Board found that prior corrected violations justified increased penalty for glass panel broken by snapped cable. On December 10, 2008 a glass panel fell from the 50th floor of One Bryant Park in Midtown, Manhattan after being struck by a steel safety netting cable. Buildings issued a notice of violation to the contractor, Tishman Construction Corporation, for failing to safeguard persons and property while working on the building. The issuing officer noted that similar incidents involving falling glass occurred at the site in May and September of 2008 and charged Tishman with an aggravated violation and increased fine.

At a hearing before an ALJ, Tishman argued that it took all necessary safety precautions and that a mechanical defect caused the cable to snap. Tishman further argued that it should not be charged with an aggravated offense because it stipulated to or corrected the prior violations. Buildings countered that the fact the cable snapped and broke the glass indicated that Tishman failed to maintain safety measures. To support the increased fine, Buildings submitted a computer record showing 39 NOVs against Tishman, nineteen of which were upheld or settled. The ALJ upheld the NOV and found that the evidence established a history of non-compliance warranting an increased penalty.

Tishman appealed to the Environmental Control Board, reiterating that the incident was caused by the defective cable and not by a failure to provide safety measures. Tishman claimed that the mere presence of multiple prior-corrected violations was insufficient to warrant an aggravated violation and such designation required establishing a pattern of failing to obey stop-work orders, filing false documents, or multiple defaults.

The Board denied the appeal, finding that Tishman failed to refute Buildings’ reasonable inference that the glass fell as a result of Tishman’s failure to maintain the cable. The Board noted that Tishman had offered no evidence that it had inspected the cable to determine if it was defective. The Board further found that the correction of prior violations did not negate Tishman’s pattern of non-compliance with the City’s construction codes, and the imposition of a $6,000 civil penalty was therefore warranted.

NYC v. Tishman Construction Corp. of NY, ECB Appeal No. 1000692 (Oct. 28, 2010). CITYADMIN.