The following e-filed documents, listed by NYSCEF document number (Motion 005) 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200 were read on this motion to/for JUDGMENT - SUMMARY.

On December 17, 2019, building debris from the façade of 729 Seventh Ave (hereinafter, "the premises or "the Building") came loose, fell approximately fifteen stories, and struck Erica Tishman as she was walking on the sidewalk below. She died from her injuries at the scene of the accident. Thereafter, her husband Steven Tishman ("plaintiff"), as the Executor of her Estate, commenced this action against the owners, managers, and/or operators of the premises: defendants Himmel + Meringoff Properties, LLC, Meringoff Properties, and 729 Acquisition, LLC (collectively, "defendants"). Plaintiff asserts negligence, wrongful death, and loss of [*2]consortium causes of action and seeks, in addition to compensatory damages, punitive damages. In this motion sequence, defendants move pursuant to CPLR 3212 for summary judgment solely as to the punitive damages claim. The motion is opposed. For the following reasons, the motion is denied.

On February 1, 2019, Meringoff Properties ("MP") hired a Qualified Exterior Wall Inspector—engineer Brian O'Connor—to conduct a façade inspection on the building at 729 Seventh Ave as required, every five years, by Local Law § 11. (See Admin. Code § 28-302.1). Under New York City Municipal Regulations, when submitting Local Law § 11 inspection reports to the City of New York's Department of Buildings ("DOB"), the expert is required to determine and certify whether the exterior and all appurtenances are either safe, safe with a repair and maintenance program (known as "SWARMP"), or unsafe. (NYC Mun. Code, Charter, and Rules; Rules for Maintenance of Buildings, 1 RCNY § 103-04 [a].) Unlike a safe classification, where the building wall and all parts thereof are not in need of repair or maintenance to sustain its structural integrity for the next five years, a SWARMP condition is one where:

"a condition of the building wall . . . is safe at the time of inspection but requires repairs or maintenance during the next five years, but not less than one year, in order to prevent its deterioration into an unsafe condition." (1 RCNY § 103-04 [a].)

When an expert determines that the façade contains a SWARMP condition, the owner must ensure that said condition is corrected "within the time frame recommended by [the expert] and are not left to deteriorate into unsafe conditions" but, in any event, must be completed before the next five-year inspection report is submitted for DOB approval. (1 RCNY 103-04 [6].) As DOB inspector Jamael Collis put it, when the expert grades a condition as SWARMP, they are representing their belief that the "building has some defects, but the defects should be able to last longer than a year." (See NYSCEF doc. no. 149 at 43, DOB Collis' dep. transcript.)

By contrast, an unsafe condition is one that is hazardous to persons or property and requires repair within one year of completion of critical examinations. (Id.) Further, pursuant to 1 RCNY 103-04 [5], upon the filing of a report with an unsafe designation, the owner of the building must "immediately commence such repairs or reinforcements and any other appropriate measures such as erecting sidewalk sheds, fences, and safety netting as may be required to secure the safety of the public" and the condition must be "corrected within ninety days from the submission of the critical examination report." (1 RCNY 103-05 [5].)

O'Connor conducted an initial inspection of the Building's façade on February 1, 2019, and a second close-up inspection on February 4, 2019. According to his DOB inspection report, which he submitted on March 21, 2019, he observed three SWARMP conditions (see NYSCEF doc. no. 125, DOB report):

"1. DESCRIPTION: Cracked Terra-Cotta.

• LOCATION: 15th Floor Window Line 1,4, 7, 10, 17, 19, and 20.

Photo No. 01 is representative of all cracked terra-cotta at the 15th Floor level.

2. DESCRIPTION: Cracked Brick.

• LOCATION: 16th floor set back and Window line 3, 5, 8, 9, 13, 15, 16, and 18.

Photo No. 02 and 003 are representative of all cracked brick at the 16th floor set back.

