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Advice or recommendation for an attorney familiar with...

Postby Gaia » Tue Apr 05, 2011 4:11 pm

Hello, All.

I'm seeking a recommendation for an attorney and advice from those who've had experience with this kind of situation:

In June 2009 a new ground floor tenant, a restaurant, erected their exhaust duct up the air and light shaft bordering two rooms in our (and others) apartment. Up to this point I've been in dialogue with the my LL, the restaurant owner and architect, DEP, DOB, the Community Board, City Council, Mayor's Office, a tenants rights organization – through phone conversations, meetings, emails and letters…

This kind of installation or alteration affecting light and air is not allowed according to NYC's Construction Codes and the Multiple Dwelling Law. See language below.

THE NEW YORK CITY MECHANICAL CODE – Chapter 6 – Section MC 607 – Ducts and Air Transfer Openings
607.5.5.2 Limitations. Shafts that constitute air ducts or that enclose air ducts used for the movement of environmental air shall not enclose:
1. Exhaust ducts used for the removal of smoke and grease-laden vapors from cooking equipment;

NEW YORK STATE MULTIPLE DWELLING LAW ARTICLE 7 – TENEMENTS – Section 213 – Lighting and Ventilation of Rooms
§ 213. Lighting and ventilation of rooms.
1. No tenement, its lot or any room, public hall or stairs therein shall be so altered as to have its light or ventilation diminished in any way not approved by the department.

Unfortunately, after a year and a half of trying to find a remedy, the DOB has granted the LL a permit to seal the shaft windows and convert the bedrooms to “closets. The windows have indeed been sealed from inside the shaft. But the tenants in three of the four apartments on the shaft have denied access to construction workers, who would like to finish the job by removing the window frames inside the apartments to create a proper wall.

With all that I know about this case—from my personal notes, speaking with DOB personnel in several departments, and from obtaining documents through the Freedom Of Information Law, it’s clear that fraudulent information was provided to the DOB in order to get approval for the permit to seal the shaft windows. The restaurant’s architect claims the shaft is 17 square feet, not 20 sq. ft. as legally required by MDL 213(5), and therefore doesn’t qualify as a shaft used for “legal light and ventilation.” I do know for certain, as is shown by DOB’s own records, and my tape measure, that our air and light shaft is over 22 sq. ft.

I was informed by the person at DOB who’s title is “Intergovernmental and Community Affairs,” that our LL worked closely with her commercial tenant (restaurant) in order to achieve this outcome.

There are so many other points I could make in connection with all that’s wrong here but this posting is long already. I thought it necessary to give enough background to avoid receiving the kind of obvious advice one might give to some one new to navigating the City’s tangled web of codes and regulations…I’ve been there and back several times.

Thanks for your ideas or recommendations.
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Postby TenantNet » Tue Apr 05, 2011 5:03 pm

First, is the apartment rent stabilized? Reduction of light and air could be a reduction in service.

Second, DOB (often like DHCR) is an out-of-control agency, especially since Bloomberg and Quinn. This does not surprise me.

While we have a number of tenant attorneys who advertise here, in all honesty most tenant attorneys are light on building and zoning laws. There are some out there who know DOB/zoning, but few and far between. I'd be careful to get someone who knows their stuff.

Have you and other affected tenants consulted with an engineer or architect? It seems to me that is the first step. You need someone who knows construction codes, and which version of the Building Code is applicable.

Community boards? Forget them.

I know that generally restaurants must install exhaust ducts run up the rear of buildings so they are three feet above the roof line (and higher in some instances. I've never seen one in an air shaft.

Legally you probably need to appeal within DOB, then to the Board of Standards and Appeals (which can approve waivers of DOB/zoning regs) and then an Article 78 in Supreme Court. Where are you in that process?

Do you have a tenant association for your building?
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Re: Advice or recommendation for an attorney familiar with..

Postby Sky » Tue Apr 05, 2011 5:40 pm

Gaia wrote:Unfortunately, after a year and a half of trying to find a remedy, the DOB has granted the LL a permit to seal the shaft windows and convert the bedrooms to “closets. The windows have indeed been sealed from inside the shaft. But the tenants in three of the four apartments on the shaft have denied access to construction workers, who would like to finish the job by removing the window frames inside the apartments to create a proper wall.



