Our lives have been significantly disrupted by the COVID-19 pandemic. We residents of the New York City metropolitan area are under “stay at home, work from home” orders. We are using masks or bandanas outside our homes, we avoid being part of a group, we shop in nearly empty stores by choice, we talk to clients and advisors by phone, we hold meetings and socialize virtually. This is likely to be our reality until August, and possibly these restrictions will resume as the weather cools until we have an effective vaccine for the novel coronavirus.
On or about March 7, 2020, New York Governor Andrew Cuomo issued a disaster declaration, Executive Order 202, stating that COVID-19 was a threat to the health and safety of New York and its residents and visitors. At that time, the governor activated the New York State Emergency Management Plan.
Since then, the Governor issued 13 Executive Orders in connection with the COVID-19 public health emergency. Among these are Executive Order 202.4 (dated March 16 and extended through the school year) closing all schools in New York and Executive Order 202.6 (dated March 18 and extended through May 15) ordering non-essential workers to remain at home and closing most retail businesses, with the exception of essential businesses, such as drug and grocery stores.
Initially, under Executive Order 202.6, infrastructure projects, medical projects and emergency repairs for electric, boiler and water and sewer appeared to be exempt. However, the Empire State Development Corporation (ESDC) essentially allowed all projects to continue, including private condominium conversions and new buildings. However, in late March, Cuomo made it clear that, except for emergencies, all private construction had to stop. With state and locally public works, the ESDC is supposed to make a case by case determination. Federal projects are not subject to the orders.
On March 30, the New York City Department of Buildings (DOB) issued Building Bulletin 2020-004, stopping work on most construction projects in New York City. The work stoppage on New York City construction projects may continue through and including June 30. This cessation is not without risks to the neighbors. Under Building Bulletin 2020-004, all construction except state and federal projects, which are not subject to DOB regulation, must stop work with limited exceptions for emergencies.
Projects must be put in a safe condition before being shut down. This includes sloping excavations away from adjacent properties, stabilizing and shoring foundations and locking off or disassembling cranes. The DOB has ordered project owners to have site superintendents or safety officers inspect the sites, including interior projects, weekly. The DOB mandates written reports. Likewise, cranes in place must be inspected weekly, and the inspections must be documented.
Projects that address emergencies such as water leaks, electrical outages or restoring heat may proceed. Under Building Bulletin 2020-004, the contractor needs to submit an Essential Construction request. Depending on the emergency, the contractor may begin work immediately and file the request within 48 hours of the start of work. Other emergency work, such as façades and leaking roofs, needs to be filed. The contractor should submit an Essential Construction request before working. Any unsafe conditions should be reported immediately to the DOB. Likewise, projects that appear to be deteriorating should also be reported to the DOB.
This column presents a general discussion. This column is not intended to provide legal advice. Please consult your attorney for specific legal advice.