New York's Cooperative and Condominium Community

Habitat Magazine Business of Management 2021




Lawsuit Says Stalled Access Agreement Led to Fatal Facade Failure

Times Square, Manhattan

Terra Cotta Lawsuit

Debris fell from the facade of 729 Seventh Avenue (center), killing a pedestrian (image via Google Maps).

Jan. 7, 2020

Most lawyers urge co-op and condo boards to be reasonable when negotiating access agreements with neighboring buildings. Don’t play hardball when a neighbor needs access to your building to make repairs to his building, the counsel goes, because one day you’ll likely need access to his building to make repairs to yours. 

A recent tragedy has highlighted that ignoring this advice can not only lead to lawsuits, it can also lead to death. Two weeks after a piece of decorative terra cotta fell from a Times Square office building and killed a pedestrian, the building's owner took a neighboring landlord to court for allegedly holding up facade and roof repairs mandated by the city, Crain’s reports.

The owner of 729 Seventh Avenue, an LLC controlled by Himmel & Meringoff Properties, said in a lawsuit that prolonged negotiations with the owner of two adjacent properties have prevented it from complying with a Department of Buildings order to repair its roof and facade by Jan. 21. 

The emergency order from the city came days after part of the building fell Dec. 17 and struck and killed Erica Tishman, an architect and philanthropist. A spokesman for the company blamed repair delays on the neighboring owner's refusal to grant access for repairs. 

Negotiations between the two building owners stretched on for months prior to the fatal incident, according to the lawsuit, which asserts that Himmel & Merringoff cannot access the full roof and facade without entering the neighboring property at 727 Seventh Avenue and the adjacent 152 West 49th Street—access which it says had been denied. 

In an affidavit, H&M attorney Alexander Ferrini described the talks with the neighboring owner as "protracted and difficult, because every time we seemed to reach agreement, [727 Ave.'s] counsel raised a new demand." 

Judge Adam Silvera of state Supreme Court in Manhattan signed an order that requires the landlord of the two buildings to allow H&M access for repairs. Work is currently under way.

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