I'm a little unclear regarding the situation of the tenants in the OP. Are you stating that the LL has already sealed up, and intends to completely eliminate the windows from several tenants' bedrooms by creating a solid wall in place of the windows, effectively converting the bedrooms into closets? Do the bedrooms in question have another window other than the window(s) that have been sealed and slated for removal? Of course, we also need to know if these are rent stabilized units.


To the best of my knowledge, according to the NYC housing codes, bedrooms must have a window. If the owner is depriving them of a window, and therefor depriving them of the legal usage of a bedroom for which they have contracted via their lease, it seems to me that an ouster has occurred. This is a 'partial actual eviction' insofar as they have been evicted from a bedroom. One defense for a partial actual eviction is that no rent is owed. If it is indeed a partial actual eviction, and the tenants continue to pay rent, then I do not believe they will have recourse to the partial actual eviction defense: in which case they would likely need to pursue a damages claim (note the difference of the latter vs. a 'defense'). Note that a partial actual eviction defense allows for the tenants to remain in occupancy of the remainder of the premises. One hypothetical way this could play out is the tenants cease using the room with the sealed off window(s) and withhold rent. When they are sued for non-payment they assert their 'partial actual eviction' defense and do not have to pay any rent whatsoever until the LL restores their bedroom to legally habitable condition; if the LL never restores the bedroom the tenant may have a defense for never paying rent again.

I'm not an attorney and this area of law can get complex. Nonetheless, read through the referenced material below and click on the links to follow up related material. Note that merely painting over a window can be construed as an partial actual eviction as stated within the referenced material.




http://scholar.google.com/scholar_case? ... 6758758#kq

Fein, J., dissenting in part.

I disagree with the majority's conclusion that the landlord's painting of the glass lobby doors leading from the rear of plaintiff's store to the lobby of defendant's building did not constitute an actual partial eviction. In my view, the majority too narrowly limits the applicable principle, as set forth in Barash v Pennsylvania Term. Real Estate Corp. (26 N.Y.2d 77, 82-83): "An actual eviction occurs only when the landlord wrongfully ousts the tenant from physical possession of the leased premises. There must be a physical expulsion or exclusion (Fifth Ave. Bldg. Co. v. Kernochan, 221 N.Y. 370; 2 McAdam, Landlord and Tenant [5th ed.], § 329, p. 1391; 1 N. Y. Law of Landlord and Tenant [Edward Thompson Co.], § 250). And where the tenant is ousted from a portion of the demised premises, the eviction is actual, even if only partial (Fifth Ave. Bldg. Co. v. Kernochan, supra; 524 West End Ave. v. Rawak, 125 Misc. 862)." Here the painting over of the windows in the tenant's lobby access doors constituted an ouster "from a portion of the demised premises" and hence an actual partial eviction, as the cases analyzed in the Barash opinion demonstrate. In Schulte Realty Co. v Pulvino (179 NYS 371), the tenant was held to have suffered a partial actual eviction where the landlord permitted another tenant to cover a large portion of an airshaft on which tenant's windows opened. Similarly, in a case very close to ours, there was a partial eviction where landlord sealed up a window on the tenant's premises (Adolphi v Inglima, 130 NYS 130; see Randall-Smith, Inc. v 43rd St. Estates Corp., 17 N.Y.2d 99). Once the partial eviction is established the entire rent is suspended for the duration of the eviction. The remedy is not, as the majority indicates, an action for compensatory damages by the tenant. Barash (supra) relied on by the majority, relegated tenant to an action for damages because the denial of a 24-hour ventilation and air-conditioning service was deemed not to be a partial or constructive eviction. Here, there plainly was an actual partial eviction. The extent of the eviction is immaterial. If the eviction is the act of the landlord "it suspends the 829*829 entire rent because the landlord is not permitted to apportion his own wrong." (Fifth Ave. Bldg. Co. v Kernochan, 221 N.Y. 370, 373; Fifth Ave. Estates v Scull, 42 Misc 2d 1052.) Trial Term properly held that the deliberate painting over of the clear glass lobby doors constituted a partial eviction justifying the nonpayment of the rent for the duration of such eviction. Accordingly I would affirm so much of the order appealed from as granted plaintiff summary judgment with respect to the clear glass doors and directed an assessment of damages with respect thereto, and otherwise concur in the majority's disposition of the order appealed from.



