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TEWART LLP
CCHIPINTI
Attorneys and Counselors at Law
One Exchange Plaza
55 Broadway, Suite 1501
New York, NY 10006
tel:(212) 239-5500
fax: (212) 239-7030
June 25, 2018
VIA NYSCEF
Hon. Kathryn E. Freed
Supreme Court, New York County
80 Centre Street, Room 280
New York, NY 10013
Re: 270 West End Tenants Corp. v. 266 Weave, LLC and Todd Wider,
Index No. 150228/2017
Dear Judge Freed:
("Defendants"
We are counsel to Defendants 266 WEAVE, LLC and Todd Wider ("Defendants") in the
above -referenced matter. We are writing in response to the June 22, 2018 letter submitted by
counsel for Plaintiff 270 West End Avenue regarding the legal status of the Sidewalk Shed
Defendants'
installed by Plaintiff in front of property at 266 West End Avenue. As discussed more
fully below, Plaintiff's admission that the Sidewalk Shed is not and never was in compliance with
the NYC Building Code demands that Plaintiff be ordered to immediately dismantle and
reconstruct the Sidewalk Shed in a manner compliant with the NYC Building Code, using
Defendants'
materials that will eliminate or reduce any potential damage to property. Moreover,
in light of Plaintiff's inexcusable negligence, inaction and misleading representations to the Court
and Defendants regarding the Sidewalk Shed and the related facade work at issue in this matter,
as Defendants have previously requested, the Court should impose an appropriate license fee or
other sanction on Plaintiff 270 West End.
During the recent Status Conference held in this matter on June 13, Defendants advised the
Court that both the architect and engineer hired by Plaintiff to submit and certify the plans and
filings to obtain the DOB permit required to construct the Sidewalk Shed both had their
professional licenses revoked or suspended. Specifically, the professional engineer who certified
the Sidewalk Shed plans had his license suspended for applications for non-
wrongfully certifying
code compliant projects submitted to DOB. Moreover, the architectural firm that prepared the
plans, H 2 H Consulting and Architecture, P.C., was no longer in business. 270 West End had
not brought any of these relevant issues to the attention of the Court or Defendants prior to
Defendants themselves raising these issues at the Status Conference. Thus, during the Status
New York New Jersey
Hon. Kathryn E. Freed
June 25, 2018
Page 2
Conference, Defendants requested that 270 West End be directed to immediately retain licensed
engineering and architectural professionals to prepare and submit to DOB the required drawings
and other necessary submissions certifying that the Sidewalk Shed as presently designed and
constructed is safe and in compliance with the NYC Building Code.
Immediately after the Status Conference, we undertook to determine what additional
information may be available regarding the DOB permit for the Sidewalk Shed, since 270 West
End has plainly failed to keep Defendants and the Court properly informed of the legal status of
the Sidewalk Shed. Accessing information readily available on the DOB website, we learned that
the permit for the Sidewalk Shed was in fact revoked by DOB on February 9, 2018. During the
subsequent teleconference held with Your Honor's law clerk, Jonathan Judd, on June 14, Plaintiffs
admitted that they were not aware that the required DOB permit for the Sidewalk Shed had in fact
been revoked more than four months ago and that no valid DOB Permit was currently in place. As
a result of Plaintiff's inexcusable negligence and inaction regarding the status of the Sidewalk
Shed, Plaintiffs were ordered to retain a licensed architect or engineer and determine whether the
Sidewalk Shed is safe and in compliance with the NYC Building Code and to report back to the
Court and Defendants no later than June 22.
In itsJune 22 letterto the Court, Plaintiff reluctantly admits that the Sidewalk Shed is not
and never has been in compliance with the Building Codel. In particular, Plaintiff 270 West End
admits that the Sidewalk Shed as designed and as built does not meet the 300 pounds per square
foot (psf) load requirements set forth in the Building Code. In fact, a number of the critical
structural elements of the Sidewalk Shed, including the header beams, bridge deck members and
Shed legs have load capacities as low as 50psf. While Plaintiff cavalierly claims that the Sidewalk
Shed is not currently in imminent danger of collapse, Plaintiff's new engineer cannot and does not
certify that the Sidewalk Shed as currently constructed is sufficient to serve itsprincipal purpose,
namely to protect pedestrians from injury caused by the unsafe conditions on Plaintiff's south
Incredibly, despite these admissions and omissions, Plaintiffs do not offer any specific
plan or timeline for how and when they intend to dismantle and replace the illegal Sidewalk Shed.
