CASES OF  AN  EMER-
 GENCY POSING AN IMMEDIATE THREAT TO THE SAFETY OF PERSONS OR PROPERTY;
   B.  THE  GRANTEE  SHALL  PROVIDE  TO THE ADJOINING OWNER OR LESSEE, AS
 APPLICABLE AND AS  REASONABLY PRACTICABLE BUT  NO  LATER THAN THE DELIV-
 ERY DATE OF THE APPLICABLE NOTICE REQUIRED PURSUANT TO  PARAGRAPH  A  OF
 THIS  SUBDIVISION,  A  GOOD  FAITH PROJECTION OF THE DATES AND ESTIMATED
 DURATION OF ANY ENTRY TO THE ADJOINING PROPERTY. THE GRANTEE SHALL THER-
 EAFTER MAKE DILIGENT EFFORTS TO ADHERE TO SUCH DATES AND DURATIONS;
   C. WHERE PERMISSION INCLUDES A RIGHT TO  INSTALL,  MAINTAIN,  INSPECT,
 REPAIR,  REPLACE  OR REMOVE ANY DEVICES, STRUCTURES, MATERIALS OR EQUIP-
 MENT ON THE ADJOINING PROPERTY, THE GRANTEE SHALL PROVIDE TO THE ADJOIN-
 ING OWNER OR LESSEE, AS APPLICABLE,  COPIES  OF  ANY  RELEVANT  APPROVED
 DOCUMENTS PRIOR TO COMMENCEMENT OF SUCH WORK;
   D.  THE  GRANTEE  AND ANY CONTRACTOR, CONSULTANT OR AGENT THEREOF THAT
 ACCESSES THE ADJOINING PROPERTY PURSUANT TO THE  LICENSE  SHALL  PROCURE
 AND  MAINTAIN  COMMERCIAL  GENERAL  LIABILITY  INSURANCE  FOR  DAMAGE TO
 PERSONS OR PROPERTY, NAMING THE OWNER AND ANY APPLICABLE LESSEE  OF  THE
 ADJOINING  PROPERTY  AS  ADDITIONAL  INSUREDS,  IN  SUCH  AMOUNTS AS ARE
 COMMERCIALLY REASONABLE FOR THE ENTRY TO  THE  ADJOINING  PROPERTY.  THE
 GRANTEE SHALL PROVIDE THE OWNER AND ANY APPLICABLE LESSEE OF THE ADJOIN-
 ING PROPERTY WITH RELEVANT APPROVED DOCUMENTS; AND
   E.  THE GRANTEE SHALL BE REQUIRED TO REASONABLY COMPENSATE THE ADJOIN-
 ING OWNER OR THEIR LESSEE FOR THE USE AND  OCCUPANCY  OF  THE  ADJOINING
 PREMISES.
   4.  THE COURT, IN GRANTING A LICENSE OR OTHERWISE RESOLVING A PROCEED-
 ING BROUGHT PURSUANT TO THIS SECTION, SHALL BE AUTHORIZED TO:
 S. 8430                             3
 