...and....


http://scholar.google.com/scholar_case? ... 3289526#kq

Tenant's reliance on Schulte Realty Co. v. Pulvino (179 N. Y. S. 371 [App. Term, per LEHMAN, J.]), which held that a tenant had suffered a partial actual eviction, is misplaced. The landlord, in that case, interfered with tenant's "easement" of light and air by allowing another to cover a large portion of an air-shaft upon which tenant's windows opened. The court, relying on Adolphi v. Inglima (130 N. Y. S. 130 [App. Term]), held that the lease included a right to light and air from the shaftway, and that there was, therefore, a partial eviction. It was observed that there could be no constructive eviction because the premises had not been rendered untenantable. In the Adolphi case a landlord had sealed up a window on the tenant's premises, and it was said to justify a finding of a partial eviction. On the other hand, in Solomon v. Fantozzi (43 Misc. 61 [App. Term]) the court held that blocking the ventilation of a water closet did not constitute a partial constructive eviction, let alone a partial actual eviction. The distinguishing feature of these cases, if indeed they be not anomalies, is that they deal with the destruction of an easement or appurtenance of light and air granted by the landlord (1 Rasch, op. cit., supra, § 895). Here there is no claim to an appurtenant right to air external to the demised premises but rather the failure to provide an essential service within the demised premises, which failure traditionally constitutes a constructive eviction (Tallman v. Murphy, supra).

It would seem moreover, apart from or despite the cases last discussed, that interference with easements or appurtenances of light and air insofar as they diminish the tenant's beneficial 86*86 enjoyment of the demised premises, constitutes a constructive and not an actual eviction. Thus in Two Rector St. Corp. v. Bein (226 App. Div. 73, supra) the substantial "diminution of light, air and view" constituted at most a constructive eviction requiring a surrender by the tenant (id., at pp. 75-76). (See, generally, 52 C. J. S., Landlord & Tenant, § 458, p. 312.)


PS: PM me for info on an attorney who may be able to handle this.
Last edited by Sky on Tue Apr 05, 2011 5:58 pm, edited 1 time in total.
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Postby TenantNet » Tue Apr 05, 2011 5:56 pm

Sky, practically, what can these tenants do to stop this?
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Postby Sky » Tue Apr 05, 2011 6:21 pm

They can do what they are doing, refusing access. However they may face a holdover case based on that refusal.

They can withhold rent.

I would immediately call 311 and place a complaint to the NYC Department of Health, as I believe this falls under their jurisdiction particularly the issue of venting from the restaurant into a residential area. Complain of 'poor air quality due to inadequate and illegal ventilation system'.

The OP hasn't stated they they complained to HPD. Call 311 and complain of an illegal sealing off of a bedroom window, try and get HPD to issue a violation.

Of course if they are rent stabilized or rent controlled, they could file an appropriate complaint with DHCR.

I agree that a first step should be to hire an architect. They need to be certain of the NYC building code and DOB procedures.

There is the additional layer of complexity where the various NYC agencies and laws overlap. For the sake of argument let's set aside the laws regarding shaft-ways and ventilation for a moment: the DOB may be conceiving of the bedrooms as closets, and not bedrooms. Perhaps the tenant or their architect should get a copy of the building's original floor plans from DOB and see what the rooms are designated as on the documents.
If there's monkey business at DOB or with the LL's architect's plans, the tenant can call a complaint to DOB via 311, to DOB's BSIU (Buildings Special Investigation Unit), or conversely call 311 to make a complaint to DOI (NYC Dept. of Investigations). Perhaps they can request an audit of the plans and an inspection.

[I'm still disregarding the air-shaft for sake of argument, even though it may be the front and center issue]. DOB could be correct in issuing the permit insofar as the LL may have a theoretical right to close off a window and convert a bedroom to a closet. However, the DOB may not be taking into consideration the tenant's bedroom rights, and maybe that is not DOB's jurisdiction, but is the LL's responsibility.

Of course, it goes without saying that the OP should be taking a multitude of pictures and documenting everything. I'd also record conversations with various parties. If they haven't done so already, go to DOB and pull the file and get certified copies of vital docs/plans in the job folder or from the microfilm (docs in hand would benefit the architect, attorney, and maybe even city inspectors). I'd also suggest that you scan (or photograph) the architectural plans and docs and have them digitized into manageable .pdf files on your computer so you can forward them easily to various parties who may express an interest or willingness to help.

