SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PB 151 GRAND LLC, Index No.: Petitioner, VERIFIED PETITION -against- 9 CROSBY, LLC, Respondent. Petitioner PB 151 Grand, LLC, by its attorneys, Troutman Sanders LLP, pursuant to CPLR Article 4 and RPAPL 881, against Respondent 9 Crosby, LLC, respectfully alleges the following: 1. Petitioner is, and at all times hereinafter mentioned, a limited liability company and the owner of the real property located at 151 Grand Street, New York, New York (the Premises ), on which there is presently a five-story building. 2. Upon information and belief, Respondent is a limited liability company and the owner of the real property located at 9 Crosby Street, New York, New York (the Adjacent Property ). 3. The Adjacent Property is a 26-story luxury hotel, which abuts the Premises along the southern most wall of the Premises. 4. Petitioner is currently engaged in a construction project that includes, among other things, the gut renovation of the interiors, the renovation of the façade, and the addition of a sixth floor to the existing building on the Premises (collectively, the Project ). 1 1 of 6
5. In order to continue with its as-of-right work at the Premises, and properly protect the Adjacent Property and its occupants, Petitioner requires a license to access the Adjacent Property to install and maintain the Protection Work (defined below). Despite negotiations in an attempt to enter into a license agreement with Respondent, Respondent has refused to allow access to the Adjacent Property. As a result, court intervention is necessary to secure such access. Need for Protection Work 5. As more fully set forth in the accompanying affidavit of Stephen Lampard sworn to on July 10, 2017 ( Expert Aff. ), the Vice President of Technical Affairs at Domani Inspection Services, Inc., in order to protect the Adjacent Property during the Project, and to ensure the safety of their occupants and the public, as required by the New York City Building Code, Petitioner must have access to the Adjacent Property to install and maintain overhead yard and rooftop protection secured to the Adjacent Property (the Protection Work ), as more specifically shown in the site safety plan annexed as Exhibit A to the Expert Affidavit. 6. As set forth in the accompanying affirmation of Patrick M. Ryan dated July 11, 2017, and affidavit of Nazar Altun sworn to on July 7, 2017, Respondent has refused to allow Petitioner to access the Adjacent Property in order to perform the Protection Work. Without the Protection Work, the Project cannot proceed and much needed repairs and renovations to the interior and the façade of the Premises cannot be completed. 7. As a result, the health, life and safety of the Adjacent Property, the Premises, their respective occupants and the general public will be at risk, and Petitioner will incur significant losses and damages. 2 2 of 6
COUNT ONE (Judicial License) 8. Petitioner repeats and realleges the allegations contained in paragraphs 1 through 7 as if fully set forth herein. 9. RPAPL 881 provides that: [w]hen 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. Such license shall be granted by the court in an appropriate case upon such 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. 10. Petitioner has made repeated good faith efforts to negotiate a license agreement with Respondent. However, to date, Respondent has refused Petitioner access to the Adjacent Property. 11. As more fully set forth in the Expert Aff., the Protection Work is necessary because without the Protection Work, the Project will create hazardous conditions to the Adjacent Property and its occupants. The Protection Work, required by the New York City DOB, is temporary in nature and will be removed as soon as the Project is completed. If the Protection Work is removed, the DOB will not allow the Project to proceed. Access to the Adjacent Property is also required because, pursuant to the Building Code, as well as industry-standard engineering practices, the Protection Work cannot otherwise be performed without access to the Adjacent Property. 3 3 of 6
12. Since Respondent has refused access to the Adjacent Property, Petitioner has been left with no alternative but to seek the relief requested herein. 13. By reason of the foregoing, Petitioner is entitled to a license to enter the Adjacent Property for the purposes of installing and maintaining the Protection Work. COUNT TWO (Declaratory Judgment) 14. Petitioner repeats and realleges the allegations contained in paragraphs 1 through 13 as if fully set forth herein. 15. There is an actual and justiciable controversy between Petitioner and Respondent with respect to Petitioner s ability to obtain a license to perform work intended to protect the Adjacent Property, which requires immediate resolution. 16. In the event that a license to perform the Protection Work is not granted, then the burden to protect the Adjacent Property should be imposed on Respondent. 17. Petitioner has no adequate remedy at law. 18. By reason of the foregoing, Petitioner is entitled to a judgment declaring that in the event that Respondent refuses to grant a license for the purposes of performing the Protection Work, it shall be Respondent s duty to preserve and protect the Adjacent Property during the construction of the Project. WHEREFORE, Petitioner respectfully prays that an Order be entered granting: (i) Petitioner a limited license to enter the property owned by Respondent for the purpose of installing the Protection Work for a period of 24 months or such reasonable time thereafter as required by the New York City Department of Buildings, at which time it shall be removed by Petitioner; 4 4 of 6
(ii) Petitioner its reasonable attorneys' fees and costs associated with being compelled to commence these proceedings; and (iii) such other and further relief as this Court deems just and proper. Dated: July 11, 2017 New York, New York TROUTMAN SANDERS LLP By: Aaron Abraham Nicholas M. David Patrick M. Ryan Attorneys for PB 151 Grand LLC 875 Third Avenue New York, New York 10022 (212) 704-6000 To: 9 CROSBY, LLC [by service on the New York Secretary of State] 5 5 of 6
VERIFICATION STATE OF NEW YORK ) ss.. COUNTY OF NEW YORK ) NAZAR ALTUN, being duly sworn deposes and says: I am an individual residing in New York County and am the authorized signatory of PB 151 Grand LLC. 1 affirm under penalty of perjury that I have read the foregoing verified petition and know the contents thereof; that the same are true to my own knowledge except as to those matters stated to be upon information and belief; and as to those matters I believe them to be true. The grounds of my information and belief as to matters not stated upon my knowledge are statements and/or records of PB 151 Grand LLC. Altun Sworn to before me this ~ day of July, 2017. Notary Public NICHOLAS M. DAVID Notary Public, State of New York No. 02DA6229805 Qualified in Westchester County Commission Expires October 25, 2018 6 6 of 6