Landlord Didn't Maintain Walls Safely and Didn't Prove It Couldn't Stop Harmful Work Next Door

DOB issued a violation notice to landlord for failing to maintain building walls or appurtenances. DOB stated there was a dangerous condition by virtue of wide shifting cracks and spalling bricks. Landlord argued that it was impossible to maintain the building's walls or appurtenances until construction in the neighboring building was completed. Landlord's engineer submitted a letter stating that this construction caused "severe damages including several severe masonry and facade cracks" to landlord's building, and that repairs couldn't be made until proper footing stabilization and shoring is completed and all the shifting/movement had stopped. Landlord also showed two prior OATH hearing decisions that dismissed the same charge against landlord due to next door construction activities that were beyond landlord's control. DOB argued that the only activity of record next door was demolition that was completed in 2018. The ALJ ruled for DOB and fined landlord $2,500.

Landlord appealed and lost. To prove impossibility, landlord must show that it was both physically and legally barred from making necessary repairs, and that it made every possible effort to maintain the premises. Landlord failed to show that it was impossible to obtain the neighbor's cooperation in taking steps set forth in the engineer's letter to allow for repair to the facade. Nor did landlord show it had sought any court intervention for the problem. So landlord didn't show she did all she could to maintain the building walls or appurtenances as required by the Admin. Code on the date of the violation. And the ALJ wasn't bound by prior OATH decisions based on the facts of this case. 

DOB v. Jachimovicz: ECB App. No. 2100947 (9/23/21) [3-pg. document]