I would do all the above, and I'd place the complaints to NYC agencies immediately and repeat the complaints daily until I got satisfactory results: the phone calls are Free. You want as many eyes on this as possible and slowly you want to work up the chain of command at the various NYC agencies until they can no longer ignore you. Get all the involved tenants to do this and do it repeatedly.
I would pool together with all the affected tenants and hire an architect to inspect the premises as well as review the construction and DOB docs.

Depending on the results of the complaints and the verdict of the architect, I'd then consider bringing in the heavy artillery by pooling together to hire an attorney. An attorney could file a Supreme Court lawsuit with an attached affidavit by your architect and request, a.) a temporary restraining order preventing any more work from proceeding, b.) an injunction to restore the windows and thus the bedrooms to habitable condition, c.) an injunction to remove the illegal ventilation system, d.) monetary damages, and of course e.) a claim for legal fees. Just filing such an action might put the brakes on the owner.
Last edited by Sky on Tue Apr 05, 2011 11:46 pm, edited 2 times in total.
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Re: Advice or recommendation for an attorney familiar with..

Postby Emeraldstar » Tue Apr 05, 2011 11:32 pm

Perhaps contacting a professional news media like 60 Minutes may open the door to restore the windows? After the crane incident the DOB had been on the hot seat for fraud so this seems to put them under question. They are ignoring their own records so one has to wonder who benefitted and for how much?
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Postby Sky » Tue Apr 05, 2011 11:49 pm

The OP should forward all that info in support of a complaint to the NYC DOI:

http://www.nyc.gov/html/doi/html/report/complaint.shtml


No way 60 minutes is going to deal with this. It's small potatoes.
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Postby Gaia » Wed Apr 06, 2011 8:44 am

TenantNet wrote:First, is the apartment rent stabilized? Reduction of light and air could be a reduction in service.


Yes, we are in a rent stabilized apartment and have been here eighteen years. If the DHCR accepted this situation as a reduction in services, that determination would lead to a rent reduction of only a few percentage points–big deal. That doesn't come close to compensating us for the loss of living space, air and light.

TenantNet wrote:Have you and other affected tenants consulted with an engineer or architect? It seems to me that is the first step. You need someone who knows construction codes, and which version of the Building Code is applicable.


Yes, I was given a recommendation by an attorney [who seemed rather enthusiastic about this case and then...didn't seem to care]. I spoke with the firm and they sent me a proposal to do a "Limited Air Shaft Evaluation," which includes measurements of the original shaft and the altered shaft, generate a "dimensioned drawing" and "review applicable NYC Building Code and NYS Multiple Dwelling Law regulations pertaining to natural light and air requirements." BUT the $1,500 initial payment put us off, as this building is not full of people with great means.

TenantNet wrote:I know that generally restaurants must install exhaust ducts run up the rear of buildings so they are three feet above the roof line (and higher in some instances. I've never seen one in an air shaft.


Yes, I am aware that most eating establishments erect their exhaust systems up the rear of buildings. But I've also see them on the front and sides of buildings [on the street side]. And a building inspector said there is no law against this. This is a corner property and the restaurant space has no access to the back of the building. That's why my LL advised them to put the ductwork up the shaft.

TenantNet wrote:Legally you probably need to appeal within DOB, then to the Board of Standards and Appeals (which can approve waivers of DOB/zoning regs) and then an Article 78 in Supreme Court. Where are you in that process?


I'm not certain what appealing within the DOB means. I have spent a great deal of time on the phone with various [DOB] people [and others] who sounded sympathetic and who've given me advice–all of which I've taken action on. I've written detailed accounts of the whole story from beginning to end, which include dates, times, who, where, what.... to the Buildings Commissioner and the Assistant Commissioner to Technical Affairs and Code Development.

TenantNet wrote:Do you have a tenant association for your building?


We have a loosely organized group of tenants–we don't have a president. But when I call for a tenants meeting it is very well attended, especially by those in rent regulated apartments. Others in destabilized units and the more transient [younger] set will not get too involved.
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Postby Gaia » Wed Apr 06, 2011 10:57 am

Sky wrote:They can withhold rent.


We'd certainly do this IF there were no legal ramifications.

Sky wrote:I would immediately call 311 and place a complaint to the NYC Department of Health, as I believe this falls under their jurisdiction particularly the issue of venting from the restaurant into a residential area. Complain of 'poor air quality due to inadequate and illegal ventilation system'.