3. DESCRIPTION: Cracked Corner Brick

• LOCATION: Window Line 20; Floor 3-17

Photo No. 004 and 005 show the cracked brick at the north-east corner." (Id. at 9.)^[FN1]

By email dated April 16, 2019, the DOB rejected O'Connor's report. Based upon its review, the Department commented: "1. Report (§ G & Detailed Photos): defects depicted on photo #01 may be hazardous, re-evaluate status of these defects, and confirm all loose materials were removed from building facades. 2. Report (plot plan): provide location(s) of close-up inspections(s)." (NYSCEF doc. no. 129, DOB rejection.) Thereafter, O'Connor emailed Ari Bushati—a Vice President Property Manager at Meringoff Properties—that he disagreed with the DOB's conclusion that the terra-cotta was hazardous. (NYSCEF doc. no. 130, O'Connor email.) He refiled the report on April 22, 2019.

On April 29, 2019, DOB Inspector Jamael Collis inspected the Building based on O'Connor's two previous reports. Pursuant to his inspection, Collis determined that the building's façade should be classified as unsafe, as opposed to safe with a repair program as O'Connor had concluded. Collis testified at his deposition that he disagreed with O'Connor's assessment because he had observed signs that material had already come off the building and areas that looked like they were ready to crack. (NYSCEF doc. no. 149 at 42, Collis dep. transcript.) At the time, he was concerned that if immediate repairs weren't taken or protections put in place, "it seemed like the conditions were at the top of the parapet and they could fall down onto the street." (Id. at 44-45.) Based upon his review, Collis not only classified the façade as unsafe, but issued a Class (1) violation to 729 Acquisition (as the building's owner). (Id. at 47.)

For context, Administrative Code § 28-201.2 empowers the commissioner of the Department of Buildings to promulgate rules classifying building code violations as immediately hazardous violations, major violations, or lesser violations. In turn, 1 RCNY § 102-01 defines these classifications. Immediately Hazardous Violations—or Class (1) violations—are those where the "violating condition poses a threat that severely affects life, health, safety, property, the public interest . . . as to warrant immediate corrective action." (1 RCNY §102-01 [b].) Major Violations—Class (2) violations—are those where the condition affects life, health, safety, property, or the public interest but does not require immediate corrective action." (Id.) Lesser Violations are defined as those where the violating condition has a lesser effect than Class (1) or Class (2) violations.

As such, on April 29, when the DOB issued the violation based on New York Administrative Code § 28-302—which requires building owners to maintain the exterior walls and appurtenances to be maintained in a safe condition (NY Admin. Code § 28 302)—it applied [*3]the most severe Class (1) violation, finding that the façade posed a threat to the health and safety of the public. (NYSCEF doc. no. 132, April 29, 2019 violation.) More specifically, the DOB's conclusion that 729 Acquisition had failed to maintain the exterior façade was based on the fact that "[a]s noted: EXP1 and 2 [Exposure 1 and 2] has damaged terra cotta at areas above the 15th floor in several locations which poses a falling hazard for pedestrians." (Id.) The accompanying Summons and Commissioner's Order issued by Collis set an Office of Administrative Hearings and Trial ("OATH Hearing") date for June 20, 2019, where 729 Acquisitions could challenge the DOB's violation. (NYSCEF doc. no. 153, summons.) Under the "Remedy" section, Collis indicated the building could "provide safety measures, maintain exterior building façade, repair damaged façade as per 1 RCNY 103-04" (Id.)

