TBN in chimney dispute with NYC Co-op

[Bert Perry]

The reason is simple; a facility that size needs a licensed boilerman to operate their boiler (heat & hot water), and the boilerman will lose his license if the boiler is not properly vented.

The boiler inspection reports are available online. Bert, in your experience, would a boiler inspection include an inspection of the venting? These reports go back to the 90s, we’ll before TBN took title to the theater building.

I’m wondering if safe venting and safe brickwork are two separate issues. The safe brickwork question appears to be new: the article states, “The chimney was first uncovered beneath an inch of stucco during routine maintenance a year ago.” The question of proper venting doesn’t come up in the article.

[M. Osborne]

Bert Perry wrote:

The reason is simple; a facility that size needs a licensed boilerman to operate their boiler (heat & hot water), and the boilerman will lose his license if the boiler is not properly vented.

The boiler inspection reports are available online. Bert, in your experience, would a boiler inspection include an inspection of the venting? These reports go back to the 90s, we’ll before TBN took title to the theater building.

I’m wondering if safe venting and safe brickwork are two separate issues. The safe brickwork question appears to be new: the article states, “The chimney was first uncovered beneath an inch of stucco during routine maintenance a year ago.” The question of proper venting doesn’t come up in the article.

Yes, venting is on the inspection criteria, and for a century old smokestack, the brickwork IS the venting structure, so safe venting is by definition safe brickwork—with high temperature mortar—in this case. It protects the rest of the building from the heat of the exhaust air, keeps the carbon monoxide and smoke out of the building, and so on. It may be an ignored part of inspection sometimes, but it’s there.

(for reference, most smoky fireplaces, and a fair amount of house fires, result from improper venting—so it is clear that some inspectors do neglect this part of building codes.)

It’s not a completely academic issue for me, as my dad actually left a job when he realized that management wasn’t going to fix a venting problem he’d identified with their boiler, and that they’d been putting up with it for 30 years—he met one of the guys who’d installed it at his high school reunion, and it had had the same problem then. The plant has closed for this and other reasons.

That’s also why I’m coming down hard on TBN for how they’re handling this—you don’t have to spill your guts to the Times, but at least have someone who has actually been in the building in the past year say something like “we are very glad that the neglect of this chimney didn’t get someone hurt, and we are working with our insurance company, TBN, the co-op, and city code inspectors to reduce the likelihood that it happens again.” It’s really part of the “Leaden PR Hall of Shame.”

If you are talking through lawyers, you are not trying to resolve the issues of that chimney through those who know how chimneys ought to operate.

I imagine they are talking through lawyers because this is a legal situation, and lawyers are usually how legal situations get resolved. I am not sure why that is a problem? If you don’t know the answer, it seems wise to let those who do know, answer.

Huge missed opportunity for TBN to witness to their neighbors here by taking a decrepit chimney they appear to have been using seriously.

So randomly paying bills presented to you is now witnessing for Christ? Assuming that the TBN crowd is witnessing for Christ, what is it about paying this bill that helps that? If there is a dispute about who is to pay it, then let that be figured out. Christians, nor anyone else, are under any obligation to pay bills simply because they are presented. It’s entirely proper to pay your bills, but not necessary to pay other people’s bills.

If you believe as you say here, send me your address because I have a few bills I would like to send your way, you know, for the testimony of Christ and all.

Larry, there is nothing random about this bill. It is for a chimney they are using that has been found to be deeply degraded and posing a risk to those in both buildings and those around them, not to mention TBN’s building itself. And it is not strictly speaking a legal issue because any decent lawyer knows that the billable hours from litigating this would far exceed the cost.

As a quality engineer, I’ve handled situations like this, and suffice it to say that lawyers only get involved when the numbers get orders of magnitude bigger or it is believed one party is acting in bad faith. I also can note that the quickest way to calm down an angry QE on the other side of the phone line is to admit that your company’s product does have a defect, and you’d like the chance to fix it. Denying the obvious and filibustering always makes the problem worse. Always, and that’s what TBN is doing here.