The restaurant is not venting into the shaft but has erected their chimney duct up the shaft to the roof. The ductwork, as stated in the Mechanical Code and RS 13 is not allowed in shafts that provide air and light to apartments.

Sky wrote:The OP hasn't stated they they complained to HPD. Call 311 and complain of an illegal sealing off of a bedroom window, try and get HPD to issue a violation.


I will try this. Although, every time I call 311 they transfer me to Buildings.

Sky wrote:Of course if they are rent stabilized or rent controlled, they could file an appropriate complaint with DHCR.


I would like to file with the DHCR but only to put my LL on notice. The DHCR's acceptance that this situation constitutes diminished services would result in a tiny rent decrease but would likely not give us our bedrooms back.

Sky wrote: ...the DOB may be conceiving of the bedrooms as closets, and not bedrooms. Perhaps the tenant or their architect should get a copy of the building's original floor plans from DOB and see what the rooms are designated as on the documents.


Actually, a DOB letter from the Assistant Commissioner for Technical Affairs and Code Development to the Deputy Borough Commissioner states:
The department records reviewed so far do not show an earlier application or approval to convert the bedrooms to closets – so, no matter how they have actually been being used from June 30, 1970 until 2011, the department today still considers them to be bedrooms.

Sky wrote:If there's monkey business at DOB or with the LL's architect's plans, the tenant can call a complaint to DOB via 311, to DOB's BSIU (Buildings Special Investigation Unit), or conversely call 311 to make a complaint to DOI (NYC Dept. of Investigations). Perhaps they can request an audit of the plans and an inspection.


I will try this.

Sky wrote:DOB could be correct in issuing the permit insofar as the LL may have a theoretical right to close off a window and convert a bedroom to a closet. However, the DOB may not be taking into consideration the tenant's bedroom rights, and maybe that is not DOB's jurisdiction, but is the LL's responsibility.


The last paragraph of above-mentioned letter states:
The decision of which method the owner elects to bring his building into compliance with the Multiple Dwelling Law may have consequences for the owner with regard to any contractual and/or statutory obligations he may have with regard to commercial or residential leaseholders and/or occupants of the building. However, the decision of which method the owner elects is not under the purview of the Department of Buildings. DOB’s obligation is to ensure that the method selected complies fully with the applicable provisions of the Building Code and Multiple Dwelling Law. DOB’s approval of one method or another as complying with the Building Code and Multiple Dwelling Law, ought not to have an preclusive effect on the rights or remedies to which such commercial or residential leaseholders’ and/or occupants’ may be entitled.

Sky wrote:Of course, it goes without saying that the OP should be taking a multitude of pictures and documenting everything. I'd also record conversations with various parties. If they haven't done so already, go to DOB and pull the file and get certified copies of vital docs/plans in the job folder or from the microfilm (docs in hand would benefit the architect, attorney, and maybe even city inspectors). I'd also suggest that you scan (or photograph) the architectural plans and docs and have them digitized into manageable .pdf files on your computer so you can forward them easily to various parties who may express an interest or willingness to help.


I’ve done all of this: I have taken notes of each phone call, email, letter, meeting, inspection…. And I have an online photo gallery of the shaft and the associated construction dating back to the fall of 2009. I have the floor plans from the DOB’s I Card and two sets of plans from each of the two engineering firms involved with the construction. I’ve downloaded everything from the DOB’s “virtual job folder.” I’ve scanned some of the FOIL docs I’ve received from DOB and ECB. In other words, I am sitting on a mountain of information.

Sky wrote:I would pool together with all the affected tenants and hire an architect to inspect the premises as well as review the construction and DOB docs.


I am searching for an architect to do just that.

Thank you for your time in responding.
Last edited by Gaia on Wed Apr 06, 2011 12:26 pm, edited 3 times in total.
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Postby Sky » Wed Apr 06, 2011 11:47 am

Gaia wrote:
We'd certainly do this IF there were no legal ramifications.


Wake up and smell the coffee. You are delusional. There will be legal ramifications no matter which way you act, or fail to act. Your rights benefit you only insofar as you exercise, defend, and enforce them.

Think: the restaurant is making money and very likely will not voluntarily wish to interfere with their cash flow by temporarily shutting down and/or spending additional funds converting their equipment ... uness they are compelled to.

