In RLM TH LLC v. 162 East 70th Street Trust LLC, Adam Leitman Bailey, P.C. succeeded in a Real Property Actions and Proceedings Law  (“RPAPL”) § 881 proceeding commenced against a neighboring homeowner, after Respondent refused to negotiate in good faith with Petitioner concerning, inter alia, construction on a shared party wall between Petitioner’s and Respondent’s townhouses on the Upper East Side.  

Petitioner purchased the townhouse with the purposes of performing a gut renovation and adding a vertical addition to the home.  Over the course of three years, Adam Leitman Bailey, P.C. worked in good faith to negotiate a license agreement with the owner of 162 East 70th Street to temporarily access the property in order to perform multiple renovations to RLM’s townhouse, including, constructing a one-story vertical extension on the shared party wall.  

Throughout the course of the three year negotiations, Respondent repeatedly acted duplicitously towards Petitioner, holding itself to one standard when it came to its own prior renovations of its townhome, while holding Petitioner to an entirely different standard.  

For example, Adam Leitman Bailey, P.C. discovered that Respondent had illegally built on the shared party wall by interfering with Petitioner’s well-settled rights to the use and enjoy the party wall.  

Specifically, Respondent had previously constructed a bulkhead structure on the party wall.  The design of the bulkhead, which included a glass skylight roof and decorative molding, not only prevented Petitioner from constructing its as of right one-story vertical addition on the party wall, the design also contradicted Respondent’s architectural plans filed with the New York City Department of Buildings, which indicated that Respondent would only build the bulkhead up to the property line, which ran through the center of the party wall.  

Instead, Respondent constructed the bulkhead beyond the plane of the party wall, and into Petitioner’s air space.  In addition to constituting a clear encroachment, the design prevented Petitioner from building vertically on that section of the party wall.  

Consistent with its entire disregard for the rights of its neighbors, Ms. Peck also discovered that Respondent had installed a scupper onto the bulkhead, and within the plane of the party wall, which not only further interfered with Petitioner’s right to build on the party wall, but also caused water to improperly drain onto Petitioner’s roof, in violation of the law. 

Adam Leitman Bailey, P.C. also discovered that Respondent’s interference with the party wall was not limited to only the top of the party wall, but also extended to the bottom use of the party wall.  In particular, we found that Respondent had underpinned the party wall in order to permit its elevator to go to the cellar level of its home.  However, Respondent performed this underpinning improperly and negligently in two respects.  

First, Respondent failed to underpin the entire width of the party wall, as required by best engineering practices, thereby reducing the load carrying capacity of the party wall.  

In addition, Respondent only underpinned a limited section of the party wall, as opposed to the entire length of the party wall, thereby creating asymmetry in the distribution of the load on the party wall.  

During the three-year negotiations, Respondent repeatedly imposed a double standard concerning Petitioner’s proposed design of the vertical extension, and the underpinning of the party wall, even though it had performed this exact work during its own prior renovations.

Respondent opposed Petitioner’s § 881 application, arguing that Petitioner was not entitled to the relief sought because RPAPL § 881 was only for temporary access and protection measures, and here, the construction on the shared party wall was permanent in nature.

Respondent also argued that a portion of the party wall was not, in fact, a party wall, but rather an independent masonry wall it constructed when Respondent built its own vertical extension.  In support of this argument, Respondent presented a last-minute property survey of Respondent’s home.  Notably, this argument had never once been raised by Respondent during the negotiations for a license agreement.  

In response to Respondent’s argument that RPAPL § 881 was an improper statute for work on a shared party wall, we argued that while the work on the party wall was admittedly permanent in nature, Petitioner was entitled to perform such work under the well settled principles of party wall law, which entitled the owners of a shared party wall the right to the full use and enjoyment of the party wall, provided that such use does not interfere with the rights of its neighbors to the same use and enjoyment.  Because the access requested under the § 881 application was work on the party wall, and such work would not interfere with Respondent’s use and enjoyment of same, RPAPL § 881 was the proper and controlling statute for the licensed access sought by Petitioner.  

To rebut Respondent’s argument that portions of the party wall were not a party wall, but rather an independent masonry wall, Adam Leitman Bailey, P.C. offered to the Court Respondent’s deed, which expressly indicated that the entire wall in question was a party wall.  Ms. Peck argued that in cases where there is a dispute between a property survey and a land deed, the deed is dominate under controlling New York case law.

We also submitted to the Court numerous images taken of Petitioner’s wooden joists inside the shared party wall, which clearly indicated that the joists were inserted throughout the entire length of the party wall, including the portion of the wall that Respondent was now claiming to be independent.  Therefore, Petitioner’s home had been, and was currently, continuously using the party wall for structural support, further evidencing that the challenged section of the wall was not independent, but was a continuation of the party wall.

Notably, it was also pointed out to the Court that Respondent had failed to bring a counterclaim against Petitioner for declaratory judgment to resolve the disputes concerning the ownership of the wall, and therefore it would be improper for the Court to decide any disputed rights of Respondent’s purported claims regarding whether or not the wall in question was a party wall.  

Justice James agreed with Adam Leitman Bailey, P.C.’s arguments.  First, Justice James found that, as a matter of law, any section of the wall in question in which Petitioner’s joists were inserted, constituted the shared party wall, as described in Respondent’s deed.  Therefore, contrary to Respondent’s argument, because the wall was a shared party wall, Petitioner’s work on the party wall did not constitute a permanent encroachment on Respondent’s home as both parties had an easement to the use and enjoyment of the party wall, and accordingly, Petitioner’s application for such work under RPAPL § 881 was entirely proper.  

Justice Debra A. James also agreed with Adam Leitman Bailey, P.C.’s argument that since Respondent had not filed an answer, let alone, a counterclaim, against Petitioner for declaratory judgment regarding any sections of the party wall that Respondent believed to be independent from the party wall, the Court could not decide this issue raised by Respondent.

Adam Leitman Bailey, P.C.’s Joanna C. Peck and John M. Desiderio secured the victory for and continues to represent Petitioner concerning this matter.