The New York State Office of the Attorney General recently reported a $1.3 million settlement with a multiple residence owner for failures to comply with applicable handicap requirements in its multiple dwelling project.
There are various not-for-profit organizations devoted to protecting the rights of handicapped individuals to find proper housing. These organizations aggressively seek enforcement of applicable code requirements. They send people to multiple residence properties and, based on their findings, then alert the Attorney General’s Office to alleged non-compliance. The Attorney General undertakes to enforce the applicable code requirements, seeking remediation, penalties and commitments for affirmative actions.
The legal responsibility of the owner is non-delegable. A owner cannot seek indemnification and hold harmless from the engineers or architects that the owner engaged to prepare plans and supervise construction, presumably in compliance with the applicable handicap requirements. Insurance carriers for these professionals will succeed in defending against claims brought by the owner for violation of requirements. The Attorney General will not have its action against the owner diverted by enforcement against the professionals.
This enforcement proceeding by the Attorney General is increasing and will be a major effort for the foreseeable future. Contracts between property owners and their professional consultants need to be carefully drafted so as to preserve the few exceptions and windows for indemnification and hold harmless claims that can be asserted. Further, if the property owner becomes aware that it is an object of an enforcement investigation, the owner should immediately seek legal advice on how to deal with this situation. Knowledgeable representation is critical to an acceptable conclusion and remediation plan.
We have had the opportunity to represent owners under these circumstances and we have been successful in protecting the rights of owners. Of course, past results can be no guarantee of future performance since each situation is very fact dependent. A key is to engage professional advice at the earliest possible time.
Gerald N. Jacobowitz is a Senior Partner and practices Business and Estate law. He can be reached by phone at 866-303-9595 toll free or 845-764-9565 and by email.