Think: the owner is likely receiving more income from the restaurant than from you, a rent stabilized tenant. The owner will likely not wish to put money into reversing work already performed in addition to the expense of performing new work merely to please you, or to please you and a small group of tenants who are 'put off' to spending any money to fight "as this building is not full of people with great means." If the LL took you as a serious threat, he would have already respected your rights and complied with your wishes and the law.

Again: hire an architect ASAP to get advice from a certified professional with no vested interest in the owner's or the DOB's agenda.

I believe you are going to have to fight for your rights. You must do what you are comfortable with. However, if I were in your shoes I would consult with an attorney on the DOB issues as well as your tenant defenses and legal claims, and I would do as my attorney advised, including withholding rent. I'd also inquire about bringing a temporary restraining order as mentioned up thread, because once the owner closes in your windows, as he intends, it's a fait accompli and will entail even more work for you (and more legal fees) to reverse that.

I believe this will end up in court if you intend to protect and enforce your rights because even if the owner is issued violations he has a financial incentive to maintain things as they are. Whatever else you do (calls, complaints, inspections, etc) will be useful as evidence. You've already spent years on this with zero results. Start putting your time, energy, and money into a good attorney instead. You are penny wise and pound foolish and you must break out of your misguided commitment to avoid hiring an attorney. Consult with a tenant attorney, bring copies of your original leases, and see what the attorney's assessment is on your winning the case and also recouping legal fees. The more that the owner does to convert your apartments, the more incentive he will have to refuse to reverse it in order to preserve his investment, and thus it will become ever more expensive for you to fight. This is destined for court: do not be in denial. On your own, you have no muscle to influence the status quo, as you have already exhibited. There already are, and will be, legal ramifications ... your delaying action is one such legal ramification and your failure to take legal action and intervene to nip this in the bud has allowed events to proceed to the current FUBAR situation. The quicker you assume responsibility and get legal representation, the cheaper it will be in the long run. Wake up.

My two cents.
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Postby Sky » Thu Apr 07, 2011 12:23 am

One suggestion regarding attorneys:

It is worth inquiring if any of the tenants who are party to this conflict are receiving public assistance of some sort, are in a low income bracket, are a senior citizen with diminished means, or any other circumstances which might qualify them for free legal representation by the Legal Aid Society. If one of the tenants meets their economic intake guidelines and Legal Aid agrees to represent the tenant, it is possible their representation would extend to all tenants involved., regardless of income.

Legal Aid and other similar free legal service agencies are experiencing very rough times with funding these days, so unless one of you clearly qualifies, I wouldn't get your hopes up and spend your time on a wild goose chase for free legal service. It could easily become another black hole and sap your energy and time.
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Postby Emeraldstar » Thu Apr 07, 2011 12:34 am

Hi All
Another thought. If all ends up to be "closets" I equate that with loss of rooms. I'm wondering if a SB LL like this one at some point down the road is putting the tenants in a position of overcrowding under the square feet reg?
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Postby TenantNet » Thu Apr 07, 2011 4:39 am

I spoke with an architect yesterday and described this thread. Without knowing all the facts, he said that having a flue going up an air shaft is permissible, but that closing off windows is not. He thought that DOB would not order such windows to be sealed over. Of course neither he nor I have seen all the facts, only relying on what has been said here.

Any chance the OP could scan and email us the DOB order? Or the address of the building. (do not put the address on this forum, but email it or send by private mail).
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Postby Gaia » Sat Apr 09, 2011 12:35 am

THANK you so much for your time and input.

TenantNet wrote:I spoke with an architect yesterday and described this thread. Without knowing all the facts, he said that having a flue going up an air shaft is permissible, but that closing off windows is not.


The "flue" in the air shaft is an actual chimney; ductwork originating from the restaurant's hoods, going up the shaft to the rooftop to a motor, which is attached to about 15 to 20 ft. of horizontal ductwork less than two feet above the roof's surface. It's a strange configuration and the workmanship is shoddy at best...hard to believe any self-respecting engineer would want his name on this.

This exhaust system conveys what the Building Code terms, "smoke and grease-laden vapors from cooking equipment." This type of installation is prohibited in an air and light shaft that provides natural ventilation, as stated in the City and State Codes below:

THE NEW YORK CITY MECHANICAL CODE
Chapter 6
Section MC 607 – Ducts and Air Transfer Openings 
607.5.5.2 Limitations.
Shafts that constitute air ducts or that enclose air ducts used for the movement of environmental air shall not enclose: 
1. Exhaust ducts used for the removal of smoke and grease-laden vapors from cooking equipment
...

