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Sutton Madison, Inc. v 27 East 65th Street Owners
Corp.
2002 NY Slip Op 30105(U)
June 25, 2002
Supreme Court, New York County
Docket Number: 103980/02
Judge: Shirley Werner Kornreich
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- NEW YORK COUNT
PART
INDEX NO.
MOTION DATE




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Plaintiff,                                                                                          Index No.:
DECISION, ORDER and
JUDGMENT
Plaintiff and defendants are cotenants pursuant to a ground lease affecting a 14-story
building located at 27 East 65th Street, New York, New York, on the corner of 65” Street and
Madison Avenue. The first floor, which is leased from the owner by plaintiff (“plaintiff’ or
“Sutton”),   occupied by several subtenant retail stores, including a branch of Citibank, a
women’s clothing store called                                                                       an optician’s shop known as “Oliver                                                  a garage,
and a restaurant known as Ferrier. Ferrier is 50% owned by the principals of                                                                                                             Elliott and
Irving Sutton. The upper stories of 227 East 65” Street consist of residential apartments
controlled by defendant 27 East 65” Street Owners Corp.                                             or                                                                                   a cooperative
corporation.
On February                                                                                         engineer, Eugene Ferrara, filed a “Local Law 11”report
regarding the crumbling condition of the blue glazed bricks which make up the facade of the
residential portion of the building.  According to Mr Ferrara, such bricks, which were popular in
the                                                                                                 are susceptible to problems caused by water penetration and retention.  Plaintiffs
expert has not refuted these assertions. Unlike standard red bricks, which are porous and allow
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water to exit, such blue bricks retain water behind their glazing. Mr Ferrara goes on to related
how, after decades of successive freezing and thawing, contracting and expanding, glazed bricks
begin to crack, chip, bow, sag, and, in some cases, fall off the building. Defendant has submitted
numerous photographs showing “waving,” bowing and bulging of the blue glazed bricks across
large tracts of the exterior walls of the residential portion of 27 East 65” Street.
On March 4,2002, or within ten days of receiving 27’s report, the New York City
Department of Buildings served a notice of violation on defendant. In response to this notice, and
in compliance with the requirements of Local Law 11 (New York City Administrative Code
defendant erected a                                                                                       around the building. The law requires that such scaffolding
be constructed to protect the public from any unsafe condition on a building face, and that the
protective scaffolding must remain in place until all repairs on the building walls are completed.
See New York Administrative Code                                                                          and                                                           Although the statute
provides that a repair should be completed within 30 days, it allows for extensions of time based
upon an architect’s or engineer’s projection regarding how much time is needed to render the
facade safe.
In light of defendant’s engineer’s estimate that 40-65% of the bricks and other exterior
components of the instant building had to be replaced, 27 decided to “reskin” the entire facing
with traditional, porous red bricks - a move which would not only cure the current problems but
would prevent future ones. Defendant’s expert estimates that this task can be accomplished in
roughly two years, at a cost of                                                                           million - a sum that can be raised through a refinancing of
the cooperative’s mortgage. In                                                                            on this course, defendant has taken into consideration
the fact that there is currently only one maker of blue-glazed bricks left in the entire United States,
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and that its Western Pennsylvania factory is soon scheduled to be shut down for several months
for retooling. -Moreover, it is 27’s                                                                    considered opinion that the “replacement” of only
the most damaged blue bricks - which would entail “matching” some                                       bricks in size, shape
and color - would prove more costly and time-consuming than would simply “reskinning” the
entire facing with readily available red bricks.
When Sutton learned of 27‘s plans, it commenced the instant action, and also moved to
enjoin 27 from proceeding with its proposed comprehensive refacing. According to Sutton, a
complete “reskinning” would take at least three years, during which time Sutton’s commercial
tenants would lose business. According to plaintiff, it is well known that “pedestrians, shoppers
and diners [tend to] avoid the area under ... Scaffolding.”  Sutton postulated that such a loss in
revenues could drive Sutton’s commercial tenants out of business, and no new subtenants would
be willing to replace them under the scaffold. Plaintiff goes so far as to conjecture that 27 has
deliberately manufactured the instant situation in order to force Sutton into defaulting so that 27
can appropriate the ground floor lease. Plaintiff further anticipates that defendant will not be able
to acquire enough funds to complete the work, or, in the alternative, that its acquisition of funds
will take an inordinately long time.  Plaintiff protests that it does not want to have to loan
defendant money, as it has been forced to do in the past, to prevent a possible foreclosure by
defendant’s lender and incalculable potential damage to defendant’s leasehold. Plaintiff contends
that by “replacing every brick in the building,” defendant is violating Paragraph 6.1 of 27’s
“Reciprocal Agreement” with Sutton, according to which each tenant could freely undertake
alterations to its portion of the building provided that such alterations “shall not ... diminish the
benefits afforded to [the] other owner ... or interrupt such other Owner’s use of’ its property.
