Citation Numbers: 113 Misc. 2d 246
Judges: Adler
Filed Date: 3/4/1982
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
Motion by the City of New York to tax and adjust the. costs and disbursements incurred by it incidental to the above-captioned “Unsafe Building” proceeding and to obtain a judgment for the amount of such costs and disbursements, such judgment to be a lien against the subject premises as provided by section C26-83.5 of the Administrative Code of the City of New York.
The factual background, in brief, is as follows:
On February 1, 1980, a five-alarm fire occurred at the subject premises, then a 12-story vacant masonry multiple dwelling located at 97 Columbia Street, Brooklyn, New
In an affidavit challenging the city’s application, Mr. Eichner, as president and representative of the 97 Columbia Heights Housing Corp., the owner of the premises, states two major contentions. His first contention is that the demolition carried out by the city pursuant to the command of the court precept was done without first advertising for bids pursuant to subdivisions 1 and 2 of section 103 of the General Municipal Law, and that this is fatal to the city’s claim to seek a judgment for money expended to pay for the demolition.
Considering the desperate urgency of the situation, the city’s demolition division substantially complied with the spirit of subdivisions 1 and 2 of section 103 of the General Municipal Law by soliciting telephone bids from four demolition contractors and awarding the contract to the lowest bidder, which was Associated Wreckers, Inc.
The second major contention stated by Mr. Eichner is that the corporate owner of the building was not afforded the opportunity, pursuant to section C26-82.5 of the Administrative Code, to perform the requirements of the precept.
This contention also lacks merit. Perusal of the record herein clearly reveals that respondent’s plan for shoring and bracing was properly rejected by the city on the ground it failed to comply with recognized engineering principles and failure by Mr. Eichner to make, on behalf of the respondent, a valid offer to perform the requirements of the precept at respondent’s own cost and expense as provided in section C26-82.5 of the Administrative Code. For the emer
Section C26-82.5 of the Administrative Code, entitled “Repair or removal under precept”, states in part: “The owner of such structure, or part thereof, or premises * * * if he applies to the superintendent immediately upon the issuing of such precept and pays all costs and expenses incurred by the city up to that time, shall be allowed to perform the requirements of the precept at his own proper cost and expense, if the performance shall be done immediately and in accordance with the requirements of such precept.” (Emphasis added.)
Respondent didn’t offer to pay this sum to the city apparently because it didn’t receive a settlement from the insurers.
In any event, if the respondent desired to shore and brace the building instead of having it demolished, it should have sought by motion, in this unsafe building proceeding, to have the court modify the decretal provisions of the precept so as to provide for shoring and bracing, or commence an article 78 proceeding to obtain judicial reversal of the commissioner’s decision. Neither legal remedy was taken. Respondent’s failure to timely seek these expeditious legal remedies may fairly be regarded as acquiescence to the demolition which it now, 20 months later, seeks to have declared unlawful.
Moreover, the court finds no merit to Mr. Eichner’s challenge to the claim of the city to include in its demolition costs five additional items of expense totaling $12,456.62. Itemized statements of each are attached as Exhibit “F” to the city’s notice of motion. The five additional charges were authorized by the contract between the city and Associated Wreckers, Inc., and were payment for work not included in the scope of the original contract. In the circumstances, this work was necessary to make certain that the demolition task was completed with proper concern for the safety of the demolition workers, the area residents and the general public.
The court has considered the other objections raised by the respondent and finds them to lack merit. Upon the
Accordingly, the motion is granted in all respects.