S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1305
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 11, 2023
                                ___________
 
 Introduced by Sens. COMRIE, SEPULVEDA -- 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.  AS  USED  IN THIS SECTION: (A) THE TERM "DOCUMENT" SHALL INCLUDE BUT
 NOT BE LIMITED TO COPIES OF ANY PLANS,  SPECIFICATIONS,  SURVEYS,  ENGI-
 NEERING REPORTS OR EVIDENCE OF INSURANCE FOR THE WORK TO BE PERFORMED ON
 ADJOINING PROPERTY;
   (B)  THE TERM "LICENSEE" SHALL REFER TO THE OWNER OR LESSEE, AS APPLI-
 CABLE, WHO SEEKS ENTRY ONTO AN ADJOINING PROPERTY;
   (C) THE TERM "ADJOINING OWNER" SHALL REFER TO THE OWNER OR ITS  LESSEE
 OF THE PROPERTY ADJOINING THAT OF THE LICENSEE; AND
   (D)  THE  TERM  "REFUSE",  "REFUSAL",  OR "REFUSED" SHALL BE DEEMED TO
 INCLUDE INSTANCES WHERE A REQUEST HAS BEEN MADE IN WRITING AND THERE  IS
 A  SUBSEQUENT  ABSENCE OF ANY AFFIRMATIVE RESPONSE WITHIN A COMMERCIALLY
 REASONABLE TIME.
   2. When [an owner or lessee] A LICENSEE seeks to make improvements  or
 repairs  to  real property so situated that such improvements or repairs
 cannot be made by the [owner  or  lessee]  LICENSEE  IN  A  COMMERCIALLY
 REASONABLE  MANNER  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]  LICENSEE  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-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03173-02-3
              

 S. 1305                             2
 
 davits, if any, shall state the facts [making such entry  necessary  and
 the date or dates on which entry is sought] SUPPORTING THE ENTRY AND THE
 DATE  OR DATES UPON WHICH ENTRY IS SOUGHT.  ANY ADJOINING OWNER NAMED AS
 A  PARTY  IN  SUCH  PROCEEDING  SHALL,  AT  THE REQUEST OF THE LICENSEE,
 PROVIDE SUCH LICENSEE WITH SUCH INFORMATION AS SHALL ALLOW THE  LICENSEE
 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.
   3. THE PURPOSES FOR WHICH A LICENSEE MAY SEEK PERMISSION TO  ENTER  AN
 ADJOINING PROPERTY PURSUANT TO THIS SECTION SHALL INCLUDE, WITHOUT LIMI-
 TATION:
   (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 OR 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  LICENSEE  OR  ADJOINING
 OWNER,  INCLUDING,  WITHOUT  LIMITATION,  PARTY WALLS; OR (VI) FLASHING,
 SEALING OR OTHER MATERIALS OR EQUIPMENT NEEDED TO ESTABLISH  THE  WEATH-
 ER-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
 APPLICABLE 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, AS APPLICABLE
 AND AS THE COURT MAY ESTABLISH, EXCEPT IN CASES OF AN  EMERGENCY  POSING
 AN IMMEDIATE THREAT TO THE SAFETY OF PERSONS OR PROPERTY;
   (B)  THE  LICENSEE SHALL PROVIDE TO THE ADJOINING OWNER, AS APPLICABLE
 AND AS REASONABLY PRACTICABLE BUT NO LATER THAN THE DELIVERY DATE OF THE
 APPLICABLE NOTICE REQUIRED PURSUANT TO PARAGRAPH (A)  OF  THIS  SUBDIVI-
 SION, A GOOD FAITH PROJECTION OF THE DATES AND ESTIMATED DURATION OF ANY
 ENTRY  TO  THE  ADJOINING  PROPERTY.  THE LICENSEE SHALL THEREAFTER MAKE
 COMMERCIALLY REASONABLE EFFORTS TO ADHERE TO SUCH DATES AND DURATIONS OR
 PROVIDE TIMELY NOTIFICATION OF CHANGES THERETO;
   (C) WHERE PERMISSION INCLUDES A RIGHT TO INSTALL,  MAINTAIN,  INSPECT,
 REPAIR,  REPLACE  OR REMOVE ANY DEVICES, STRUCTURES, MATERIALS OR EQUIP-
 S. 1305                             3
 
 MENT ON THE ADJOINING PROPERTY, THE GRANTEE LICENSEE  SHALL  PROVIDE  TO
 THE  ADJOINING  OWNER,  AS  APPLICABLE, COPIES OF ANY RELEVANT DOCUMENTS
 PRIOR TO COMMENCEMENT OF SUCH WORK;
   (D)  THE  LICENSEE  AND/OR 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 ADJOINING OWNER AND/OR ITS LESSEE(S),
 AS APPLICABLE AND MADE KNOWN TO LICENSEE,  AS  ADDITIONAL  INSUREDS,  IN
 SUCH AMOUNTS AS ARE COMMERCIALLY REASONABLE FOR THE ENTRY TO THE ADJOIN-
 ING  PROPERTY.  THE  LICENSEE  SHALL PROVIDE THE ADJOINING OWNER AND ITS
 LESSEES, AS APPLICABLE, WITH RELEVANT DOCUMENTS; AND
   (E) THE LICENSEE  SHALL  BE  REQUIRED  TO  REASONABLY  COMPENSATE  THE
 ADJOINING OWNER 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
 PROPERTY, OR FAILED TO RESPOND TO A WRITTEN REQUEST WITHIN A COMMERCIAL-
 LY REASONABLE TIME;
   (B) OBLIGATE THE LICENSEE TO REIMBURSE THE ADJOINING OWNER FOR REASON-
 ABLE  ARCHITECT'S AND/OR ENGINEER'S FEES INCURRED IN CONNECTION WITH THE
 REVIEW  OF  RELEVANT  DOCUMENTS  FOR  THE   INSTALLATION,   MAINTENANCE,
 INSPECTION, REPAIR, REPLACEMENT OR REMOVAL OF DEVICES, STRUCTURES, MATE-
 RIALS OR EQUIPMENT ON THE ADJOINING PROPERTY;
   (C) APPROVE, AND OBLIGATE THE ADJOINING OWNER 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 LICENSEE MAY PRESENT DURING THE PROCEEDING;
   (D)  APPROVE,  AND OBLIGATE THE LICENSEE TO ACCEPT REASONABLE COMMENTS
 ON DOCUMENTS PROPOUNDED BY THE ADJOINING OWNER;
   (E) INSURE FOR DAMAGE TO PROPERTY AND  PERSONS  IF  THERE  IS  UNIQUE,
 PHYSICAL  OCCURRENCE  CAUSING  PHYSICAL  DAMAGE  TO  PROPERTY OR PERSONS
 CAUSED BY THE ACCESS; 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.