   A. CONSIDER EVIDENCE THAT EITHER PARTY FAILED TO COMPLY WITH THE TERMS
 OF ANY EXISTING OR PREVIOUSLY EXISTING LICENSE RESPECTING THE SAME PROP-
 ERTY;
   B.  OBLIGATE THE GRANTEE TO REIMBURSE THE OWNER OR LESSEE, AS APPLICA-
 BLE, OF THE ADJOINING PROPERTY FOR REASONABLE ARCHITECT'S  AND/OR  ENGI-
 NEER'S FEES INCURRED IN CONNECTION WITH THE REVIEW OF RELEVANT DOCUMENTS
 FOR  THE  INSTALLATION,  MAINTENANCE, INSPECTION, REPAIR, REPLACEMENT OR
 REMOVAL OF DEVICES, STRUCTURES, MATERIALS OR EQUIPMENT ON THE  ADJOINING
 PROPERTY;
   C.  APPROVE,  AND OBLIGATE THE GRANTEE OR THE OWNER, AS APPLICABLE, OF
 THE ADJOINING PROPERTY TO ACCEPT SUCH DOCUMENTS  FOR  THE  INSTALLATION,
 MAINTENANCE,  INSPECTION,  REPAIR,  REPLACEMENT  OR  REMOVAL OF DEVICES,
 STRUCTURES, MATERIALS OR EQUIPMENT ON  THE  ADJOINING  PROPERTY  AS  THE
 GRANTEE MAY PRESENT DURING THE PROCEEDING;
   D.  APPROVE, AND OBLIGATE THE GRANTEE TO ACCEPT REASONABLE COMMENTS ON
 DOCUMENTS PROPOUNDED BY THE ADJOINING OWNER OR TENANT OR THEIR EXPERT;
   E. INSURE FOR PROPERTY AND PERSON IF THERE IS UNIQUE, PHYSICAL  OCCUR-
 RENCE CAUSING PHYSICAL DAMAGE TO PROPERTY OR PERSONS; AND
   F.  AWARD  REASONABLE  ATTORNEYS'  FEES TO EITHER PARTY UPON A FINDING
 THAT THE OTHER PARTY ACTED IN BAD FAITH OR ENGAGED IN WILLFUL MISCONDUCT
 IN SEEKING, DENYING, OR CONDITIONING ITS APPROVAL OF THE RIGHTS OF ENTRY
 THAT ARE THE SUBJECT OF THE PROCEEDING.
   § 2. The real property actions  and  proceedings  law  is  amended  by
 adding a new section 882 to read as follows:
   §  882. SEVERABILITY. IF ANY PROVISION OF THIS ARTICLE OR THE APPLICA-
 TION THEREOF TO ANY PERSON OR CIRCUMSTANCES IS HELD INVALID, THE REMAIN-
 DER OF THE ARTICLE AND  THE  APPLICATION  OF  SUCH  PROVISION  TO  OTHER
 PERSONS OR CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY.
   § 3. This act shall take effect immediately.

co-Sponsors

2021-S8430A (ACTIVE) - Details

See Assembly Version of this Bill:: A9564
Current Committee:: Assembly Judiciary
Law Section:: Real Property Actions and Proceedings Law
Laws Affected:: Amd §881, add §882, RPAP L
Versions Introduced in 2023-2024 Legislative Session:: S1305, A1321

2021-S8430A (ACTIVE) - Summary

Provides an owner or lessee access to adjoining property to make improvements or repairs for certain circumstances.

2021-S8430A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S8430A

SPONSOR: COMRIE
 
TITLE OF BILL:

An act to amend the real property actions and proceedings law, in
relation to access to adjoining property to make improvements or repairs

 
TITLE OF BILL:

An act to amend the real property actions and proceedings law, in
relation to access to adjoining property to make improvements or repairs

 
PURPOSE:

To provide real property actions to adjoining property to make improve-
ments or repairs and ensure efficient resolutions to protection of
public safety during demolition, excavation, and constructions activ-
ities; and promoting the redevelopment and improvement of buildings to
prevent disrepair.

SUMMARY OF PROVISIONS:

Section one adds five new paragraphs the real properly to allow adjoin-
ing property owners to have a stake in the building process

Paragraph two adds a paragraph to outline preconstruction surveys, use
of devices to record changes in adjacent property pursuant to changes
set forth by new construction, and changes in airspace and infrastruc-
ture affecting adjacent properties.

Paragraph three provides imitations to developers on adjacent property
related to the new construction of buildings.

Paragraph four provides courts greater authority to grant or deny
contractors authority to contractor undergoing new construction related
to adjacent properties.

Paragraph five outlines understanding of terms and agreements between
new construction and adjacent properties.

Section two establishes severability.

Section three establishes the effective date.

 
JUSTIFICATION:

Protection of private property rights is a fundamental part of American
law. However, there are numerous circumstances when safely undertaking
construction on one's property may require access to an adjoining
owner's land. Whether and under what terms adjoining owners may be
required to grant such access is a critical policy question that impli-
cates property rights as well as public safety.  Unfortunately, in New
York City today, the regulatory regime that governs the terms under
which neighbors grant a property owner with access to their land needs
reform. Addressing this issue is particularly time sensitive in light of
a recent Supreme Court decision that raises concerns as to whether the
existing State regime is constitutional. While, in some cases, owners
and their neighbors can quickly and amicably work out a solution without
going to court, in many instances, property owners are required to go to
court in order to resolve the questions of whether and under what terms
adjoining property owners can access their property. The principal law
that establishes the terms under which adjoining property owners may be
required to grant access to their property is the Real Property Actions
and Proceedings Law, Enacted in 1968, Section 88 1 of this law governs
efforts to compel access to adjoining property in order to undertake
improvements on one's own property. Under this provision of law, the
Supreme Court is authorized to grant a license to an owner (or lessee)
that allows the licensee to have temporary access to adjoining property,
in aid of "improvement or repairs" to the licensee's property.

