After providing a brief overview of the statute, a previous article (NYLJ, April 19) explored open issues in litigating cases brought under Section 881 of New York’s Real Property Actions and Proceedings Law (RPAPL), an important statute in real estate development that governs efforts to compel access to adjoining property to perform work on one’s own property, and provides an opportunity for a building owner or developer to obtain a court-ordered license for that purpose. This article explores five common pitfalls to avoid when bringing an RPAPL §881 proceeding. Readers should remember that a pitfall is a situation presenting a hidden or unexpected danger or difficulty—it is not necessarily an error.
Pitfall 1: Failing to Consider Whether to Commence the Proceeding by Order to Show Cause or Notice of Petition and Petition. Special proceedings, including RPAPL §881 proceedings, are governed by Article 4 of the CPLR. A special proceeding can be commenced by notice of petition and petition, or an order to show cause with a supporting petition.1 The careful practitioner should weigh the pros and cons of each method of commencing an RPAPL §881 proceeding.
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