Bao Fusion Food, Inc. v. West 38^th Street Holdings LLC

(NY Supreme Court, October 12, 2012)

We represented: Plaintiff

Honorable Eileen A. Rakower, J.S.C .

DECISION and ORDER

(Following a hearing on the record not transcribed herein, the following order was spread upon the record:)

THE COURT: I've listened to all the testimony, I I've reviewed the papers, I've looked at the photographs, I've looked at the evidence that was adduced before this court, the affidavits of the experts, and I find that a balancing of the equities would demand that this sidewalk shed remain in place. This is not a pristine facade. This is not a facade that shows no issues whatsoever and so one must conclude that this sidewalk shed was erected as a ruse to harass your client.

I will allow your petition to go forward. You can get an answer, you can litigate this; but so far as the temporary or preliminary injunction is concerned, there are absolutely issues with this facade. You can quibble over whether or not a temporary or permanent fix on maintenance or a fix would be preferable to your client, but I think that public policy demands that we encourage owners to make their facades safe in a permanent way. And so I'm not going to tell the owner that he shouldn't opt for the permanent fix because that would require a sidewalk shed for the safety of the public. I want the facade to be safe so that people who traverse this sidewalk do not have to worry about cement structures falling on them. And the owner has done a reasonable thing. He has erected a sidewalk shed at the level where the repairs need to begin. Calling something a hole that's a little bigger than a fist and calling something a hole that's ten inches by ten inches, I think those are really different things. And a hole that's ten inches by ten inches with space behind it really leads one to wonder whether that entire structure could fall.

And I'm not going to be the one that has to worry that I had this sidewalk shed taken down and then all that fell on someone's head. Better the owner should do the more cautious thing.

So on a balancing of the equities, it's not just between your client and the owner, the public is involved and the safety of the public is involved. And I'm going to direct that the sidewalk shed remain in place for now.

I will, however — I heard no testimony that a screen was required. So I will direct that the screen be taken down. So the sidewalk shed should be modified to take down the screening, unless ongoing work requires it to be put back.

Have you answered the petition?

MR. KRANTZ: I have, your Honor. I've also served a demand for a bill of particulars and I have intentions of serving discovery demands as well.

THE COURT: All right. Very good. Then your litigation will take its course.

MR. KRANTZ: Thank you, your Honor.

MR. ITKOWITZ: Your Honor, before you close the record on this motion, I would ask your Honor to consider setting a deadline for them to complete their evaluation of what work needs to be done. Because the one other thing that cries out from this record is that Mr. Geiger was there on August 11th and they still haven't done a probe.

They've done nothing in terms of evaluating what needs to be done and submitting any plan.

THE COURT: You asked for an injunction directing that the sidewalk shed come down. That's denied. And I'm not going to set a deadline because we all know that there are many, many, many offices and requirements involved.

And as, I think, we heard testimony and we talked about, and I might have even said, you know, you can watch TV and they build a house in a week for people. What's the name of that show? Extreme Home Makeover, one of those –

MR. KRANTZ: Yes.

THE COURT: — where they build a house in a week and that's great. You can build a house in a week. But the reality is, that all the ducks don't line up in a row for things to happen in a week. And so whether somebody can complete this repair in a certain amount of time and what the realities are of getting the Building Department to sign off on plans, getting permits, getting contractors, the weather cooperating, because of course this is an outdoor repair, those are all things that are not wholly within the owner's control. And so no, I will not direct a schedule.

MR. ITKOWITZ: Will you direct them to proceed forthwith?

THE COURT: No.

MR. KRANTZ: Thank you, your Honor. Is this the order on the record?

THE COURT: Yes.

MR. KRANTZ: Thank you.

MR. ITKOWITZ: Can you set this down for a preliminary conference, your Honor?

THE COURT: Check with my clerk.

MR. KRANTZ: I haven't even served my demand yet.

THE COURT: Arrange it with my clerk.

(Discussion off the record.)

THE COURT: So, for the record, the screening is to be down by 3:00 p.m. on Tuesday.

MR. ITKOWITZ: Thank you, your Honor.

THE COURT: Tuesday is the 16th.

MR. KRANTZ: 3:00 p.m. on 10/16. Screening down. Okay. Thank you, Judge.

MR. ITKOWITZ: Off the record?