Duane Morris was ranked in the top 10 among the 2026 Top 50 Construction Law Firms by Construction Executive. Selected for excellence and prominence in the field of construction law, this marks the firm’s sixth consecutive appearance in the top 50 list.
Read more about this recognition on the Duane Morris LLP website.
The New York Appellate Division, Second Department’s recent decision in Matter of QB Development Owner, LLC v. Hensley, confirms that RPAPL 881 authorizes court-ordered access not only for active construction activities but also for post-construction remedial work necessary to complete a project and obtain a certificate of occupancy. The decision represents a significant development in the Second Department’s evolving RPAPL 881 jurisprudence. While the Court reaffirmed the familiar equitable principles governing applications for temporary access licenses, the decision is noteworthy because it applies those principles in the post-construction context, confirming that RPAPL 881 remains available when temporary access is necessary to remedy construction-related conditions and satisfy regulatory requirements.
The dispute arose after construction of the petitioner’s project was substantially complete. During construction, the parties entered into a license agreement permitting the developer to access the adjoining property, but that agreement eventually expired. Thereafter, the developer discovered that a portion of a concrete slab encroached onto the neighboring property. When the adjoining owners refused access to remove the encroachment, the New York City Department of Buildings advised that it would not issue a certificate of occupancy until the condition was corrected. After the parties were unable to negotiate a new license agreement, the developer commenced an RPAPL 881 proceeding seeking temporary access to the adjoining property to remove the encroachment.
Affirming the Supreme Court’s order granting the license, the Second Department reiterated that RPAPL 881 requires courts to balance the competing interests of the parties by considering, among other things, the necessity and scope of the requested access, the duration of the intrusion, the availability of reasonable alternatives, the public interest in completion of the project, and the protections afforded to the adjoining owner. Applying those principles, the Court concluded that the proposed work could be completed in approximately three days without jeopardizing either structure, was necessary to obtain a certificate of occupancy, and adequately protected the adjoining owners through a license fee, insurance coverage, and compensation for any resulting damage.
QB Development Owner represents a continuation of the Second Department’s increasingly pragmatic interpretation of RPAPL 881. In Matter of Queens Coll. Special Projects Fund, Inc. v. Newman, the Court emphasized that temporary licenses should be granted where necessary to facilitate construction while protecting adjoining owners through reasonable conditions. The Court further refined that framework in Matter of Voron v. Board of Managers of the Newswalk Condominium, identifying the principal factors governing the equitable balancing analysis, including the necessity of the requested access, the duration of the intrusion, available alternatives, the public interest in completion of the project, and financial protections for the neighboring owner. QB Development Owner does not change those principles; rather, it demonstrates that they apply with equal force when access is required to remedy a construction-related condition after substantial completion of the work.
The Court also rejected the adjoining owners’ argument that the controversy became academic upon expiration of the parties’ prior license agreement. Consistent with its reasoning in Franklin Carroll, LLC v. Carroll Development Plaza, LLC, the Court concluded that changing circumstances do not necessarily moot an RPAPL 881 proceeding where access remains necessary to complete the project. The decision recognizes that unforeseen issues may arise after construction, requiring temporary access even after an original license agreement has expired.
QB Development Owner reinforces the expansive reach and equitable nature of RPAPL 881 proceedings. The decision confirms that the statute is not intended merely to facilitate construction activities but to provide courts with sufficient flexibility to resolve access disputes whenever temporary entry is necessary to complete lawful improvements or satisfy regulatory requirements. Construction projects often require additional work after substantial completion. Corrective work, punch-list items, Department of Buildings requirements, and the removal of encroachments may all require temporary access to adjoining property. This decision confirms that RPAPL 881 remains available in those circumstances, provided the requested access is necessary, limited in scope, and includes appropriate protections for the adjoining owner.
