TBN in chimney dispute with NYC Co-op

Where There’s No Smoke but Fire: Hidden Chimney Touches Off a Feud

Crux of issue: The chimney is for TBN's boiler, but the chimney is attached to the Co-op.

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Bert Perry's picture

.....not.  Seriously, it strikes me that if TBN hadn't known about this for decades, there are much bigger issues than tuckpointing to deal with.  Does it need to be swept?  Is it lined properly?  Is the boiler even halfway efficient?   Would it be better to replace the brick chimney with a more modern steel flue?  

And they totally blew the chance to handle all of this.  Ouch.

Aspiring to be a stick in the mud.

Mark_Smith's picture

You deduced all of this how? Have you heard or read anything but this piece?

You likely have rushed to judgment my friend...you likely know nothing about the situation if all you know is this news piece.

Bert Perry's picture

Mark_Smith wrote:

You deduced all of this how? Have you heard or read anything but this piece?

You likely have rushed to judgment my friend...you likely know nothing about the situation if all you know is this news piece.

It stems from growing up around Chicago and understanding brickwork and boilers.  Old industrial boilers, while not terribly efficient, easily last a century or more, so the boiler in TBN's building is probably at least that old--might have even been installed with the building, really, and almost certainly burned coal until the EPA came around in the 1970s.  The brickwork's decay suggests it is at least half a century overdue for repairs, and the chimney is probably about a century old, too--the hotel that is now the coop installed it so their guests did not get coal smoke in their rooms when it was built.

Moreover, the building manager's comment about how it would be "unreasonable" to close the chimney indicates they're still using it.  

OK, as a competent facilities administrator, who understands that both sets of building management have just discovered where one building's boiler is venting, what do you do?  Force legal action, or do you thank God that nobody got hurt by falling brick or carbon monoxide from a chimney that hadn't been maintained for decades--and work with the management of the other building to make sure that it is dealt with responsibly?

Aspiring to be a stick in the mud.

Mark_Smith's picture

including your knowledge about TBN's position, you criticized TBN because you know what they said and did. Right?

Oops.

Bert Perry's picture

Mark_Smith wrote:

including your knowledge about TBN's position, you criticized TBN because you know what they said and did. Right?

Oops.

It called a reasonable inference.  There are two ways to handle a sensitive situation like this.  One involves the facilities/engineering team, and the other involves lawyers.  If you have lawyers actively ticking off your neighbors by refusing to pay for repairs to your chimney, one can reasonably infer that the facilities guys are not trying to arrange an amicable agreement that will keep the chimney in place and in good condition.

Aspiring to be a stick in the mud.

Mark_Smith's picture

The property owner is simply lying. How did you rule that out?

Bert Perry's picture

Or maybe not.

Actually, not much opportunity for the co-op to lie to me in this matter.  I'm going mostly from the picture of the chimney prior to repairs and the comments of TBN's counsel and property manager.  

Honestly, it's pretty scary how TBN is handling this.  They've got a property that's 40-50k square feet and probably worth $10-30 million (or more, this is good property in lower Manhattan), a very real risk that their boiler manager's oversight could have resulted in property damage, CO poisoning, or even the death of someone, and they're quibbling over this.  It just boggles the mind, really.

Aspiring to be a stick in the mud.

Mark_Smith's picture

Bert Perry wrote:

I'm going mostly from the picture of the chimney prior to repairs and the comments of TBN's counsel and property manager.  

 

Uhh... the story has no comment by TBN. You don't know their position. All they say is through their counsel that there was a shared chimney that TBN did not authorize work for. The property manager got it repaired, then tried to bill TBN. That's not how it works.

Bert, if your neighbor said you needed to mow your grass, hired a guy to do it, then sent you the bill, would you pay it?

Bert Perry's picture

Mark_Smith wrote:

 

Bert Perry wrote:

 

I'm going mostly from the picture of the chimney prior to repairs and the comments of TBN's counsel and property manager.  

 

 

 

Uhh... the story has no comment by TBN. You don't know their position. All they say is through their counsel that there was a shared chimney that TBN did not authorize work for. The property manager got it repaired, then tried to bill TBN. That's not how it works.

Bert, if your neighbor said you needed to mow your grass, hired a guy to do it, then sent you the bill, would you pay it?

Mark, here are the quotes from the article.  It makes very clear that TBN is doing things through a lawyer, and that they are doing exactly what I say they are doing.  It brings reproach on the cause of Christ to be this stupid.

Trinity’s station manager, Chris Elia Luppo, referred all questions to a lawyer in Washington, who did not return repeated requests for comment. But in correspondence with the board, the broadcaster said it had never agreed to contribute to the cost of the repairs.

“We are at a loss to understand the basis for your demand that Trinity pay for chimney repairs,” the network’s general counsel, J. B. Casoria, wrote in a letter to Mr. Barkoff on April 14. “The mere fact that Trinity shares the chimney with you” is irrelevant, Mr. Casoria wrote, adding that “Trinity never agreed to be liable for these repairs.”

Or, as Ms. Luppo, put it in an email to the co-op in September, “If you authorize work, you pay for it.”

In an email to the co-op’s managing agent, Ms. Luppo, the station manager, bridled at that suggestion, saying, “You are completely unreasonable.”

Aspiring to be a stick in the mud.

Rob Fall's picture

New York law works.  All I know is in California, my neighboring (I have four) property owners and I share 50-50 in replacing our mutual fences.  If need be, I assume I can go to small claims court if a fence falls into such disrepair that it needs to be replaced and I can not reach an agreement with the neighbor.  So, far, we've replace three out of the four fences.

Hoping to shed more light than heat..

Mark_Smith's picture

Exactly. TBN's response to the story writer was "no comment"...so you know nothing from their side. That is the WHOLE POINT. Got it? You know nothing other than what one person in a 2-sided disagreement said. 