This proposal would create a more predictable framework that will
protect adjacent property owners and ensure construction projects can
safely move forward. Property owners seeking access to an adjoining lot
should be required to provide the adjoining owner and tenant, if appli-
cable, with a copy of all relevant approved documents pertaining to
construction prior to the commencement of work. Owners and their
contractors should be required to provide reasonable prior notice of
actual entry (except in cases of emergency posing an immediate threat to
the safety of persons or property). Prior to entering an adjoining
owner's property, owners should provide the anticipated duration of time
that access to the adjoining owner's property will be required.  Owners
should be required to make best efforts to adhere to those anticipated
times.

These clarifications should make adjoining owners more aware of the
specifics of the work that is occurring and ensure that such action is
needed. Further consideration should be given to adding clarifications
into the law as it relates to a developer's ability to lawfully under-
take the performance of support of excavation ("SOE") activities, access
to a neighboring property for the undertaking of lot line/party wall
protections such as tie-backs or either forms of protection necessary to
ensure safety, and access to ensure code compliant chimney and/or flue-
related work may be performed.

Any consultant or contractor who seeks to enter an adjoining property on
behalf of the licensee developer to maintain commercial general liabil-
ity (CGL) insurance that provides coverage to third parties for damage
to persons or property and provide evidence of such insurance to the
adjoining property owner. Doing so would effectively ensure that any
damage to adjoining property and personal injury to persons present on
adjoining property are covered. The CGL coverage requirements will near-
ly always, barring an exceptional circumstance, provide adequate mone-
tary coverage for damage caused to a neighboring property.  Providing
such insurance should negate the need for a court to establish an escrow
fund or place a surety bond to cover future claims of damage.  Ensuring
such a requirement was carried out could he monitored through the City's
Department of Buildings. The Department of Buildings already requires
minimum, mandatory insurance limits to pull certain permits on the
development site, and these requirements could be expanded to include
evidence that neighboring property owners have been included as addi-
tional insureds cn the relevant CGL policies of insurance. A submission
of a certificate of insurance showing appropriate legal entities named
as additional insureds. As part of the written notification to a neigh-
boring property owner (as contemplated below), the statute should
require the licensee or the party entering the adjoining property (e.g.,
a consultant or contractor) on behalf of the licensee to provide a writ-
ten confirmation that it will agree to include the neighboring owner and
affected lessees as additional insureds on such licensee's and/or
consultant/contractor's CGL insurance.

Authorize the court, where appropriate, to require the licensee to pay
reasonable fees incurred by the neighbor to engage an architect or engi-
neer to review and comment upon protection plans. To encourage solutions
to the process, the statute should stipulate that the failure by an
adjacent property owner to substantively respond to the information
provided by the owner required above (i.e.  pre-construction survey,
proof of insurance, plans, predicted schedules) should be permissible
evidence in weighing the award of future license for access to a devel-
oper via an RPAPL 881 proceeding.

This bill will explicitly empower the court to award attorneys' fees
against a party who has acted unreasonably or in bad faith in connection
with the refusal to grant access to entities seeking access to install
property protections require by the New York City Construction Code
and/or New York City Department of Buildings, which refusal results in
the commencement of litigation and award of license. Furthermore, the
court can award fees to either party for acting unreasonably or in bad
faith.

This bill will ensure that new construction owners and adjacent property
owners have very clear rights associated with construction.  Passage of
this bill will improve transparency for adjoining owners, better protect
adjoining owners, and encourage resolutions to disputes that protect all
parties.

 
LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately:

2021-S8430A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8430--A
 
                             I N  S E N A T E
 
                             February 28, 2022
                                ___________
 
 Introduced by Sens. COMRIE, SEPULVEDA -- read twice and ordered printed,
   and  when  printed  to  be  committed to the Committee on Judiciary --
   committee discharged, bill amended, ordered reprinted as  amended  and
   recommitted to said committee
 
 AN  ACT  to  amend  the  real  property  actions and proceedings law, in
   relation to access to  adjoining  property  to  make  improvements  or
   repairs