On the light side, Jim’s comment about the new jet for TBN reminds me of Warren Buffett’s warning not to buy stock in companies that own aircraft. :^)

[Bert Perry]

Larry, there is nothing random about this bill. It is for a chimney they are using that has been found to be deeply degraded and posing a risk to those in both buildings and those around them, not to mention TBN’s building itself. And it is not strictly speaking a legal issue because any decent lawyer knows that the billable hours from litigating this would far exceed the cost.

Bert, you don’t know this to be true. You have only heard one side of this story. Can’t you admit that? You are making a ton of assumptions based off of the news report and assuming that TBN is ignoring this when you don’t know that to be true.

No, Mark, it’s not one sided, because the article makes very clear that the co-op president showed documents from TBN with readily identifiable letterhead and email addresses. The Times is quoting this documents, which means that they saw them and verified with reasonable certainty that they were genuine. They establish a timeline which makes it clear that TBN was “running out the clock” and trying to get their new chimney for free, which they appear to have done.

For that matter, the Times also contacted the phone numbers on those documents for comment, and then clearly received a stonewall from TBN. So the context of the article makes pretty clear that the reporter saw the documents, and that they were genuine.

Moreover, if someone had decided to falsify those documents,the co-op association is risking their entire building plus punitive damages for libel over a puny twenty grand. Sorry, I don’t believe that the co-op president, a realtor who can run into legal trouble any day with a false (or even just “disputable”) statement on a real estate legal form, is going to be that dumb.

Reality here, Mark, is that both sides have presented their side of the issue, and it just happens that TBN were complete jerks about what should have been a great way to maintain and improve their physical plant. And that’s a shame.

Bert, I assume you either (1) didn’t read the article or (2) know more than the people in NYC responsible for these things. The article quotes a city commissioner of the building department who says it the facNts of this case make it harder to say who is responsible. How do you know more than he does? What is your experience in the NYC building department and building codes, and your expertise in the legal history of the transfer of these buildings that enables you to make such a dogmatic declaration? Don’t you think if it was that clear, the lawyer would be saying that?

I am not sure how your experience as a quality engineer is helpful here. It’s not a question of quality but of responsibility. There may be guidance concerning this in title transfers, in case law, or other things. The article simply doesn’t say, and unless you have expertise in NYC building issues, how would you know?

…suffice it to say that lawyers only get involved when the numbers get orders of magnitude bigger or it is believed one party is acting in bad faith.

Perhaps the co-op is operating in bad faith, hoping that TBN doesn’t know the law, or doesn’t know their responsibility and will pay it without asking. Or maybe TBN doesn’t know and they are trying to find out. Why assume the worst when you don’t know?

I also can note that the quickest way to calm down an angry QE on the other side of the phone line is to admit that your company’s product does have a defect, and you’d like the chance to fix it.

If you product has a defect, that’s great advice. Irrelevant here, but good advice for when it applies.

Bert, you’re assuming that TBN is hiring lawyers with a view to fighting it. Lawyers can also advise you as to what your rights and obligations are if what you want is a straight answer. If the answer to who is obligated to maintain the chimney lies in some doc 100+ years old, a lawyer can send an abstractor down to to the land records office to collect the pertinent docs, then take an hour to review them. That kind of stuff is hard to be 100% certain of on one’s own reading.

An anecdote: years ago, the City of Omaha demanded that our church dedicate the north 10 feet of our property as a condition for a zoning change (we were expanding the parking lot). I asked if we’d be compensated (5th amendment rights re: eminent domain and just compensation and all that). We were told it was city policy to take some land in cases like ours. I suspected that was bologna, went and gathered our church documents from the register of deeds, researched court cases like Simpson v. North Platte and Dolan v. Tigard and a few others, realized that the city was probably wrong. We got a recommendation for a local real estate attorney, turned over the docs and my research to him and asked him to weigh in and confirm or set us straight. He agreed with us and sent a well-crafted letter to the city. The city backed down. But the lawyer’s strategy throughout was to avoid litigation if at all possible.

