One-time party wall must come down

Support wall became ivied backdrop for lavish garden. In 1867, developers built two adjacent Sutton Place buildings, 441 East 57th Street and 447 East 57th Street, with a shared support wall and entered into a party wall agreement. In the 1910s or 1920s, the owners of 447 East 57th Street demolished their three-story building and, years later, a garden for a neighboring coop replaced the site where the building once stood.

The party wall remained a support wall for the five-story building on the western side. On the eastern side, the wall became an ornamental, ivied backdrop for the charity events and parties hosted in the 1,300-square-foot garden of author Sir Harold Evans and wife/editor Tina Brown, whose co-op apartment opened onto the garden.

In 2004, developer John Kully purchased the remaining five-story building and its air rights for $5.5 million and proposed to demolish his building to construct a 15-story as-of-right condo. When Evans learned of the plan to demolish the wall abutting his garden, he sued. Believing that the Department of Buildings would reject demolition permits, Evans later dropped the suit.

Kully then sued, seeking a court declaration that he could demolish his building and the party wall. Sir Evans and the co-op defended, arguing that Kully needed the co-op’s consent since the wall abutted the co-op and adding that the wall’s location created a right to privacy that prohibited demolition.

The lower court agreed with Kully, ruling that he could demolish his building and the wall since the party wall no longer served its stated purpose of providing joint structural support. Evans and the co-op needed to prove that the wall was a necessity rather than merely a convenience, and, in addition, no privacy right existed.

On appeal, the First Department affirmed, noting that for nearly 80 years Kully’s building alone used the wall for support. The use of the wall by Evans was a “convenience or advantage” not contemplated in the 1867 party wall agreement and the use did not necessitate an easement.

441 East 57 Street LLC v. 447 East 57 Street Corp, 824 N.Y.S.2d 642, (1st Dep’t Nov. 30, 2006).

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