Morrison Cohen Secures License for Permanent Underpinning in Early Test of Amended RPAPL § 881

Morrison Cohen secured a 33-month license in an RPAPL § 881 special proceeding before the New York County Supreme Court, allowing its client to proceed with construction of a new six-story residential building at 247–251 West 16th Street in Manhattan. The decision is among the first to address the 2025 amendments to RPAPL § 881, which authorize courts to grant licenses permitting permanent encroachments onto neighboring properties, including underpinning and tiebacks. Notably, the Court adopted Morrison Cohen’s argument that no separate fee was warranted for the underpinning.

The planned development adjoins a three-story building dating to 1910 that houses a long-standing restaurant. Because the neighboring building sits directly on the shared property line, the New York City Department of Buildings required underpinning, tiebacks and other protective measures to facilitate construction. The adjoining owner characterized the proposed underpinning and tiebacks as “unprecedented” and sought several payments in addition to a license fee, including a one-time $45,000 “underpinning compensation fee.”

In an October 23, 2026 Decision and Order, Justice Kathleen Waterman-Marshall granted the license and rejected the separate underpinning fee. She held that “the statute neither expressly nor implicitly provides for a ‘separate underpinning fee’ in any amount (and certainly not $45,000).”

The Court also found that the adjoining owner had not shown the permanent protections would lower its building’s value. Instead, the record showed they would support the building’s structural integrity. The Court noted that the building “would be endangered by the absence of such underpinning and tiebacks, not the presence of them.”

The Court also rejected the respondent’s escalating license fees, calling them punitive; its request for approval rights over the work, holding that a § 881 license “does not give the adjoining property owner final say over its neighbor’s project”; and its demands for protections beyond the Building Code and the DOB-approved plans.

The respondent sought about $106,600 in attorneys’ fees. The Court cut that award to $35,000, citing the respondent’s delays during negotiations.

The Morrison Cohen team was led by Christopher Milito, Stephen Soleymani and Esti Ness.