Attorneys Secure Legal Victory in Midtown Manhattan Construction Dispute

NEW YORK, July 30, 2025 –Rosenberg & Estis, P.C., one of New York City’s pre-eminent real estate law firms, has prevailed in a dispute over access rights to an adjacent property in Midtown Manhattan by a developer trying to build a 47-story glass tower next door.

The ruling confirms that, although time is literally money in New York City construction, developers and their counsel should not be too hasty to commence an RPAPL § 881 proceeding.

On July 11, 2025, in the Supreme Court of the State of New York, Judge Verna L. Saunders ordered Joseph Stavrach’s Triangle Assets and David Halberstam of Bruklyn Builders back to the drawing board in a rare denial of their RPAPL § 881 petition for a license to access the landmarked Beaux Arts apartment building at 307 East 44th St. in Turtle Bay.

“The Court agreed with us that their petition was premature because they failed to obtain DOB-approved plans before they commenced the proceeding,” said attorney Brendan Derr, a Member with Rosenberg & Estis Litigation Department. “The ruling confirms our client’s right to deny access to their property without the proper approvals demonstrating the neighbor was ready and able to proceed with its construction work safely and expeditiously.”

Derr, along with Member Michael Pensabene, represented Beaux Arts II LLC, which owns the property at 307 East 44th St.

The dispute centers around a disagreement over the developers’ request for access to Beaux Arts II LLC’s property to, among other things, install temporary protection while they are building a 47-story condominium on the neighboring 303-305 East 44th St. Commenced under Section 881 of New York’s Real Property Actions and Proceedings Law, these types of requests are typically made when a developer needs to enter an adjacent owner’s property temporarily to protect the property and its occupants during the developer’s construction project next door.

However, Derr and Pensabene challenged the petition, arguing that the scope of access demanded by the developers was overly broad, lacked critical details, and would unduly burden their property and its residents. The attorneys also cited critical errors the developers made when they initiated the special proceeding, including failing to provide adequate plans for safety, insurance or compensation for any inconvenience or damage.

Said Pensabene, “The Court agreed that the petition was legally and procedurally weak and ultimately dismissed the entire case—a rare outcome in these types of disputes, which are typically resolved through court-imposed access licenses. The decision is a strong reminder that access rights aren’t automatic and property owners should not be forced to accommodate vague or overly invasive construction requests without proper plans.”

The decision compels the developers to commence a new special proceeding for access or negotiate a license agreement with Beaux Arts II LLC.

It is the second action heard by the Court over the proposed high-rise at 303-305 East 44th St. In March, Beaux Arts II LLC sued to stop work on the site claiming the construction was damaging its building and harming residents. The building owners claimed foundation work was causing flooding and cracks in the walls of 307 East 44th St. and so much dust and debris that one resident had to move out.

Said Derr, “Our client’s concern is for the safety and wellbeing of the residents of their property and this RPAPL § 881 decision reinforces the importance of doing things the right way. Granting open access without Department of Buildings-approved plans or proper engineering review would have left our client vulnerable to unsafe and unregulated work. We simply asked that the petitioner slow down, follow the proper procedures, and respect our client’s rights—and the Court agreed.

 

About Rosenberg & Estis, P.C.

Founded in 1975, Rosenberg & Estis, P.C. is widely recognized as one of New York City’s pre-eminent real estate law firms. R&E provides full-service representation and advice in every aspect of real estate, from performing due diligence and evaluating financing, to handling joint ventures, acquisitions and leasing, construction and design team agreements, property tax exemptions and abatements, land use and zoning matters, Real Property Income & Expense (RPIE) filings, real estate tax certiorari, co-op and condo offering plan filings and board representation, distressed situations workouts, foreclosures and bankruptcies, trust and estate planning, as well as the litigations and negotiations which sometimes ensue when deal-making. R&E’s wealth of experience in New York real estate makes it the ideal thought partner for owners, developers, not-for-profit corporations, educational institutions, sponsors, equity investors and lenders in both real estate transactions and in all court venues.