Based on the foregoing, Defendants renew their request that 270 West End be ordered to
immediately submit the appropriate applications, plans and other documents to DOB to obtain the
required permit for an appropriately designed and constructed Sidewalk Shed. Plaintiffs should
also be ordered to immediately submit to the Court and Defendants a detailed work plan and
schedule for replacing the Sidewalk Shed. Moreover, Plaintiffs should be required to use materials
Defendants'
in the new Sidewalk Shed that will eliminate or reduce potential damage to property.
As the Court is aware, in constructing the current Sidewalk Shed, 270 West End Avenue chose to
use the cheapest available materials. Rather than comport with best practices and use galvanized
steel beams, Plaintiff's contractors used heavily oxidized and corroding beams to construct the
Sidewalk Shed. Plaintiff's utilization of these rusty beams and supports has caused rust particles
and rusty water from rain and melting snow to fall on to and damage the porous limestone located
I Initsinitialsubmission to theCourt initiatingthisaction,270 West End Avenue thus falselymispresented tothe
Court thatthe proposed Sidewalk Shed complied with allBuilding Code requirements. (NYSCEF Doc Nos. 5 and
12)
Hon. Kathryn E. Freed
June 25, 2018
Page 3
directly underneath the Sidewalk Shed. Accordingly, since Plaintiff admits that itwill have to
reconstruct the Sidewalk Shed to bring itinto compliance with the Building Code, Plaintiff should
be ordered to design and construct a new Sidewalk Shed that incorporates galvanized beams and
Defendants'
other similar materials to eliminate or reduce potential damage to property.
During the June 14 teleconference with the Court, because Plaintiff had failed to maintain
the required permit for the Sidewalk Shed, and to determine whether 270 West End had complied
with itsobligations under the NYC Building Code, Plaintiff was also directed to provide certain
inspection reports and related documents to Defendants by June 22. Pursuant to NYC Building
Code sections 3307.6.5.7-10, 270 West End has been required to have a qualified professional
prepare an initial installation inspection report and periodic follow-up inspection reports every 6
months to verify that the Sidewalk Shed is in a safe condition and meets the requirements of the
Building Code. The Building Code further requires a daily inspection of the Sidewalk Shed and
maintenance of a written record of such inspections. While Plaintiff provided some, but not all,
required inspection logs on June 22, Plaintiff did not produce the initial inspection report or any
of the required periodic follow-up inspection reports. Plaintiff's failure to conduct these required
safety inspections is further evidence of its blatant disregard of its obligation to construct and
maintain a safe and code-compliant Sidewalk Shed.
Counsel for Plaintiff's June 22 letter also attaches certain insurance-related documents
purporting to evidence coverage for Defendants as additional insureds under 270 West End
Avenue's general liability policy. However, Plaintiff has not provided a complete copy of the
general liability insurance policy at issue. Without a complete copy of that general liability policy,
Defendants are unable to determine the scope of coverage afforded under that policy. As such,
Plaintiff should be further ordered to provide a complete copy of the general liability policy under
Defendants'
which are purportedly named as additional insureds.
It should also be noted that Defendants have unnecessarily incurred more than $8,000.00
in engineering and legal fees to evaluate a fundamentally flawed proposal by 270 West End
Avenue to build additional scaffolding on the Sidewalk Shed and Defendant's property to perform
repair work on south facade. Defendants would not have incurred any of these costs had 270 West
End been aware, as it should have been, that the Sidewalk Shed was not in compliance with the
Building Code and could never withstand the proposed additional loads. Moreover, based on its
current engineer's own report, the proposed additional structures could have caused the Sidewalk
Shed to collapse with potentially catastrophic consequences.
In sum, Defendants continue to be concerned with 270 West End's repeated and
inexcusable delays, negligence, inaction and dangerous and misleading representations to the
Court and Defendants regarding the Sidewalk Shed and the facade work at issue in this matter.
Likewise, for the past 16 months, the illegal and unsafe Sidewalk Shed constructed by Plaintiff
continues to deny Defendants the full use and enjoyment of their property. The best remedy
available to ensure that 270 West End fulfills itsunambiguous obligations to install and regularly
inspect and maintain a safe and code compliant Sidewalk Shed and complete the necessary work
Hon. Kathryn E. Freed
June 25, 2018
Page 4
to address the unsafe conditions on its facade as quickly as possible, is to impose an appropriate
license fee or other sanction on 270 West End.
