Owner Loses Chimney Claim

Owner of building with a chimney sued the developer of an adjacent, taller building for the expense of bringing the chimney into Code compliance. West Chelsea Building LLC owns a 10-story building, located at 516 West 26th Street, Manhattan, with a chimney on the roof. Jack Guttman and others own an adjacent building at 543-545 West 25th Street. Between 2005 and 2007 the Guttman group converted its property into the Arts Tower Condominium and increased its height to 21 floors. The height of the new building exceeded the height of the chimney on West Chelsea’s adjacent building, which rendered the chimney non-compliant with the City Administrative Code §27-859. The Code requires that a chimney be at least as high as the height of adjoining structures.

West Chelsea sued the Guttman group to recover the cost of modifying its chimney to become compliant. The Guttman group moved to dismiss West Chelsea’s complaint, arguing that the complaint was time barred by the three-year statute of limitations. The Gutman group’s building was completed in 2007 and West Chelsea did not commence its lawsuit until 2014. The Supreme Court agreed with the Guttman group, applied the three-year statute of limitations, and dismissed West Chelsea’s complaint.

West Chelsea appealed. The Appellate Division, First Department affirmed, ruling that the three year statute of limitation applied and that the limitations period ended in 2010. West Chelsea had argued that the statute of limitations did not commence to run because the Guttman group failed to give it notice of the height of the new building as required under the City Administrative Code prior to starting to work. The Administrative Code requires a developer of a new building to give the owner of an adjacent building with a chimney notice along with plans for bringing the chimney into compliance. The developer must also bear the cost of altering the existing chimney to bring it into compliance.

The Appellate Division ruled that the statute of limitations period commenced when all the facts necessary to establish a right of action had occurred.  West Chelsea’s claim accrued when the Guttman group’s building reached a height that exceeded the height of West Chelsea’s chimney vent.  West Chelsea conceded that it was aware of the new building’s height by the time construction was substantially complete in 2007. Although the court did not condone non-compliance with the Administrative Code, West Chelsea was fully aware of the conversion and its impact on its chimney.

West Chelsea Building LLC v. Jack Guttman, 29 N.Y.S.3d 15 (1st Dep’t 2016).


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