Fifth Ave. Building Charged Neighbor with Multiple NYC Code Violations

Was DOB Finding That Violations Existed Dispositive  in Parallel Nuisance Claim?

1143 Fifth, LLC owns the seven-story building located at 1143 Fifth Avenue, New York, and was in the process of adding an eighth floor so as to create a duplex penthouse apartment with a large terrace.

1148 Corporation owns the 13-story building directly to the north of 1143 at 1148 Fifth Avenue, New York and that building's southern façade has multiple windows overlooking 1143’s penthouse terrace-to-be.

The LLC sued the Corp., alleging five causes of action: (1) nuisance; (2) trespass; (3) negligence; (4) RPAPL § 871; and (5) New York City Code violations. The LLC alleged that the windows, air conditioning units, vents, and "scuppers" on the southern façade of the Corp.’s building violated New York Administrative Code § 28-301.1 (requiring every building owner to maintain its building in a safe and code-compliant manner), New York City Building Code Table § 705.8 ("maximum area of exterior wall openings based on fire separation distance and degree of opening protection"), § 705.8.2 ("Protected Openings"), § 715.5 ("Fire-Protection Rated Glazing"), and Table § 715.5 ("Fire Window Assembly Fire Protection Rating"), as well as New York City Mechanical Code requirements § 401.4 ("Intake Opening Location") and § 501.2.1 ("Location of Exhaust Outlets"). In sum, the LLC alleged that the Corp.’s actions created a fire hazard for the still-under-construction duplex and terrace and subjected the Corp. to unwanted water, exhaust, and noise.

The Corp. answered with general denials and 11 affirmative defenses.

The New York City Department of Buildings (DOB) issued summons #35441978R to the Corp. citing a Class 2 violation of New York City Administrative Code § 28-302.1 ("A building's exterior walls and appurtenances thereof shall be maintained in a safe condition."). Specifically noting a "[f]ailure to maintain building walls or appurtenances. At time of inspection, observed a[t] multiple locations on South Side lot-line, A/C units sleeve created opening, approx. 18×24 in brick wall." They helpfully offered a proposed remedy: "maintain exterior building wall."

A hearing was held in which the DOB found the Corp. was violating § 28-302.1 and fined $1,250. The Corp. paid the fine. The underlying violation was not closed.

The LLC sought partial summary judgment on its first, second, and third causes of action (nuisance, trespass, and negligence).

The LLC argued that the DOB violation collaterally estopped the Corp. from arguing that "the southern façade of 1148 Fifth Avenue [was] safe or the walls and appurtenances [were] being maintained in a reasonable manner" and so, taken with the affidavits of architect and engineer Sarah Murray and the LLC’s representative, Stephen D. Gallira, established the Corp.’s liability.

In reply, the Corp. argued that the LLC’s allegations went beyond the scope of the DOB violation and, in any event, a DOB violation was not dispositive of liability.

The elements of a private nuisance are (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person's property right to use and enjoy the land, (5) caused by another's conduct in acting or failure to act.

Nuisance imports a continuous invasion of rights—a pattern of continuity or recurrence of objectionable conduct.

Here, the Court found that there were still genuine issues of material fact between the parties as to whether or not "the air conditioners and vents on the southern façade of the 1148 Building project condensation, hot exhaust, and noise onto the penthouse terrace of the 1143 Building" substantially or unreasonably, let alone continuously enough to constitute a private nuisance. The LLC’s motion for partial summary judgment on its nuisance cause of action was denied.

There were also still genuine issues of material fact as to whether the Corp.’s "a/c units and related openings, ha[d] led to not just the emission of air vapor and exhaust, but actual water that [was] causing real damage to the [LLC’s] Building."

While the LLC provided an affidavit of its owner's representative asserting that "[c]ondensation from the [Corp.’s] building's a/c units ha[d] been witnessed and videotaped," no such evidence was provided to the Court. The Corp. provided its own affidavit, from Howard L. Zimmerman Architects and Engineers DPC Senior Project Manager Leslie Berman, asserting that "there [was] no visible staining or other visible evidence of condensation on the façade brick."

The LLC’s motion for partial summary judgment on its trespass claim was denied.

The elements of a negligence claim are (1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof.

As a rule, violation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability. By contrast, violation of a municipal ordinance constitutes only evidence of negligence.

Here, the LLC correctly noted that New York Administrative Code § 28-301.1 created a duty for every building owner to maintain its building in a safe and code-compliant manner, but that duty did not impose tort liability. While a violation of § 28.302.1 was certainly evidence of negligence, a municipal ordinance violation was not negligence per se.

The LLC’s motion for partial summary judgment on the negligence claim was denied.

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