Counsel for Defendants are available to address these time sensitive safety issues further
by telephone conference if the Court so requires.
Respectfully submitted,
J
Frank S. Occhipinti
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TEWART LLP CCHIPINTI Attorneys and Counselors at Law One Exchange Plaza 55 Broadway, Suite 1501 New York, NY 10006 tel:(212) 239-5500 fax: (212) 239-7030 June 25, 2018 VIA NYSCEF Hon. Kathryn E. Freed Supreme Court, New York County 80 Centre Street, Room 280 New York, NY 10013 Re: 270 West End Tenants Corp. v. 266 Weave, LLC and Todd Wider, Index No. 150228/2017 Dear Judge Freed: ("Defendants" We are counsel to Defendants 266 WEAVE, LLC and Todd Wider ("Defendants") in the above -referenced matter. We are writing in response to the June 22, 2018 letter submitted by counsel for Plaintiff 270 West End Avenue regarding the legal status of the Sidewalk Shed Defendants' installed by Plaintiff in front of property at 266 West End Avenue. As discussed more fully below, Plaintiff's admission that the Sidewalk Shed is not and never was in compliance with the NYC Building Code demands that Plaintiff be ordered to immediately dismantle and reconstruct the Sidewalk Shed in a manner compliant with the NYC Building Code, using Defendants' materials that will eliminate or reduce any potential damage to property. Moreover, in light of Plaintiff's inexcusable negligence, inaction and misleading representations to the Court and Defendants regarding the Sidewalk Shed and the related facade work at issue in this matter, as Defendants have previously requested, the Court should impose an appropriate license fee or other sanction on Plaintiff 270 West End. During the recent Status Conference held in this matter on June 13, Defendants advised the Court that both the architect and engineer hired by Plaintiff to submit and certify the plans and filings to obtain the DOB permit required to construct the Sidewalk Shed both had their professional licenses revoked or suspended. Specifically, the professional engineer who certified the Sidewalk Shed plans had his license suspended for applications for non- wrongfully certifying code compliant projects submitted to DOB. Moreover, the architectural firm that prepared the plans, H 2 H Consulting and Architecture, P.C., was no longer in business. 270 West End had not brought any of these relevant issues to the attention of the Court or Defendants prior to Defendants themselves raising these issues at the Status Conference. Thus, during the Status New York New Jersey Hon. Kathryn E. Freed June 25, 2018 Page 2 Conference, Defendants requested that 270 West End be directed to immediately retain licensed engineering and architectural professionals to prepare and submit to DOB the required drawings and other necessary submissions certifying that the Sidewalk Shed as presently designed and constructed is safe and in compliance with the NYC Building Code. Immediately after the Status Conference, we undertook to determine what additional information may be available regarding the DOB permit for the Sidewalk Shed, since 270 West End has plainly failed to keep Defendants and the Court properly informed of the legal status of the Sidewalk Shed. Accessing information readily available on the DOB website, we learned that the permit for the Sidewalk Shed was in fact revoked by DOB on February 9, 2018. During the subsequent teleconference held with Your Honor's law clerk, Jonathan Judd, on June 14, Plaintiffs admitted that they were not aware that the required DOB permit for the Sidewalk Shed had in fact been revoked more than four months ago and that no valid DOB Permit was currently in place. As a result of Plaintiff's inexcusable negligence and inaction regarding the status of the Sidewalk Shed, Plaintiffs were ordered to retain a licensed architect or engineer and determine whether the Sidewalk Shed is safe and in compliance with the NYC Building Code and to report back to the Court and Defendants no later than June 22. In itsJune 22 letterto the Court, Plaintiff reluctantly admits that the Sidewalk Shed is not and never has been in compliance with the Building Codel. In particular, Plaintiff 270 West End admits that the Sidewalk Shed as designed and as built does not meet the 300 pounds per square foot (psf) load requirements set forth in the Building Code. In fact, a number of the critical structural elements of the Sidewalk Shed, including the header beams, bridge deck members and Shed legs have load capacities as low as 50psf. While Plaintiff cavalierly claims that the Sidewalk Shed is not currently in imminent danger of collapse, Plaintiff's new engineer cannot and does not certify that the Sidewalk Shed as currently constructed is sufficient to serve itsprincipal purpose, namely to protect pedestrians from injury caused by the unsafe conditions on Plaintiff's south Incredibly, despite these admissions and omissions, Plaintiffs do not offer any specific plan or timeline for how and when they intend to dismantle and replace the illegal Sidewalk Shed. Based on the foregoing, Defendants renew their request that 270 West End be ordered