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 881 of the real property  actions  and  proceedings
 law,  as added by chapter 220 of the laws of 1968, is amended to read as
 follows:
   § 881. Access to adjoining property to make improvements  or  repairs.
 1.  AS USED IN THIS SECTION THE TERM "DOCUMENT" SHALL INCLUDE BUT NOT BE
 LIMITED TO COPIES OF ANY  PLANS,  SPECIFICATIONS,  SURVEYS,  ENGINEERING
 REPORTS OR EVIDENCE OF INSURANCE FOR THE WORK TO BE PERFORMED ON ADJOIN-
 ING PROPERTY.
   2.  When  an  owner or lessee seeks to make improvements or repairs to
 real property so situated that such improvements or  repairs  cannot  be
 made  by the owner or lessee without entering the premises of an adjoin-
 ing owner or his lessee, and permission so to enter  has  been  refused,
 the  owner  or  lessee  seeking to make such improvements or repairs may
 commence a special proceeding for a license  so  to  enter  pursuant  to
 article four of the civil practice law and rules. The petition and affi-
 davits,  if  any,  shall state the facts making such entry necessary and
 the date or dates on which entry  is  sought.  ANY  ADJOINING  OWNER  OR
 LESSEE  NAMED  AS A PARTY IN SUCH PROCEEDING MAY, AT THE REQUEST OF  THE
 OWNER OR LESSEE SEEKING SUCH ENTRY, PROVIDE SUCH OWNER  OR  LESSEE  WITH
 SUCH  INFORMATION  AS  SHALL  ALLOW  THE OWNER OR LESSEE TO IDENTIFY THE
 LESSEES OF THE ADJOINING OWNER AND JOIN THEM  IN  THE  PROCEEDING.  Such
 license  shall  be  granted by the court in an appropriate case AND upon
 such OTHER terms as justice requires. The licensee shall  be  liable  to
 the  adjoining  owner  or  his  lessee for actual damages occurring as a
 result of the entry.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD14811-02-2
 S. 8430--A                          2
 
