A Sidewalk Shed Meets the Pandemic on West 99th Street: Did Construction and Delay Constitute a Trespass?

This was originally posted on the SGR Blog.

Construction in New York City often leads to the long-term installation of façade scaffolding and sidewalk sheds that interfere with access to street-level commercial properties. Needless to say, as a recent case illustrates, scaffolding and a sidewalk shed are combustible ingredients for litigation, especially where the pandemic delays the completion of construction.

Steven and Shulie Kirschner are shareholders in a co-op located at 233 West 99th Street in Manhattan. They have a proprietary lease for the commercial space located on the ground floor of the co-op. The Kirschners claimed that the Board erected a sidewalk shed on August 31, 2019, in front of their space without their permission. They complained that the sidewalk shed continued to obstruct their business.

The Kirschners sued the coop, the Board members, the management company, and its agent for a declaratory judgment, trespass, nuisance, mandatory injunction, conversion, breach of fiduciary duty, and legal fees.

The Board moves to dismiss on the ground that the sidewalk shed was erected to protect the public while the co-op repaired the facade and the windows. They claimed that the lawsuit was merely an effort by the Kirschners to force the Board to take down the sidewalk shed—and pointed to the proprietary lease, which made clear that the commercial space had no interest in the sidewalk.

The Board argued that they were responsible for keeping the building in good repair. And explained that they were replacing steel windows with fire-rated windows on certain floors and also replacing other windows on floors that had aluminum windows. The sidewalk shed did not block access to the Kirschners’ commercial space. And the Board was required to erect a sidewalk shed in order to complete the necessary window work.

But the Kirschners asserted that the sidewalk shed encroached on their business and was an “abnormally large sidewalk shed and scaffolding.” They complained that the shed raised safety concerns and interfered with the quiet enjoyment of their space. And argued that no window work had been done since the scaffolding was erected in August 2019.

And the Board emphasized that there had been no taking of, or entry into, the Kirschners’ leasehold interest.

The Court found that erecting a sidewalk shed did not constitute trespass, nuisance, conversion, or a breach of fiduciary duty by the Board. The Court found that the Kirschners did not state a viable cause of action where the co-op put up protective devices required by law.

The Kirschners’ complaint only contained conclusory assertions. And they did not adequately explain why a protective device that was required by law should be taken down simply because of their objection. The Court recognized that the Kirschners believed the shed hindered their business and was not aesthetically pleasing. They also suggested the sheds led to unsavory characters congregating underneath. But those amounted to mere complaints, not to causes of action.

And the business judgment rule permitted Board to erect the sidewalk shed to protect people walking on the sidewalk in front of the co-op. It also helped protect the Board from liability by reducing the chances that passersby would get hit with falling debris during the window repair. Of course, that was the entire point of the scaffolding laws—to allow construction and protect pedestrians.

Kirschners’ allegation that Board had not actually done the window work in over a year was a reasonable point but did not justify denial of the motion. Because the ongoing pandemic had slowed construction work (and stopped it completely for months during 2020), the Court could not find that Board’s failure to complete the work gave rise to a cause of action.

The facts and timing did not support a cognizable cause of action. Instead, the allegations from the Kirschners merely established that they were unhappy with how the Board was handling the work. That may be why they sued everyone, including the individual members of the Board. But unhappiness was not a basis for the relief sought from the Court.

The motion by Board to dismiss the complaint was granted.

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