Defendants point out that § 3307.6 of the New York City Building Code, entitled "Sidewalk shed," requires an owner to erect this particular measure to protect pedestrians from construction or demolition operations, not during façade inspections. Nonetheless, both O'Connor and Collis indicated that standard industry practice when a building receives an "unsafe" designation from the DOB is to erect such a sidewalk shed or, at least, put in place some other protective measure. O'Connor testified, "once the DOB gives a Class (1) unsafe violation, that is it. Everyone knows you have to put up a shed when that happens . . . They [defendants] know this world." (NYSCEF doc. no. 117 at 43, O'Connor dep. transcript; id. at 34 ["Q: After the city rejected the Local Law 11 filing did you think that it was appropriate to put up a sidewalk shed? A: Yes. Q: Did you recommend . . . that they put up a sidewalk shed? A: I don't remember . . . but . . . Meringoff, they have a construction division that they know what to do when the City gives a Class (1) unsafe, you put up a shed [sic]".) Collis testified that, after the Building received the "unsafe" designation, he expected that its owners would erect the sidewalk shed as well. (NYSCEF doc. no. 149 at 65.) Jason Vacker, Meringoff Properties' President and CEO, acknowledged that sidewalk shed permits can be obtained within days and that they could have begun constructing one as early as April 2019. (NYSCEF doc. no. 115 at 105, Vacker dep. transcript.) O'Connor estimated that building the shed would have cost defendants between approximately $20,000 and $25,000. Neither party disputes that defendants did not erect a sidewalk shed in May 2019 (or anytime thereafter) once it received the DOB's "unsafe" grade.

After receiving the "unsafe" designation, defendants sought to challenge the designation at the OATH hearing while concurrently preparing plans for the eventual repairs.

With respect to scheduling the necessary repairs, in compliance with SWARMP-designated conditions which are, by definition, given only where repairs are not needed for at least one year, O'Connor noted in his report that the underlying façade must be repaired by April 2020—a 14-month window. Nonetheless, he emphasized numerous times to Meringoff Properties' Bushati that he wanted to complete the work by the end of 2019. (NYSCEF doc. no. 117 at 27 ["I remember having the conversation with Ari, he is the owner's rep at Meringoff, I said based on what I am seeing on the work history, I definitely want to do the work this year."].) In his words, "my judgment call not only [was] SWARMP, [but] you have a very short window to do repairs." (Id. at 46.) Further, although he was not necessarily concerned that the façade could fall and hurt someone within 12 months, he averred that "I wasn't comfortable waiting to do the work the following year. [Ari] said ownership doesn't want to do work this year, they want to wait . . . I said no, that's not going to happen." (Id. at 49.) As he later explained:

"I was definitely one hundred percent the cracked terra cotta had to start . . . terra cotta [*4]can look perfect and fail if steel inside is corroding but it [is] also the terra cotta [was] protruding from the façade. It was not embedded in the wall." (Id. at 73.)

Given this short timeframe and the necessity of the repairs, O'Connor provided defendants with a "project manual" in early May 2019 and sent out the proposal to six potential contractors with invitations to bid in mid-May 2019. (NYSCEF doc. no. 134.) After a pre-bid walkthrough was held on May 28, 2019, bids were due on June 20, 2019. (Id.) On July 31, 2019, Meringoff Properties selected Jerrick Associates, Inc.'s bid to perform the façade repairs.

As to the administrative process, on May 2, 2019, the DOB rejected O'Connor's refiled report; on June 2, 2019, O'Connor emailed Bushtati that the "DOB is insisting this building is not safe;" and on July 24, 2019, the DOB issued a second violation for failure to certify that they had corrected the previous Class (1) hazardous condition. (NYSCEF doc. no. 157, July 24, 2019 violation.) Meanwhile, defendants requested and received an adjournment of the June 20, 2019 OATH hearing to September 12, 2019. In advance of the hearing, O'Connor wrote a letter to the Environmental Control Board, in which he informed it that defendants had prepared plans to correct the façade defects, that they were finalizing a contract with a qualified contractor, and that "all work would be performed in 2019." (NYSCEF doc. no. 155, O'Connor letter.) At the September 12 hearing, 729 Acquisition and the DOB's representative moved to have the violation reduced from a Class (1) violation to a Class (2) violation, which indicated immediate corrective action was not needed. In his Decision, the OATH Hearing Officer, in fact, downgraded the violation. (NYSCEF doc. no. 140, OATH hearing decision.)