From our perspective, the value of hiring the lawyer was to get at the truth. If he had told us, “Sorry, the city has a point that the 5th amendment doesn’t actually apply here,” we’d have cooperated with the city.

I have no idea what is motivating the current owners. I’m willing to presume good faith on both sides. But with real estate law, the parties’ motivations, as well as their financial situations, are irrelevant. They are reduced to “Owner of Property A” and “Owner of Property B.” If this were somebody’s granny the co-op was going after, the narrative and perception could be very different all round, but still irrelevant.

Larry, M. Osborne, you’re thinking the wrong side of the law. While yes, lawyers can be useful in determining what is obligatory, TBN has had months to figure this one out. Sorry, that’s not what they’re doing, and if they’re spending months of billable hours to avoid twenty grand in bills, they are idiots, plain and simple.

What is applicable here is that the property DID have a serious defect in that the chimney was just about to fall right off the building. Now, if I’m a tort lawyer and I’ve got a client hurt by CO or a falling brick, I can taste my portion of the award when someone tells me that they spent months dickering over a repair of a twenty million dollar building that could have been repaired for twenty grand. See what I’m getting at here? You want to be on the witness stand as a lawyer asks you if you knew about the problem (you did), whether you knew of its seriousness (you were told, he’s got the documents), and whether you did anything (you chose not to)?

One can argue city codes and land transfers and obligations until they’re blue in the face, but that doesn’t change the fact that the tort lawyer is going to smell blood with idiocy like this. You’ve got a chimney you’re using that could injure or kill someone? You pull out the stops to fix it and sort out who pays as you go.

I am “thinking on the wrong side of the law”? I don’t even know what the law says. And I imagine you don’t either. That is my point. At least you haven’t cited any law or codes yet. Rob did when he told us how this stuff is handled where he lives. That would be helpful here. I can very well imagine a situation in which the building who makes the higher chimney necessary is the building who is responsible for its maintenance, even though it doesn’t use the chimney. That would make sense.

The building has been fixed. The question is over who is responsible. Unless you know city codes, city laws, and building transfer issues, then you simply don’t know. If it was as simple as you say, I imagine it would have never made the paper, and the lawyer would have said “Pay it.”

Larry, the point here is that the minutiae of city codes, NYC common law, and the like really don’t matter here. For that matter, it’s doubtful that TBN knows what these say, either. Think about it; if the law clearly was on their side in the dispute, and they knew it, wouldn’t they be saying it? Would you expect a corporation’s chief counsel based in the District of Columbia to know the ins and outs of NYC real estate easements? I sure wouldn’t. So the fact of the matter is that unless TBN has found out there were liable and aren’t sharing that information, they probably know very little about the relevant law in that regard.

So we are left here to trust the Times’ sources, and the NYC codes and such appear vague to them. OK, but that is not the end of the story.

The end of the story is that any smart administrator of any enterprise understands a little about tort law. In a nutshell, it means that if your organization (family, individual) has a hazard associated with them and someone gets hurt, courts can find you liable. You don’t even have to know about it, but if you know about it and do nothing, or actively evade the problem, it will be ugly in court.

In this case, TBN had a known set of hazards and the documentation presented makes clear they were “running out the clock” instead of doing due diligence. In this case, they lucked out—nobody got hurt and nobody is getting sued. But in the future, management has sent a very clear message to their employees; their unwritten policy is to avoid real issues.

If you want to sign up for huge punitive damages when things really do go wrong (and they will at some point), you can do little better than what TBN is doing here. They’re really playing with fire, and I’d be surprised if their counsel hasn’t told them this—but keep in mind that what the lawyer says in public will be precisely his client’s position. This may be why the calls were not returned, by the way.

A parallel note for those who are administering churches, camps, and the like; this means that when it comes to safety hazards and the protection of children from predators, you don’t just do what the law requires, but rather actively seek out risks and mitigate them. A pastor/worker does not need to be a mandatory reporter to report known abuse; a church does not need to wait for the state to require background checks before implementing them. You don’t wait for the town fire marshal to make a demand before you make sure fire hazards are mitigated, exits are cleared, and the like.