2006-01-27 / Columnists

It’s My Turn

By Irene Brunstein, Esq.


Is it any wonder there is no respect for the Courts. Yes, we got a couple of scapegoats, the Garson boys from Brooklyn, but that’s not even the tip of the iceberg. Abuse in the Court system is rampant and is taken as a matter of course. After the events of yesterday, I discussed this case with several lawyers, who were all of the opinion I was living in “la la” land if I thought the events were anything out of the ordinary; the usual and customary business practices in the Courts.

Yesterday’s case involved an elderly man who put his life savings into the purchase of his first home. Ten years later a developer levels the adjacent lot, excavates a 12-foot hole, and builds a multi-story building, using the man’s house for support and underpinning. Although a judge in September had placed a stop work order on the building, all of a sudden there was a new judge yesterday, and a builder who wouldn’t sit down to the table to talk resolution. In fact, the builder was told by his lawyer there would be no settlement, and left the Courthouse before proceedings began to continue the stop work order and repair the immediate damage.

Despite reports from the homeowner’s hired engineer, the insurance company engineer (by the way, there was no insurance to cover this) and the prior judge’s appointed independent engineer’s report, all attesting to the continued escalating danger, and need for immediate repairs, the “new” judge demanded that the attorneys “get on with the case” and turned a deaf ear and a blind eye to the reports and annexed photos depicting collapse. It is unlikely the new judge even read the briefs on the case, having been transferred. The new judge did read a report from the builder’s engineer who did not see the nine foot deep, three foot wide hole where the buildings met only inches apart from each other, nor the collapse of the eastern wall of the homeowner’s property, nor the shifting of windows, nor the movement of the floor joists nor the multiple full building length cracking inside and out, but he found minor cracking from temperature changes, pre-existing, and not due to construction. But the judge didn’t see it either as he would not look at the photos.

Instead of protecting the damaged homeowner and the public at large from this nuisance, the new judge allowed the builder to immediately resume construction. Contrary to law, the new judge ignored the builder’s permit requirements that he comply with the administrative code and provide underpinning and structural support, a public safety law for which the legislature has imposed strict liability upon the builder. Without hesitation, the new judge went on and lifted the stop work order after five to seven minutes of argument, when he “had enough.”

There’s a doctrine in law called “unclean hands.” Supposedly, when you come to court, you will not be favored with a good result when you have violated the law, in this case, a law intended for public safety (Admin. Code 27-1032). The continuing public danger and nuisance to the neighborhood of having this structure sink a little bit more each day, causes us to reflect on whether if the builder is the only one with unclean hands.You might say that’s what appellate Courts are for, but often continuing a court case requires thousands of dollars, something the builder can well afford, but the homeowner cannot.

My courthouse friends tell me I’m a dreamer. I guess so, when someone puts on the robes, it should mean something to them. These truths should be self-evident…

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