On or around September 19, 2019, approximately three months before the accident, the DOB issued the permit required to build the sidewalk shed in accordance with Jerrick Associates' safety plans. (NYSCEF doc. no. 143, safety permit); thereafter, in early November 2019, the DOB approved O'Connor and the defendants' repair plan. Nonetheless, Bushati testified that, at a late-October or early November 2019 budget meeting for the upcoming fiscal year, Meringoff Properties budgeted the expenses for the façade repairs, including putting up the sidewalk shed, for 2020. (NYSCEF doc. no. 116 at 104, Bushati dep. transcript.) At no point while challenging the violation through the OATH administrative process, nor in the approximately three months thereafter, did defendants erect a sidewalk shed. Lastly, the parties do not dispute that, had a sidewalk shed been in place, the incident and Erica Tishman's death on December 17, 2019, would not have occurred.

Under CPLR 3212 (b), a proponent moving for a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to eliminate any material issues of fact from the case. (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010]; Kesselman v. Lever House Rest., 29 AD3d 302 [1st Dept 2006].) Once a defendant establishes their entitlement, the burden shifts to the plaintiff to raise a triable issue of fact. (Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) Since summary judgment is an extreme remedy, the Court must draw all reasonable inferences in favor of the non-moving party. (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012].) Where there is doubt as to the existence of material facts or where different conclusions can reasonably be drawn from the evidence, summary judgment should be denied. (Udoh v Inwood Gardens, Inc., [*5]70 AD3d 563, 565 [1st Dept 2010].)

In tort cases, an award of punitive damages may be available where a plaintiff can demonstrate that the defendant's conduct reflects a heightened degree of culpability in causing their injury. In Chauca v Abraham, the Court of Appeals explained that punitive damages are intended to address "'gross behavior' that willfully and wantonly causes . . . hurt to another"—where the defendant's actions constitute "exceptional misconduct which transgresses mere negligence." (30 NY3d 325 [2017], citing Sharapata v Town of Islip, 56 NY2d 332 [1982].) Under Marinaccio v Town of Clarence, punitive damages are available only when a defendant "purposefully causes, or is grossly indifferent to causing, injury." (20 NY3d 506 [2013] [explaining that the standard for imposing such an award is strict and only in exceptional cases, where conduct manifests "malice, a fraudulent or evil motive or a conscious and deliberate disregard of the interests of others"].)

In Bishop v 59 W. 12th St. Condo, the First Department summarized the standard: the conduct must be "intentional or deliberate, present circumstances of aggravation or outrage, evinces a fraudulent or evil motive, or is in such conscious disregard of the rights of another that it is deemed willful and wanton." (66 AD3d 401, 402 [1st Dept 2009].) Bishop makes clear—along with cases such as Randi A.J. v Long Island Surgi-Ctr (46 AD3d 74, 81 [2d Dep't 2007]) and Gomez v. Cabatic (159 AD3d 62, 73 [2d Dept 2018])—that an "evil motive" or conduct that essentially constitutes a crime are not, as defendants argue, required for such an award; nor are such cases the only type in which punitive damages may be available. (See also Solis-Vicuna v. Notias, 71 AD3d 868, 871 [2d Dept 2010] ["Even absent proof of a mens rea of intent, punitive damages may be assessed where a defendant's actions evince a high degree of moral culpability or demonstrate a wanton or reckless disregard for the rights of the plaintiff"].)

Here, since defendants are moving for summary judgment, they bear the burden of establishing that plaintiff is not entitled to punitive damages under the standard cited above: specifically, they must demonstrate that they did not display an evil motive or act in bad faith and that their conduct was not intentional or deliberate and did not constitute a conscious disregard for the rights of others. Put differently, defendants must establish that no reasonable jury would award plaintiff punitive damages. (Vandashield Ltd v Isaacson, 146 AD3d 552, 555 [1st Dept 2017] ["It is for the jury to decide whether the defendants' dealings with the plaintiffs were so reprehensible as to warrant punitive damages"]; Sieger v Zak, 74 AD3d 1319, 1319 ["Viewing the evidence in the light most favor to the plaintiffs, a rational jury could conclude that (the defendant) engaged in 'conduct having a high degree of moral culpability.'"]; Randi A.J., 46 AD3d 74, 84 ["if there is a reasonable basis for whether an award of punitive damages . . . whether such damages should be awarded and the amount of such award are issues for the jury"].)

