A Plumbing Valve ... A Lawsuit Over the Location of a Plumbing Valve. Really.
411 East 53rd Street
July 25, 2014 — We've covered lawsuits filed by and against co-ops and condos for decades, here at Habitat. And just when we think there's nothing new under the sun, we find something new in the garage — specifically, the garage at 411 E. 53rd Street in Manhattan's Sutton Place neighborhood. And if you think a condo board and two men who grew up in a real-estate family wouldn't go to court over a backflow preventer — a plumbing valve that costs a few hundred bucks, plus labor — well … you'd be wrong.
A backflow preventer, or backflow-prevention device, is a piece of plumbing that keeps contaminated water out of drinking water when contaminated water threatens to "backflow" due to a sudden or unexpected change in water pressure. The New York Department of Environmental Protection mandates these devices for commercial properties and businesses but also residential buildings that have roof tanks, water boilers that use rust-inhibitors or other water treatment chemicals, multiple water-service lines and other such specifics.
DEP Charge
On February 13, 2014, the DEP ordered the condo board to install a backflow preventer in the building's garage. The garage, however, is one of the building's commercial units, and owned not by the condominium but by brothers Barton and Stephen Perlbinder, sons of the condo sponsor. Despite the City's order, the Perlbinders wanted the board to install the backflow preventer not inside the garage where the DEP said to install it, but outside, in a heated enclosure under some steps.
Why? The Perlbinders believed installing it where the DEP said to could potentially cause water damage in the garage and interfere with the Perlbinders' use of the garage "as they see fit." The brothers claimed that the condo board submitted faulty plans for the installation that inaccurately depicted the layout of the area where DEP ordered it to be installed — and that if the plans had been accurate, the DEP would not have approved them.
Measure for Measure
To support this contention, the Perlbinders submitted an engineer's report recommending the aforementioned alternate, outdoor space. Now, DEP and New York State Department of Health guidelines say a backflow preventer should be installed within five feet of the water meter, which in this case was located in the sub-cellar level of the two-story garage. Unfortunately, the Perlbinders' engineer's report didn't specify the distance from the water meter to the outdoor location.
And as Judge Shirley Werner Kornreich wrote in her decision this month, citing a 1974 precedent, "A court should not substitute its judgment for an administrative agency's determination of questions of fact in an area where the agency has greater expertise than the reviewing court."
Check and mate, condo board.
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