Background
In 2022, Alan and Samantha Weiss undertook renovation work on their Brooklyn property, including work on a terrace that abutted the exterior wall of an adjoining property owned by Deborah Rennie-Walker. As part of the renovation, the Weisses’ contractors removed weatherproofing from Rennie-Walker’s adjoining wall and replaced it with new weatherproofing—work performed on her property without her permission. Rennie-Walker commenced an action in 2023 against the Weisses and another defendant, asserting causes of action for injunctive relief, trespass, private nuisance, and attorney’s fees. She simultaneously moved for a preliminary injunction barring any further work on her property without her permission.
The Weisses cross-moved under CPLR 3211(a) to dismiss the trespass and nuisance claims insofar as they were based on the weatherproofing work, and to dismiss the injunctive relief and attorney’s fees causes of action. The Supreme Court, Kings County (Frias-Colón, J.) granted Rennie-Walker’s preliminary injunction, denied the Weisses’ dismissal motion—and then, on its own initiative, converted the entire plenary action into a special proceeding under RPAPL 881. The Weisses appealed.
Real Property Actions and Proceedings Law (RPAPL) § 881 provides a distinct statutory mechanism by which a property owner who needs access to an adjoining owner’s property for construction or repair may seek a court-ordered license upon payment of a “reasonable fee” to the adjoining owner. It is routinely used in New York City when a developer needs to erect protective sidewalk bridges, scaffolding, or underpinning on adjacent property during construction.
The Court’s Holding
The Second Department modified and affirmed. On the sua sponte RPAPL 881 conversion, the court held that the trial court had no authority to convert the plenary action into a special proceeding on its own motion. RPAPL 881 contemplates a petition filed by the party seeking access; it is not a vehicle for a trial court to unilaterally reframe an existing tort action between an aggrieved adjoining owner and a trespassing neighbor. The conversion was reversed, and the matter was remitted to fix an appropriate undertaking for the preliminary injunction under CPLR 6312.
On the motion to dismiss, the Second Department affirmed denial. The trespass and nuisance claims based on the weatherproofing work survived because touching another’s property without permission—even if motivated by a mistaken belief that consent exists—can constitute trespass, and a landowner who directs independent contractors to perform work on an adjoining property can be liable for the resulting trespass. The complaint adequately alleged all trespass and nuisance elements. The court further affirmed that the plaintiff’s preliminary injunction motion was properly granted: there was a likelihood of success on the merits (given the adequately pleaded trespass claims) and the continuation of unauthorized work on her wall would cause irreparable harm not compensable by damages alone.
Key Takeaways
- A trial court cannot sua sponte convert a plenary trespass/nuisance action into an RPAPL 881 special proceeding; RPAPL 881 must be initiated by the petitioning property owner who needs access, and a court cannot impose that framework on an action the aggrieved adjoining owner has chosen to litigate as a tort case.
- Trespass liability can attach where a property owner directs contractors to perform work on an adjoining property without the neighbor’s permission, even if the trespassing party mistakenly believed it had the right to enter; good faith is not a defense to intentional (if mistaken) trespass.
- A private nuisance claim and a trespass claim based on the same unauthorized construction activity on an adjoining wall are not duplicative and may proceed together; each protects distinct interests (exclusive possession vs. freedom from unreasonable interference).
- Brooklyn and NYC developers whose renovation plans require touching or weatherproofing a neighbor’s wall should obtain the neighbor’s written consent or pursue an RPAPL 881 license before commencing work—unauthorized contact with an adjoining property can result in injunctive relief and a plenary damages action that RPAPL 881’s fee-based framework was designed to avoid.
Why It Matters
In New York City’s dense urban construction environment, disputes over access to adjacent property walls are among the most common and contentious real-estate-adjacent litigations. RPAPL 881 proceedings provide a mechanism for courts to calibrate access rights and compensation—but that framework requires the party seeking access to invoke it. When a developer or renovating neighbor bypasses both the neighboring owner’s consent and RPAPL 881, they face the full arsenal of trespass and nuisance remedies, including preliminary injunctions that can stop construction cold.
This decision serves as a warning to Brooklyn (and broader NYC) property owners undertaking renovations near shared walls: removing and replacing weatherproofing on a neighbor’s wall—even with ostensibly good intent—is trespass if done without permission. Practitioners representing clients in similar disputes should note that trying to convert the neighbor’s trespass action into an RPAPL 881 proceeding (or seeking the court to do so) is not a path available once the aggrieved neighbor has filed a plenary action—the tort case will proceed on its own terms.