Defendants contend that their conduct does not rise to this heightened level of culpability in which punitive damages can be awarded. In their view, they relied on a qualified expert to comply with Local Law § 11. When the DOB disagreed with his assessment of the façade and his classification of the terra cotta as SWARMP, he maintained his position and refiled the report without any pressure from 729 Acquisition or Meringoff Properties. Relying on O'Connor's expertise, they challenged the DOB violation, as was their right, in the administrative OATH process—a process whose ultimately conclusion, they assert, vindicated O'Connor's initial assessment since the violation was downgraded to a Class (2), all with the understanding that imminent repairs were not needed. While opposing the Class (1) violation, they began the repair [*6]process. They hired O'Connor to design the plans and to submit them to potential contractors for bids, one of which was accepted as early as late July. To them, plaintiff's punitive damage claim constitutes little more than an assertion that the façade was poorly maintained. From the Court's perspective, this argument remains unpersuasive: to whatever degree this evidence may be said to demonstrate that defendants acted without "evil motive" and in good faith, this evidence does not establish that defendants' conduct was free from wanton or reckless disregard for the safety of pedestrians.

In finding that a potential jury could award punitive damages based on the circumstances described above, several factors are especially critical. Under 1 RCNY §103-04, a building owner must repair or correct a SWARMP condition within five years but not less than one year in order to prevent its deterioration into an unsafe condition. In O'Connor's report, he recommended that the terra cotta and other defects must be completed by April 2020—just 14 months later. Whereas he ultimately deemed the terra cotta safe with an appropriate repair program, he gave defendants "a very short window to do repairs." Further, it is clear from O'Connor's testimony that he considered the outer limits of this narrow window to present risks to the safety of pedestrians to the point of requiring the repairs to be completed within ten months (or what otherwise might be considered "unsafe"). Numerous times O'Connor testified that he was unwilling to let the repairs extend past 2019; he averred that he understood the certification of the terra cotta as a SWARMP condition meant that 729 Acquisition would start the face work immediately (NYSCEF doc. no. 117 at 43); he explained that, while the two other conditions may not be as severe, the terra cotta condition had to be done immediately because "terra cotta can look perfect and fail if steel inside is corroding but it [is] also the terra cotta [was] protruding from the façade. It was not embedded in the wall" (id. at 73).

Even accepting O'Connor's assessment, then, the condition of the façade—as it was known to Meringoff Properties and 729 Acquisition in April 2019—was, at very best, borderline "unsafe," regardless of whether the two experts agreed on the specific technical denomination. Under these circumstances, where the Local Law § 11 report and O'Connor's representations to management indicated a serious risk of injury regardless of the assigned classification, a jury may find that 729 Acquisition and Meringoff Properties displayed a conscious disregard for the lives and safety of pedestrians by altogether ignoring Inspector Collis' "unsafe" determination and instead choosing—against industry standard—to wait nine months (until immediately after the incident) to erect a sidewalk shed.

Such a conclusion is even more reasonable when considering that, once they obtained the necessary permit from the City in mid-September 2019, they still waited an additional three months and, given 729 Acquisition's determination to allocate funds for the project in 2020, would have waited until after O'Connor testified the conditions needed to be fully repaired. And this is before taking into account the fact that permits for sidewalk sheds can be obtained within days (NYSCEF doc. no. 115 at 105), construction can be completed within a short period of time thereafter (id.), and, when compared to the repairs themselves and the risk of injury, the cost is relatively low (NYSCEF doc. no. 117 at 54)—all of which is admitted by either Vacker, Bushati, or O'Connor. Moreover, in the same way that the OATH Hearing Officer's determination to downgrade the violation to Class (2) does not demonstrate that defendants were free of negligence, it does not demonstrate that their course of conduct was free from the heightened culpability. Again, even with the downgraded OATH violation, a reasonable interpretation of the facts is not that facade "turn out to be unsafe despite [O'Connor's] earlier opinion," as defendants [*7]argue, but that it had been unsafe, regardless of the classification, and defendants chose to forego protective measures.

