A developer’s lawsuit against the owner of an adjoining property, seeking to enforce requirements of the New York City Administrative Code (Building Code) governing the height of chimneys, has been dismissed as time-barred under the applicable statute of limitations. West Chelsea Building LLC v. Guttman, 2016 N.Y. App. Div. LEXIS 2434, 2016 N.Y. Slip Op. 2548 (1st Dep’t Mar. 31, 2016).

The Building Code requires that if a building has a chimney, the chimney vent must be at least as high as, or in certain cases 20 feet higher than, the height of adjoining structures located within a certain distance from the building. The Code further requires that when construction of a new building, or expansion of an existing building, renders a formerly compliant chimney non-compliant, the owner of the new or expanded building must give 45 days’ notice of the construction to the owner of the affected existing building or buildings, and must offer to alter their existing chimneys to make them compliant.  In essence, the Code seeks to place the burden of extending existing chimneys, so that they satisfy the increased height requirement necessitated by new construction, upon the party benefitting from the new construction.

In this case, the plaintiff owns a 10-story building, served by a chimney and ventilation system located on the roof. Between 2005 and 2007, the defendants increased the height of their adjoining building to 21 stories.  Thus, defendants’ building was now higher than plaintiff’s building, so that plaintiff’s formerly sufficient chimney became too short.  However, the defendants failed to give plaintiff the notice of construction required under the Administrative Code.

Seven years after defendants’ construction was completed, in 2014, plaintiff sued defendants, alleging that they violated the Building Code provisions governing chimneys and seeking to recover the cost of extending plaintiff’s chimney. Defendants moved to dismiss the lawsuit as time-barred under the applicable statute of limitations, which is three years.  Plaintiff responded that the statute of limitations should be “tolled” or extended because defendants had failed to notify them that they were expanding their building, as required by the Code, and hence, they claimed, the statute of limitations never started to run.

The motion court granted the defendants’ motion to dismiss the lawsuit as untimely, and an appellate court has now affirmed that decision. The court held that all the facts giving rise to plaintiff’s claim occurred by January 2007, by which time the work on defendants’ building had been “substantially completed.”  The fact that some related events, such as issuance of updated temporary certificates of occupancy, occurred after 2007 did not change the result.

The court acknowledged plaintiff’s concern that developers will not feel compelled to comply with the notice requirement under the Code unless there are consequences for failure to do so. Nonetheless, the court concluded that “particularly in light of plaintiff’s admission that it was aware of the 21-story adjoining structure in 2007, that defendants’ failure to provide written notice did not relieve plaintiff of the obligation to commence this action within the applicable three-year statute of limitations period.”