   3. THE PURPOSES FOR WHICH AN OWNER OR LESSEE MAY  SEEK  PERMISSION  TO
 ENTER  AN  ADJOINING  PROPERTY  PURSUANT  TO THIS SECTION SHALL INCLUDE,
 WITHOUT LIMITATION:
   A.   PRECONSTRUCTION SURVEY TO DOCUMENT THE EXISTING CONDITIONS OF THE
 ADJOINING PROPERTY;
   B. THE  INSTALLATION,  MAINTENANCE,  INSPECTION,  REPAIR,  REPLACEMENT
 AND/OR REMOVAL OF: (I) VIBRATION, CRACK OR OPTICAL MONITORING DEVICES ON
 OR  WITHIN  ANY  EXISTING  IMPROVEMENTS  ON THE ADJOINING PROPERTY; (II)
 SHEDS, BRIDGES, NETTING OR OTHER  PROTECTIVE  COVERING  OVER  THE  ROOF,
 FACADES,  WINDOWS,  SKYLIGHTS,  MECHANICAL  EQUIPMENT, CHIMNEYS OR OTHER
 EXTERIOR PORTIONS OF BUILDINGS OR YARDS, WALKWAYS,  DRIVEWAYS  OR  OTHER
 OPEN  AREAS  ON THE ADJOINING PROPERTY; (III) SCAFFOLDING ON OR OVER THE
 ADJOINING PROPERTY; (IV) SHEETING, SHORING, BRACING OR  OTHER  RETAINING
 STRUCTURES  NEEDED FOR DEMOLITION, SUPPORT OF EXCAVATION; (V) FOUNDATION
 OR BUILDING SUPPORTS, INCLUDING, WITHOUT  LIMITATION,  WALL  TIES,  TIE-
 BACKS,  ANCHORS,  STRAPS  AND  UNDERPINNING,  FOR ANY DEMOLITION, NEW OR
 EXISTING IMPROVEMENTS, ON THE  PREMISES  OF  THE  GRANTEE  OR  ADJOINING
 OWNER;  INCLUDING,  WITHOUT  LIMITATION,  PARTY WALLS; OR (VI) FLASHING,
 SEALING OR OTHER MATERIALS OR EQUIPMENT NEEDED TO ESTABLISH THE WEATHER-
 PROOF INTEGRITY OF ANY WALL, FOUNDATION OR OTHER EXTERIOR PORTION  OF  A
 BUILDING ON THE ADJOINING PROPERTY;
   C.  TEMPORARY  PROJECTIONS  OR  INTRUSIONS  INTO  THE  AIRSPACE OF THE
 ADJOINING PROPERTY AS NECESSARY TO COMPLETE THE PROPOSED IMPROVEMENTS OR
 REPAIRS;
   D. TEMPORARY OR PERMANENT RELOCATION, EXTENSION OR OFFSETTING  OF  ANY
 CHIMNEYS,  VENTS,  FLUES,  EXHAUSTS  OR  OTHER  ROOFTOP EQUIPMENT ON THE
 ADJOINING PROPERTY, AS REQUIRED BY APPLICABLE LAW;
   E. CONSTRUCTION STAGING NECESSARY TO COMPLETE ANY WORK ON THE  ADJOIN-
 ING PROPERTY; OR
   F. THE UNDERTAKING OF SUCH OTHER MEASURES AS MAY BE REQUIRED BY APPLI-
 CABLE LAW OR GOOD CONSTRUCTION PRACTICE.
   4.  THE  GRANT  OF  ANY  PERMISSION  PURSUANT TO THIS SECTION SHALL BE
 SUBJECT TO THE FOLLOWING CONDITIONS:
   A. THE EXERCISE OF ANY RIGHT OF ENTRY TO THE ADJOINING PROPERTY  SHALL
 BE  UPON  REASONABLE  PRIOR  NOTICE TO THE ADJOINING OWNER OR LESSEE, AS
 APPLICABLE AND AS THE COURT MAY ESTABLISH, EXCEPT IN CASES OF  AN  EMER-
 GENCY POSING AN IMMEDIATE THREAT TO THE SAFETY OF PERSONS OR PROPERTY;
   B.  THE  GRANTEE  SHALL  PROVIDE  TO THE ADJOINING OWNER OR LESSEE, AS
 APPLICABLE AND AS  REASONABLY PRACTICABLE BUT  NO  LATER THAN THE DELIV-
 ERY DATE OF THE APPLICABLE NOTICE REQUIRED PURSUANT TO  PARAGRAPH  A  OF
 THIS  SUBDIVISION,  A  GOOD  FAITH PROJECTION OF THE DATES AND ESTIMATED
 DURATION OF ANY ENTRY TO THE ADJOINING PROPERTY. THE GRANTEE SHALL THER-
 EAFTER MAKE DILIGENT EFFORTS TO ADHERE TO SUCH DATES AND DURATIONS;
   C. WHERE PERMISSION INCLUDES A RIGHT TO  INSTALL,  MAINTAIN,  INSPECT,
 REPAIR,  REPLACE  OR REMOVE ANY DEVICES, STRUCTURES, MATERIALS OR EQUIP-
 MENT ON THE ADJOINING PROPERTY, THE GRANTEE SHALL PROVIDE TO THE ADJOIN-
 ING OWNER OR LESSEE, AS APPLICABLE, COPIES  OF  ANY  RELEVANT  DOCUMENTS
 PRIOR TO COMMENCEMENT OF SUCH WORK;
   D.  THE  GRANTEE  AND ANY CONTRACTOR, CONSULTANT OR AGENT THEREOF THAT
 ACCESSES THE ADJOINING PROPERTY PURSUANT TO THE  LICENSE  SHALL  PROCURE
 AND  MAINTAIN  COMMERCIAL  GENERAL  LIABILITY  INSURANCE  FOR  DAMAGE TO
 PERSONS OR PROPERTY, NAMING THE OWNER AND ANY APPLICABLE LESSEE  OF  THE
 ADJOINING PROPERTY MADE KNOWN TO GRANTEE AS ADDITIONAL INSUREDS, IN SUCH
 AMOUNTS  AS  ARE  COMMERCIALLY REASONABLE FOR THE ENTRY TO THE ADJOINING
 PROPERTY. THE GRANTEE SHALL PROVIDE THE OWNER AND ANY APPLICABLE  LESSEE
 OF THE ADJOINING PROPERTY WITH RELEVANT APPROVED DOCUMENTS; AND
 S. 8430--A                          3
 
