On Sunday, March 10, 2024, on page 6, “The New York Post” published an article about a newly constructed building on the Upper East Side where the construction defects included, among other items, an illegal combustible two-story staircase.
There is no reason for New Yorkers to be dealing with this level of defective work. More than 2,000 people are employed by the New York City Department of Buildings (DOB), approximately 25% of whom are inspectors, reports SeeThroughNY. Surely with this level of investment in public services, there should be some tangible benefit, such as city inspectors finding these types of defects and not issuing certificates of occupancy, temporary or otherwise, until the buildings comply with the building code.
Beyond DOB employees, who are the last line of defense, there is a construction oversight system mandated under the building code and the state law under which architects and engineers have state-imposed life-safety obligations in the design phase and special inspectors. By city law, they are supposed to inspect specific items of work to ensure compliance with design drawings. However, owners must retain and pay special inspectors and licensed design professionals to monitor construction. If the developer/owner of the project is not paying for these services, then the system does not function as intended.
New York City tried to improve enforcement of building code obligations on developers/ owners and contractors by mandating site safety inspectors and site superintendents. These private parties are charged with checking construction sites to ensure safe conditions for workers and to mandate daily checks of the work by licensed superintendents. But are they consistently employed as required by the building code?
This leads to an obvious question: how are these obligations — all of which are vested in private parties — enforced? In instances where compliance with state or city requirements by licensed personnel, such as registered design professionals, special inspectors, site safety officers and site superintendents, is deficient, there is the potential for adverse actions against their licenses. Adverse actions are taken in the form of fines, loss of self-certification privileges or license suspension. But are these actions taken frequently enough and are the penalties discouraging deficiencies?
And what of the developers/ owners who may not retain the staff anticipated by the building code? What can or should happen to developers/owners who do not retain the mandated special inspectors, site safety managers or site superintendents? Except for stop work orders, there is little that the Department of Buildings can do to owners or developers to obtain voluntary compliance with the law.
Consider the following: under certain circumstances, the building code requires an “engineer” for the developer to identify as a “structural stability engineer” for adjacent properties. If the owner does not provide funding for this purpose, the engineer of record has little option but to resign from the project. But all that will cause is that a less ethical engineer will instead pick up the project and there will still not be a structural stability engineer. If those properties are damaged, the adjacent property owner will sue for damages and some insurance company will deal with the claim, and years later when the lawsuit concluded, it will raise everyone’s premium. But what penalty does the developer/owner who did not provide funds for the structural stability engineer face? Possibly additional interest on a construction loan or a delay to his project. At some point, these violations by owners or developers should be addressed by vacating permits or even by prosecution.
If you are looking at new construction for purchase or lease, given the current situation with the weakness in the oversight system, you would be well advised to have a detailed inspection of the property made by registered design profession- als experienced in identifying construction defects. By way of example, there should be an emphasis on ensuring that windows and wall insulation comply with the offering plan and design documents to ensure compliance with Local Law 97 standards: HVAC systems should be balanced; the available power should be adequate for the drive to make New York “all-electric” and light switches and outlets should be code-compliant.
This column presents a general discussion. This column does not provide legal advice. Please consult your attorney for specific legal advice.
Carol A. Sigmond
Partner
Greenspoon Marder LLP
1345 Avenue of the Americas, Suite 2200
New York, NY 10105
carol.sigmond@gmlaw.com
(212)524-5074