NEW YORK STATE MULTIPLE DWELLING LAW
ARTICLE 7 – TENEMENTS
Section 213 – Lighting and Ventilation of Rooms 
§ 213. Lighting and ventilation of rooms.
 
1. No tenement, its lot or any room, public hall or stairs therein shall be so altered as to have its light or ventilation diminished in any way not approved by the department.

Now, the Department did indeed approve this construction in a round-about way... The restaurant did not have a permit to build the chimney in the shaft, nor was this chimney contained in the original drawings. But it seems possible that a favor was done for some one here. A year and a half of steady 311 complaints, violations, hearings [at the ECB], even a Commissioners Order To Remove, have not led to corrective action.

The restaurant's engineer claims the shaft area is only 17 sq ft and since it is covered with a skylight it doesn't provide air and light. And on a CCD1 form to the DOB, this engineer stated, 
Respectfully request clarification that existing covered opening is not a shaft, and not used for legal light and ventilation.

Meanwhile, in the continuing dialogue throughout these documents that "opening" is referred to as a "shaft." He went on, 
The I card and documents dated 10/03/1902 indicate the shaft (B Shaft) has been covered from 1902.

The MDL Section 212 states any court or shaft after December 15, 1961 can not be covered. The records indicate the shaft was covered before 1961, and grand-fathered as an existing non compliance.

MDL Sec. 212 refers to Yards and courts, not shafts. AND he cherry picked what part of this MDL section to include in making his point. What MDL 212 really says,
Any court constructed after December fifteenth, nineteen hundred sixty-one in a tenement to ventilate any room, public hall, water-closet compartment or bathroom shall be of the dimensions prescribed in section twenty-six, and such court shall under no circumstances be roofed or covered over at the top. ...

Our building was constructed at the beginning of last century and so was the shaft, which is not a court. And that thing about section twenty-six? That section applies to "dwellings erected, enlarged, converted or altered pursuant to plans filed on or after December fifteenth, nineteen hundred sixty-one for the purpose of regulating their height and bulk and regulating and determining the area of yards, courts and other open spaces of such dwellings."

The DOB takes the engineer at his word without noticing that I Card already shows the shaft's true dimensions. And also ignoring what the MDL actually says, DOB responds on the ZRD1/CCD1 Response Form:
The existing shaft is shown by the applicant to be only 17 square feet and covered by a skylight, and therefore does not provide ventilation and does not qualify as a required light and air shaft as per MDL 213.5.

MULTIPLE DWELLING LAW
ARTICLE 7 -- Tenements

can be found here: http://www.tenant.net/Other_Laws/MDL/mdl07.html

I happen to know that our shaft is over 22 square feet in area, as Department records (I Card) show, and I have measured it several times myself. 

So the above-mentioned charade allowed my LL to gain a permit to seal all windows opening onto the shaft, convert the bedrooms to closets, remove the venting skylight at the roof level and seal the top of the shaft (the shaft hasn't yet been sealed). The LL hired her own engineering firm to draw new plans for this construction.  And these drawings don't accurately represent the apartment and rooftop layouts or their dimensions. Ironically, the dimensions for the air and light shaft in those plans total 34 sq ft.

TenantNet wrote:Any chance the OP could scan and email us the DOB order? Or the address of the building. (do not put the address on this forum, but email it or send by private mail).


No problem.
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Postby TenantNet » Sat Apr 09, 2011 2:30 am

You had sent us - via private mail - the location of the building. I looked it up in the DOB Info System. There are two Stop Work Orders on the property.

One Stop Work Order states:

Re: CALLER STATES THE RESTAURANT HAS CREATED AN ILLEGAL CHIMNEY WITHIN THE AIR SHAFT.THIS CONDITION IS A FIRE HAZARD, VIOLATIONS ISSUED PREVIOUSLY BUT CONDITION HAS NOT BEEN CORRECTED

Last Inspection: 02/22/2010 - - BY BADGE # ____
Disposition: 02/25/2010 - A3 - FULL STOP WORK ORDER SERVED
Comments: REVOKED PERMIT #_________ NOT IN COMPLIANCE WITH MULTI DWELLING LAW 213 - FAIL TO MAINTAIN EXHAUST AT ROOF - NOT SECURE


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