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L..,1±JE000P/CQNDQ HELPLINE’
Fighting City Hall
by Carol Siginond
Dunningeon, Bartholow 6’ Miller LLP
Over the last year, I have dedicated this column
to educating and informing managing agents
and members of condominium and coopera
tive boards of directors about construction and building issues.
This month’s column is intended to encourage you to use all
legitimate resources at your disposal to resist or oppose what you
believe are unfair Notices of Violation (NOV) issued by various
New York City agencies, such as the Department of Buildings
(DOB), Department of Transportation (DOT), Department of
Sanitation (DOS), and the Department of Environmental Pro
tection (DEP). In future columns, I will provide practical advice
about how to mount opposition to the NOV at the Environ
mental Control Board (ECB). Today’s column is intended to
inspire action.
A few months ago, a residential building on the Upper East Side
was issued an NOV by the DEl’. The NOV accused the residen
tial building of having a 6-inch water line without a meter. As
it happened, the residential building had only a 4-inch line that
was properly metered and the payments on the meter invoices
3 were current. The 6-inch line was a bit of a mystery. It did exist,
but it appeared to be serving the separate space belonging to the
commercial unit owner.
The residential building represented by a board member, the su
perintendent, and the managing agent and equipped with the
proof of the paid water bill for the 4-inch line and the applicab]e
sections of the offering plan went to ECB to defend the building
from the NOV. The testimony at ECB showed that the mysteri
ous 6-inch line was located in an area 0 f the building controlled
by the commercial unit. As a result, ECB dismissed the charges
against the residential building.
A few weeks after the ECB decision, DEB returned to the residen
tial unit and issued an NOV with charges respecting the mysteri
ous 6-inch water line -similar to those previously dismissed. The
residential building had three reactions. First, it threatened the
City with litigation for harassment. Second, it moved to dismiss
the charge at EBC on grounds of the prior result. Third, with the
assistance of the Real Estate Board of New York (REBNY), the
residential building also contacted DEP.
Thereafter, DEP disclosed that the commercial unit owner had
taken out a permit more than a decade ago to meter the 6-inch
line. This disclosure was accompanied by yet another inspection.
This inspection showed that there were in fact three water lines
46 MRIR
at this particular building. The first line is the 4-inch line serv
ing the residential building. The second line provides water for
firefighters. The third line was supposed to serve the commercial
unit. Apparently, the decade old permit related to the fire service
water tine. The status of the water line servicing the commercial
unit is open to debate at this point. DEP is keeping its own coun
cil on this issue. Given the facts in this case, the residential unit
in this story is likely to see the most recent NOV dismissed.
Cooperative and condominium board members should take three
lessons from this tale. First, whenever an NOV is issued to a resi
dential building for acts of the commercial unit owner or tenant,
the residential board should contest the NOV on grounds of it
being issued to the wrong party. You will need yout building’s
governing documents and your superintendent to establish that
the activity charged in the NOV is beyond the control of the
residential building.
Second, either through REBNY or by your expediter, have the
files of the building at DEP and DOB inspected. You may also
want to contact your Fire Service firm for assistance if the Fire
Code is implicated.
Third, inspect the ECB file in advance of hearing date. Be cer
tain that you understand the technical aspects of the charges and
the evidence against your building. If you do not understand the
technical aspects of the charge, use the ECB rules to subpoena to
obtain the entire file for your building from the issuing agency.
This residential building’s story also suggests one reform to the
ECB process. The entire ECB file and docket should go online.
That would allow a residential bui]ding owner to see the file sup
porting all charges.
This story also suggests two reforms to City agency opetations.
First, the issuing agencies, such as DOB, DOT, DEP, and DOS
should stop issuing NOV’s to residential buildings for the offenses
committed by commercial tenants. Commercial tenants should be
held accountable for their misdeeds, not the residential buildings
unfottunate enough to host them. Second, DOT, DEP, and DOS
should join DOB in placing the full file for permits and activity for
a building online. The Buildings Information System (BIS) pro
vides a real service to residential buildings and that service should
be expanded to DOS, DOT, and DEP. •
Carol Sigtnond
Dunningron, Bartholow &MillerLLP
477 Madison Avenue
New York, NY 10022
Tel: 212-682-8811
csigrnond@dunnin,çon. corn