Now, apparently you have let your theological disagreement with TBN confuse you here and ASSUME the worst for TBN.

AndyE's picture

I don’t know how NY law works, either; but it seems to me that the Co-op is likely to be completely responsible for the chimney repairs.  From what I can tell from the article, TBN’s building was built first and then the Co-op building.  All this happened over 100 yrs ago so there is no telling what agreements may have been reached between the two parties at the time but it seems reasonable to me that that the newer and taller building had to take on the cost to extend the chimney of the other building as a stipulation for building a taller structure next door. That is why the chimney is attached to the Co-op, even though it services the TBN building. If that is the case, then going forward the newer Co-op building is going to have to take on the on-going repairs of that chimney as well.  I suspect, therefore, that TBN is in the right here and that the Co-op doesn’t understand their historical requirements concerning the chimney.

M. Osborne's picture

I work in real estate title, so this story interested me.

Without reading the whole story, I thought perhaps the TBN building enjoyed an easement for a chimney attached to the neighboring building, which would likely mean that TBN would have to maintain it (e.g., if you have an ingress/egress easement across your neighbor's land, you're responsible for any plowing/shoveling costs).

But if the current building code reflects anything about what was the case 100+ years ago, then the later, taller building places a burden on the earlier, shorter building, to have a higher chimney for safety reasons. In that case, it would be the owner of the taller building's responsibility to fund and maintain any mitigating mechanisms. (For instance, with zoning cases, a noisy restaurant or recreation establishment may need to construct a visual/sound barrier for the sake of the neighbors.)

The difficulty is that there are a lot of different factors that will need to be considered to decide this case (and really any particular case):

  1. NY statute.
  2. NY common law (probably more important than anything statutory).
  3. NYC regulations (zoning, environmental, building code).
  4. The specifics of these two properties (should be recorded in the land records...unfortunately ACRIS, the online real estate records, don't go back 100+ years! Nor do the online building records.). If there are formal easement agreements, those should be recorded for public record. But even then, a lot of easements don't make it to public record for one reason or another. But there may be some records sitting somewhere that would help.

All that to say, the obvious facts about who uses the chimney and where it's located don't in and of themselves decide how the maintenance costs fall out.

Michael Osborne
Philadelphia, PA

Bert Perry's picture

Mark_Smith wrote:

Exactly. TBN's response to the story writer was "no comment"...so you know nothing from their side. That is the WHOLE POINT. Got it? You know nothing other than what one person in a 2-sided disagreement said. 

Now, apparently you have let your theological disagreement with TBN confuse you here and ASSUME the worst for TBN.

No, Mark, the article states clearly that questions by journalists were sent to TBN's lawyers, who are refusing to talk.  That backs my contentions.  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.  Huge missed opportunity for TBN to witness to their neighbors here by taking a decrepit chimney they appear to have been using seriously.

Regarding who ought to pay, in a facility the size of TBN's, I think there is a strong implicit argument that TBN is on the hook here.  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.  So to have heat in the winter, you've got to do what it takes to maintain that chimney, or else any ethical boilerman (the only kind you want) is going to resign and report your chimney to code enforcement, and you're going to freeze your pipes in the winter.

Or else you get a boilerman who doesn't give a rip, and you get a few dozen people in your building or theirs with CO poisoning, or killed by bricks, and then you REALLY watch the billable hours fly.  So I can see TBN arguing that they would like to split the difference--"the height of the chimney derives from the code requiring us to keep the CO out of your facility, can we split the cost for that reason?", but I can't see why they're doing everything through lawyers.  They are going to end up spending far more on billable hours than they would have simply to get their flue cared for.

Aspiring to be a stick in the mud.

Mark_Smith's picture

What are you talking about Bert? You are over in left field talking about unethical boilermen! What does that have to do with this article that includes no direct quote from a TBN representative. Bert, admit it. You have one side of a story and have jumped to conclusions based off of your bias and experience. you know nothing about what happened between TBN and this co-op owner because you only have one side of the story. You say TBN is hiding...well, why should they talk to the media about it? It is quite frankly none of our business.

M. Osborne's picture

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.

Michael Osborne
Philadelphia, PA

Bert Perry's picture

M. Osborne wrote:

 

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."

Aspiring to be a stick in the mud.

Jim's picture

Maybe it's because of their 3rd jet? 

 

TBN Purchases Third Jet

Trinity Broadcasting Network (TBN) recently purchased its third jet, according to a search of the Federal Aviation Administration database. The Bombardier Challenger (model CL-600-2B16) business jet was registered on May 16, 2014. TBN's other jets are a Hawker 800XP and Bombardier Global Express (model BD-700-1A10). All three jets are registered in the name of TBN's affiliate Trinity Broadcasting of Florida Inc. TBN's jets have been a source of controversy. In a lawsuit filed against TBN in 2012, Joseph McVeigh alleged that TBN's Global Express jet was "purchased for the personal use of the Crouches through a sham loan to an alter ego corporation set up by the directors of Trinity Broadcasting in Florida" and the Hawker jet was purchased "for the personal use of director Janice Crouch."

Bombardier Challenger 600 series: Unit cost approximately US$25 million

Larry's picture

Moderator

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. 

Bert Perry's picture

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.  :^)

Aspiring to be a stick in the mud.

Mark_Smith's picture

Bert Perry wrote:

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.

Bert Perry's picture

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.

Aspiring to be a stick in the mud.

Larry's picture

Moderator

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.

M. Osborne's picture

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.

Michael Osborne
Philadelphia, PA

Bert Perry's picture

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.

Aspiring to be a stick in the mud.

Larry's picture

Moderator

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." 

Bert Perry's picture

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.

Aspiring to be a stick in the mud.