Together with Queens College, Voron, and Franklin Carroll, QB Development Owner further confirms the Second Department’s view that RPAPL 881 is a flexible equitable remedy that permits necessary construction and post-construction work while protecting adjoining owners through appropriate court-imposed conditions. For developers, the decision provides assurance that RPAPL 881 remains available when unforeseen conditions discovered after substantial completion require temporary access to neighboring property. For adjoining owners, the decision reinforces that courts will continue to balance competing interests through license fees, insurance requirements, and compensation for any resulting damages.
Jose A. Aquino (@JoseAquinoEsq on X) is a special counsel at Duane Morris LLP’s New York office, where he is a member of Construction Group, specializing in construction law, lien law, and government procurement law. He is also a member of the Cuba Business Group.
This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed herein are those of the author and do not necessarily reflect the views of Duane Morris LLP or its individual attorneys.
The Duane Morris Construction Group was ranked by The Legal 500 in Real Estate: Construction (including construction litigation), and Partner Brian Shue was named as a “Next Generation Partner.”
Duane Morris is pleased to announce that Chambers USA has once again nationally recognized our Construction Group as well as construction attorneys across the country.
Here’s what our clients are saying about our construction attorneys:
Tracy L. McCreight: Construction
Jeffrey L. Hamera: Construction
Charles B. Lewis: Construction
Scott D. Kravetz, P.A.: Construction
Mark Canizio: Construction
Frederick Cohen, Construction
Allen J. Ross: Construction: Mediators
Brian A. Shue: Construction
Kenneth H. Lazaruk: Construction and Construction: Mediators
Patrick J. Kearney: Construction
The term “piggybacking” in public contracting refers to a municipality using another government’s existing contract instead of running its own competitive bid. In Daniel J. Lynch, Inc. v. Board of Education of the Maine‑Endwell Central School District, the New York Appellate Court made it clear that this shortcut has strict limits. The court held that a school district cannot award a public‑works construction contract by piggybacking through a cooperative purchasing system. Under New York’s General Municipal Law, piggybacking is permitted only for buying goods and related services, not for construction or renovation projects. The decision underscores that cooperative purchasing is a narrow exception, not a substitute for the competitive bidding requirements that govern public‑works contracts.
The school district had finished phase one of a multiyear capital project. When phase two—HVAC upgrades and classroom construction—was delayed by the State Education Department, the district chose not to wait. Instead of putting the HVAC work out for competitive bidding, it turned to a “piggyback” contract through The Interlocal Purchasing System (TIPS). TIPS, a Texas‑based cooperative formed in 2002, allows municipalities nationwide to use contracts and pricing it has already secured. Using its preapproved vendor list, TIPS matched the district with a contractor based on pre‑negotiated pricing.
Local contractors challenged the award, claiming the district sidestepped the competitive bidding rules required under the General Municipal Law. The Supreme Court agreed, ruling that the district’s use of TIPS amounted to improper piggybacking for a public works project. While the court allowed the contractor to finish the HVAC work already underway, it prohibited the district from relying on TIPS or similar cooperatives for the remaining phases of the project.
The Appellate Division affirmed the ruling. It emphasized that General Municipal Law § 103(16)—the statute permitting piggybacking—covers only purchases of “apparatus, materials, equipment or supplies” and related installation or maintenance services. It does not mention public works contracts. As the court explained, leaving out public works contracts from the statute shows that the Legislature did not intend to exempt them from competitive bidding. The legislative history supported this point: when the provision was enacted, lawmakers described it as a tool for cooperative purchasing, not a way to award construction or renovation projects.
The court also dismissed the contractor’s appeal for lack of harm, since none of the relief sought against the contractor—such as repayment, an injunction, or fees—was granted. The contractor’s claim that the ruling might affect its future business was too speculative to give it standing. The court’s decision is clear: cooperative purchasing cannot be used to avoid competitive bidding for public works. It is a limited exception meant only for buying goods and related services.
Jose A. Aquino (@JoseAquinoEsq on X) is a special counsel at Duane Morris LLP’s New York office, where he is a member of Construction Group, specializing in construction law, lien law, and government procurement law. He is also a member of the Cuba Business Group.
This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed herein are those of the author and do not necessarily reflect the views of Duane Morris LLP or its individual attorneys.