   E.  THE GRANTEE SHALL BE REQUIRED TO REASONABLY COMPENSATE THE ADJOIN-
 ING OWNER OR THEIR LESSEE FOR THE USE AND  OCCUPANCY  OF  THE  ADJOINING
 PREMISES.
   5.  THE COURT, IN GRANTING A LICENSE OR OTHERWISE RESOLVING A PROCEED-
 ING BROUGHT PURSUANT TO THIS SECTION, SHALL BE AUTHORIZED TO:
   A. CONSIDER EVIDENCE THAT EITHER PARTY FAILED TO COMPLY WITH THE TERMS
 OF ANY EXISTING OR PREVIOUSLY EXISTING LICENSE RESPECTING THE SAME PROP-
 ERTY;
   B. OBLIGATE THE GRANTEE TO REIMBURSE THE OWNER OR LESSEE, AS  APPLICA-
 BLE,  OF  THE ADJOINING PROPERTY FOR REASONABLE ARCHITECT'S AND/OR ENGI-
 NEER'S FEES INCURRED IN CONNECTION WITH THE REVIEW OF RELEVANT DOCUMENTS
 FOR THE INSTALLATION, MAINTENANCE, INSPECTION,  REPAIR,  REPLACEMENT  OR
 REMOVAL  OF DEVICES, STRUCTURES, MATERIALS OR EQUIPMENT ON THE ADJOINING
 PROPERTY;
   C. APPROVE, AND OBLIGATE THE LESSEE OR THE OWNER,  AS  APPLICABLE,  OF
 THE  ADJOINING  PROPERTY  TO ACCEPT SUCH DOCUMENTS FOR THE INSTALLATION,
 MAINTENANCE, INSPECTION, REPAIR,  REPLACEMENT  OR  REMOVAL  OF  DEVICES,
 STRUCTURES,  MATERIALS  OR  EQUIPMENT  ON  THE ADJOINING PROPERTY AS THE
 GRANTEE MAY PRESENT DURING THE PROCEEDING;
   D. APPROVE, AND OBLIGATE THE LESSEE TO ACCEPT REASONABLE  COMMENTS  ON
 DOCUMENTS PROPOUNDED BY THE ADJOINING OWNER OR LESSEE OR THEIR EXPERT;
   E.  INSURE FOR PROPERTY AND PERSON IF THERE IS UNIQUE, PHYSICAL OCCUR-
 RENCE CAUSING PHYSICAL DAMAGE TO PROPERTY OR PERSONS; AND
   F. AWARD REASONABLE ATTORNEYS' FEES TO EITHER  PARTY  UPON  A  FINDING
 THAT THE OTHER PARTY ACTED IN BAD FAITH OR ENGAGED IN WILLFUL MISCONDUCT
 IN SEEKING, DENYING, OR CONDITIONING ITS APPROVAL OF THE RIGHTS OF ENTRY
 THAT ARE THE SUBJECT OF THE PROCEEDING.
   §  2.  The  real  property  actions  and proceedings law is amended by
 adding a new section 882 to read as follows:
   § 882. SEVERABILITY. IF ANY PROVISION OF THIS ARTICLE OR THE  APPLICA-
 TION THEREOF TO ANY PERSON OR CIRCUMSTANCES IS HELD INVALID, THE REMAIN-
 DER  OF  THE  ARTICLE  AND  THE  APPLICATION  OF SUCH PROVISION TO OTHER
 PERSONS OR CIRCUMSTANCES SHALL NOT BE AFFECTED THEREBY.
   § 3. This act shall take effect immediately.

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Senate Bill S8430A

Sponsored By

Archive: Last Bill Status - In Assembly Committee

Jun 1, 2022 - Floor Vote

Floor Vote: Jun 1, 2022

May 31, 2022 - Rules Committee Vote

Rules Committee Vote: May 31, 2022

Bill Amendments

co-Sponsors

2021-S8430 - Details

2021-S8430 - Summary

2021-S8430 - Sponsor Memo

2021-S8430 - Bill Text download pdf

co-Sponsors

2021-S8430A (ACTIVE) - Details

2021-S8430A (ACTIVE) - Summary

2021-S8430A (ACTIVE) - Sponsor Memo

2021-S8430A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S8430A

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Sponsored By

Leroy Comrie

Archive: Last Bill Status - In Assembly Committee

Bill Amendments

co-Sponsors

Luis R. Sepúlveda

2021-S8430 - Details

2021-S8430 - Summary

2021-S8430 - Sponsor Memo

2021-S8430 - Bill Text download pdf

co-Sponsors

Luis R. Sepúlveda

2021-S8430A (ACTIVE) - Details

2021-S8430A (ACTIVE) - Summary

2021-S8430A (ACTIVE) - Sponsor Memo

2021-S8430A (ACTIVE) - Bill Text download pdf

Comments