Ross v Louise Wise Services, Inc.—cited by defendants—is a useful contrast. (8 NY3d 478 [2008].) There, the Court of Appeals reversed the Appellate Division and granted summary judgment dismissing the punitive damages claim. As defendants' point out, its determination was, largely if not in wholly, based upon the fact that experts in the relevant scientific field disagreed about certain underlying principles and the implications of that body of literature on an adoption agency's policy of withholding mental health diagnoses of the biological parents (i.e. schizophrenia) from adoptive parents. Thus, the intentional withholding of significant information from the adoptive parents may have evidenced fraud, but because experts disputed whether such information in the hands of the adoptive parents might not be in the best interest the adoptive child, the Court of Appeals explained that the agency's conduct did not evince the high degree of moral turpitude for punitive damages. (Id. at 479, 489.) Here, however, a reasonable jury, like the Court, may view O'Connor's and Collis' respective assessments of the façade as functionally similar in that repairs were needed more immediately than defendants were willing to perform and, even with more time, that a safety shed should have been erected in April 2019.

Defendants also cite Brown v Maple 3 (88 AD3d 224 [2d Dept 2011]) in support of their position that punitive damages are inappropriate. There, the plaintiffs alleged that their child had been exposed to lead paint, which the Department of Health confirmed via its own investigation. In December 2005, it ordered the landlord to complete an abatement of lead paint violations within five days, but was only partially completed by February 2006 and then only fully by late March 2006. According to the Second Department, punitive damages were inappropriate as the landlord had demonstrated that it had conducted the requisite renovations within a reasonable time after receiving the order. Its conduct, therefore, was not "so gross, wanton, or willful or of such high moral culpability, as to warrant punitive damages." (See Brown, 88 AD3d at 235-236.) To the Court, however, it is unclear how Brown should advance defendants' position. First, as of December 17, 2019, ten months after O'Connor first inspected the façade, work to repair the façade had yet to begin and, based on O'Connor's testimony that work progress could not be made during winter months, it is unclear whether the project would have been completed by April 2020 as required. As such, defendants have made no showing that the requisite repairs, or at least progress, were made within a reasonable time. More importantly, plaintiff's argument for punitive damages rests on 729 Acquisition and Meringoff Properties' failure to put in place proper protective measures—not on the timeline in which the substantive repairs were ultimately completed. Brown does not address such an analogous issue.

The same problem arises with defendants' citation to Shannon v New York Times Bldg. (170 AD3d 600 [1st Dept 2019]) and Marinaccio v Town of Clarence, (20 NY3d 506 [2013]). In Shannon, the City issued an elevator violation, which a private elevator company later inspected and advised the building owner to "monitor a 'rouge' condition of the elevator hoist." Moreover, notice of the possible defect, unlike here, was at issue as the term "rouge" may not have been an indicator that the elevator's cables were worn. (Id. at 601-602.) In this context, there is an appreciable distinction between the Shannon defendants' conduct—their failure to address a defect they may or may not have had direct knowledge of—and that of 729 Acquisition and Meringoff Properties—their failure to install protective measures where the façade posed potentially serious risks to pedestrian and was known to require future repairs. All of which [*8]could explain why, in the one case, punitive damages were not warranted as a matter of law, whereas, in the other, a jury could find a conscious and willful disregard for safety. As to Marinaccio, defendants argue that the Court of Appeals, in vacating a punitive damages award, considered the defendants' full compliance with all federal, state, and local planning laws and regulations. This argument (1) confuses plaintiff's position and the basis for such an award being their failure to construct a sidewalk shed, not the adequacy of their repair process, and (2) does not account for the fact that they do not dispute their failure to follow industry standard after receiving a Class (1) violation.

Accordingly, for the foregoing reasons, it is hereby,

ORDERED that defendants' motion for summary judgment is denied in its entirety; and it is further

ORDERED that counsel for plaintiff shall serve a copy of this Order, along with notice of entry, on all parties within twenty (20) days

This constitutes the Decision and Order of the Court.