Five Construction Risks that Rarely Make it onto the Agenda
By Owen Newman
Every construction GC has three piles on their desk. A speaker at an ethics CLE early in my legal career named them.
The small one up front: the work they love. The medium one in the corner: the work they tolerate. And the large one accumulating out of sight — the work they avoid. He called that one the malpractice pile.
He was right to name it. The work you avoid has a way of coming due. But the image stayed with me for a different reason.
After eight years of legal practice, and before joining my current firm, I spent six years at Black & Veatch — in project risk management, as a project manager on a power generation megaproject, and as Regional Director for GCC Power Generation. Across those roles, the avoidance pile, while serious, was never the most dangerous one.
Continue reading “The Invisible Pile”By Owen Newman
Building on Adrian Moffatt’s “The GC Communication Guide: CFO Edition”
General Counsel are lawyers, but they are also executives — and like any executive, they have clients of their own. The CEO, the CFO, the Board: stakeholders who measure risk in dollars and quarters, not legal standards and motion deadlines. What makes perfect sense in the legal department’s conference room doesn’t always translate to the boardroom. Bridging that gap is one of the GC’s most demanding roles — and in some ways, harder than what outside counsel face. The GC doesn’t get to pick her clients.
Continue reading “The Briefing Outside Counsel Owes You Before the CFO Meeting”By Owen Newman
Here is a contract maintenance checklist built around the same idea as my last post: the wall is strongest when both parties show up and walk it together. From project kick-off to senior leadership check-ins, the checklist provides jumping-off points for developing agendas and guiding purposeful communication between owners and contractors together.
Continue reading “Construction Maintenance Checklist: A Practical Guide for Owners and Contractors”
The appellate decision in Landscape Details, Inc. v. Bernard is a reminder that courts are hesitant to dismiss claims at an early stage. The case involved a contractor who performed a landscaping project for a homeowner who was also the contractor’s employee. The parties allegedly agreed that the contractor would be paid through the employee’s bonuses, with any unpaid balance becoming due if the employee left the company before the balance was paid. When the employment ended and no payment was made, the contractor sued to recover the unpaid balance.
The defendant moved to dismiss, arguing that the claim was barred by the statute of frauds because the agreement was oral and could not be performed within one year. The court rejected that argument, reasoning that the statute of frauds applies only if the agreement could not be completed within a year. Since the alleged agreement provided that the balance would become due upon the employee’s termination—a contingency that could occur within a year—the court concluded that this possibility was sufficient to defeat the statute‑of‑frauds defense at the pleading stage.
The defendant also argued that the agreement was for the sale of goods over $500 and therefore unenforceable without a writing under the Uniform Commercial Code. The court also rejected that argument, noting that even if the UCC applied, there is an exception where goods are received and accepted. The court found that the contractor’s allegations were sufficient to fall within that exception.
The decision holds that oral agreements in a construction setting may be enforceable where performance is alleged, and that statute‑of‑frauds defenses do not warrant dismissal at the pleading stage when the agreement could be performed within one year or falls within a recognized exception. The decision also underscores that, on a motion to dismiss, the court does not assess the ultimate merits but examines only whether the plaintiff has stated a viable claim; if the alleged facts, accepted as true, fit within any cognizable legal theory, the action survives dismissal.
Jose A. Aquino (@JoseAquinoEsq on X) is a special counsel at Duane Morris LLP’s New York office, where he is a member of Construction Group, specializing in construction law, lien law, and government procurement law. He is also a member of the Cuba Business Group.
This blog is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed herein are those of the author and do not necessarily reflect the views of Duane Morris LLP or its individual attorneys.
Anna Spicer co-authored the Construction Executive article “Balancing the Right to Repair With Evidence Preservation in Construction Defect Litigation.”
Every major construction project comes with risk, whether it’s a warehouse build, a multifamily development or a major renovation. Parties tend to be aligned when things are proceeding as planned. But when something goes wrong—cracked concrete, water intrusion, systems that don’t perform as expected—those interests can quickly diverge.
Read the full article on the Construction Executive website.