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engineer, Richard Koenigsberg, inspected the facade of the residential building
telescopic lens and photography” on March 28,2002.  It is his impression that less than 20%
of the bricks needed repair or replacing. According to him, such isolated repairs would cost
under $1 million and take less than a year.  Koenigsberg recommends that defendant acquire its
replacement blue glazed bricks from a manufacturer in Loughborough, England. Bricks that have
lost their “tiebacks” can be stabilized by the insertion of quick and inexpensive                        anchor
pins” and similar patching. Generally, Koenigsberg questions whether defendant’s photographs
are not just of the worst sections of the facade rather than representative of the entire building.
He goes on to suggest that the “waviness” of horizontal                                                  apparent in defendant’s
photographs is not the result of brick failure, but rather is an “optical illusion’’ caused by a
“stripped pattern of alternating lighter and darker bands” of blue bricks. He concludes that there
is “absolutely no need to reskin the entire building,” when the replacement and repair of individual
bricks can be done faster and more cheaply.
Plaintiff asks the Court to enjoin defendant from installing                                             and from
undertaking a “reskinning” of the entire building. It requests that this Court direct defendant to
replace only the failed bricks and to repair the less damaged ones, all within 90 days. Defendant
cross-moves to dismiss the complaint.
It is well established that an applicant for injunctive relief must demonstrate (1) the
likelihood of success on the merits, (2) a balancing of the equities in its favor, and (3) irreparable
                                                                                                         injury if the injunction is not granted. See W.T. Grant Co. v. Sroni, 52         496,517 (1981);
Atlantis Worldwide Ltd. v.                                                                               290                                                                        379   Dept. 2002). Plaintiff has not carried its
burden on any of these essential showings.
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The law requires that failing brickwork of the sort at issue here                                      be repaired, and that
for the duration of the repair work a scaffold must be maintained to protect pedestrians from
falling masonry due to either decay or construction. Accordingly, plaintiff has no likelihood of
succeeding on the merits of its application for a permanent injunction against the erection of any
scaffold. The Court notes that, in any event, the scaffold has already been put up, in accordance
with the law, with the result that so much of plaintiffs application as seeks to prevent the
installation of the scaffold in the first instance is moot.
Secondly, the equities weigh in favor of defendant. Balanced against defendant’s concern
for the physical preservation of its property, for the protection of pedestrians and for compliance
with the law are plaintiffs comparatively speculative worries that its commercial subtenants’
revenues might suffer or that defendant may not be able to afford the entire “reskinning.”
Plaintiffs ultimate anxiety is that one or the other of these anticipated shortfalls could cost
plaintiff money at some unspecified date in the future. Clearly, defendant’s real concerns, and
their gravity, outweigh plaintiff’s conjectural and purely monetary apprehensions.
Nor do the equities favor plaintiffs choice of remedy. Aside from the fact that plaintiff
has no authority to dictate how defendant should best repair its leasehold, the evidence in the
record supports defendant’s calculation that a complete “reskinning” of the building in red brick is
the most cost-effective way to correct its current brick-work problems while obviating future
ones. Moreover, it does not appear that it would take much longer, if at all, to redo the entire
exterior than to,                                                                                      replace individual bricks - particularly if the replacements must be
transported  across the Atlantic.
The Court rejects plaintiff‘s expert’s other “patching” recommendations as inadequately
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supported.  Mr. Koenigsberg visited the subject building on only one occasion, and merely
photographed it from afar. He did not take any probes, did not review the results of any probe
tests, did not participate in                                                                                 inspections, did not review the reports of 27’s
consultants, and did not discuss 27’s engineers’ analyses with them. Rather, he has contented
himself with questioning whether the sagging and                                                              along the horizontal brick lines -
which, complete with bulging bricks, are clearly visible in defendant’s photographs - might be due
not to a movement of walls due to a failure of bricks and compression of mortar, but rather to a
harmless optical “illusion” created by alternations of pale and dark bricks. In the context of the
photographs before the Court, such a suggestion is little short of irresponsible - as is Mr.
Koenigsberg’s further proposal that the crumbling glazed  bricks which are not replaced with new
bricks manufactured in England can be simply skewered into place with                                         pins.
Finally, plaintiff has not indicated what “irreparable harm” it would suffer from
defendant’s repairs that would                                                                                a grant of an injunction. Rather, it would seem that any
harm to plaintiff will occur, if at all, at some time in the future, at which point plaintiff may, if it be
so advised, commence a different action against defendant for compensation in the form of
money damages.
Accordingly, it is
ORDERED that plaintiffs motion for a preliminary injunction is denied; and it is further
ORDERED that defendant’s cross-motion to dismiss is granted and the complaint is
dismissed, without prejudice to plaintiffs bringing an action in future if appropriate circumstances
warrant, with costs and disbursements to defendant as taxed by the Clerk of the Court; and it is
further
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ORDERED that the Clerk is directed to enter judgment accordingly.
The foregoing constitutes the
Date: June 25,2002
New York, New York
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