to immediately submit the appropriate applications, plans and other documents to DOB to obtain the required permit for an appropriately designed and constructed Sidewalk Shed. Plaintiffs should also be ordered to immediately submit to the Court and Defendants a detailed work plan and schedule for replacing the Sidewalk Shed. Moreover, Plaintiffs should be required to use materials Defendants' in the new Sidewalk Shed that will eliminate or reduce potential damage to property. As the Court is aware, in constructing the current Sidewalk Shed, 270 West End Avenue chose to use the cheapest available materials. Rather than comport with best practices and use galvanized steel beams, Plaintiff's contractors used heavily oxidized and corroding beams to construct the Sidewalk Shed. Plaintiff's utilization of these rusty beams and supports has caused rust particles and rusty water from rain and melting snow to fall on to and damage the porous limestone located I Initsinitialsubmission to theCourt initiatingthisaction,270 West End Avenue thus falselymispresented tothe Court thatthe proposed Sidewalk Shed complied with allBuilding Code requirements. (NYSCEF Doc Nos. 5 and 12) Hon. Kathryn E. Freed June 25, 2018 Page 3 directly underneath the Sidewalk Shed. Accordingly, since Plaintiff admits that itwill have to reconstruct the Sidewalk Shed to bring itinto compliance with the Building Code, Plaintiff should be ordered to design and construct a new Sidewalk Shed that incorporates galvanized beams and Defendants' other similar materials to eliminate or reduce potential damage to property. During the June 14 teleconference with the Court, because Plaintiff had failed to maintain the required permit for the Sidewalk Shed, and to determine whether 270 West End had complied with itsobligations under the NYC Building Code, Plaintiff was also directed to provide certain inspection reports and related documents to Defendants by June 22. Pursuant to NYC Building Code sections 3307.6.5.7-10, 270 West End has been required to have a qualified professional prepare an initial installation inspection report and periodic follow-up inspection reports every 6 months to verify that the Sidewalk Shed is in a safe condition and meets the requirements of the Building Code. The Building Code further requires a daily inspection of the Sidewalk Shed and maintenance of a written record of such inspections. While Plaintiff provided some, but not all, required inspection logs on June 22, Plaintiff did not produce the initial inspection report or any of the required periodic follow-up inspection reports. Plaintiff's failure to conduct these required safety inspections is further evidence of its blatant disregard of its obligation to construct and maintain a safe and code-compliant Sidewalk Shed. Counsel for Plaintiff's June 22 letter also attaches certain insurance-related documents purporting to evidence coverage for Defendants as additional insureds under 270 West End Avenue's general liability policy. However, Plaintiff has not provided a complete copy of the general liability insurance policy at issue. Without a complete copy of that general liability policy, Defendants are unable to determine the scope of coverage afforded under that policy. As such, Plaintiff should be further ordered to provide a complete copy of the general liability policy under Defendants' which are purportedly named as additional insureds. It should also be noted that Defendants have unnecessarily incurred more than $8,000.00 in engineering and legal fees to evaluate a fundamentally flawed proposal by 270 West End Avenue to build additional scaffolding on the Sidewalk Shed and Defendant's property to perform repair work on south facade. Defendants would not have incurred any of these costs had 270 West End been aware, as it should have been, that the Sidewalk Shed was not in compliance with the Building Code and could never withstand the proposed additional loads. Moreover, based on its current engineer's own report, the proposed additional structures could have caused the Sidewalk Shed to collapse with potentially catastrophic consequences. In sum, Defendants continue to be concerned with 270 West End's repeated and inexcusable delays, negligence, inaction and dangerous and misleading representations to the Court and Defendants regarding the Sidewalk Shed and the facade work at issue in this matter. Likewise, for the past 16 months, the illegal and unsafe Sidewalk Shed constructed by Plaintiff continues to deny Defendants the full use and enjoyment of their property. The best remedy available to ensure that 270 West End fulfills itsunambiguous obligations to install and regularly inspect and maintain a safe and code compliant Sidewalk Shed and complete the necessary work Hon. Kathryn E. Freed June 25, 2018 Page 4 to address the unsafe conditions on its facade as quickly as possible, is to impose an appropriate license fee or other sanction on 270 West End. Counsel for Defendants are available to address these time sensitive safety issues further by telephone conference if the Court so requires. Respectfully submitted, J Frank S. Occhipinti