Compelled Access to Neighbor's Property for Construction - RPAPL 881

 I saw a blurb in the law journal today about this decision, In Re 1643 First LLC v. 1645 1st Ave LLC, 2024 NY Slip Op 01111 (1st Dept. 2024), and it deals with an interesting issue that I've addressed a few times on both sides and would like to handle more of.  

A neighbor can be required to give temporary access to their property to enable construction, such as a fence contractor needing to cross the property line to do the work even if the fence itself is going to be on one side of the line.  With fences, hopefully people act neighborly, but it become a major issue in New York City where buildings can be right up to the line and sometimes even share a common wall, and construction projects can involve prolonged periods of scaffolding and similar inconvenience to the neighbors.  Ideally, those issues are worked out voluntarily between the neighbors with a licensing agreement, but sometimes people can't agree or just won't cooperate.  If that happens, RPAPL 881 lets the Court impose a reasonable licensing agreement, which includes a fee for the use of the property, measures to make sure the adjacent owner is fully protected (both in terms of safety issues and in terms of making sure they are fully insured and indemnified), and the neighbor is generally entitled to any reasonable costs and fees they incur.  

In 1643 First v 1645 1st, the lower court judge didn't allow for expansive indemnification language and denied the neighbor's request for fees.  On Appeal, a panel from the First Department (which covers Manhattan and the Bronx, and is great -- they tend to know what they're doing, particularly with these types of issues, and work faster than the other Departments) reversed, finding that the neighboring owner needed to be fully protected, and that the lower court judge cannot deny fees without explaining why they were denied and can only do so if the fees were "unreasonably incurred" or the denial was necessary to "redress the prejudice caused to petitioner by respondent's litigation errors and any other misconduct."