People v Lewin
Annotate this CaseDecided on May 31, 2005
Justice Court of Village of Tuckahoe, Westchester County
PEOPLE OF THE STATE OF NEW YORK, Plaintiff,
against
Bronia Lewin AND BORIS LEWIN, Defendants.
1065
Plaintiff: Gary Gjertsen, Deputy Village Attorney
Defendants: Pro Se
Michael P. O'Toole, J.
STATEMENT OF THE CASE
Defendants Bronia and Boris Lewin are the fee owners of a one-family dwelling at 23 Verdi Avenue in the village of Tuckahoe, New York. Defendants were issued Appearance Tickets (Nos. 1065 and 1066) on December 28, 2004 by William Williams, Jr., Building Inspector for the Plaintiff Village of Tuckahoe, alleging violations of §§6-37 and 6-8(b) of the Tuckahoe Village Code for failure to obtain a required building permit before beginning roof replacement work and for removing a stop work order that had been placed on a window on the Defendants' garage door by the Building Inspector.
Trial was held on April 26, 2005 in the Village of Tuckahoe Justice Court before Acting Village Justice Michael P. O'Toole. Plaintiff was represented by Deputy Village Attorney Gary Gjertsen, while Defendants represented themselves. Testimony was offered by Building Inspector William Williams, Jr. and Defendants Bronia and Boris Lewin.
FINDINGS OF FACT
In the fall of 2004, the Defendants noticed that there was a water leak in the kitchen that seemed [*2]to be coming from somewhere near a skylight. They were worried because the water was coming down a wall in the kitchen containing an electrical outlet. There was also a leak in the living room. They called Mr.Rocco DiNardo, who came to their home to assess the leaks and the work that would be needed to fix them. Mr. DiNardo determined that, in addition to the area near the skylight where the leak was coming from, the entire roof needed to be replaced. The Defendant then hired Mr. DiNardo to perform the roof replacement work before heavier winter weather could exacerbate the situation.
Mr. Williams was performing building inspections on the morning of December 17, 2004, and as of his return to his office at 1:30 pm, no building permit applications had been filed on that day. Upon his return to his office, Mr. Williams received a phone call from a village resident asking if there was a building permit on file for work being done at the Defendants' residence.
At approximately 1:45 pm, Mr. Williams arrived at the Defendants' residence and observed three men working on the roof of the residence. They were removing roof shingles and putting tar paper across the front part of the roof. Because the Defendants were not home at the time and the workers spoke only Spanish, Mr. Williams phoned the Village of Tuckahoe police department and asked that a Spanish-speaking officer be sent to the Defendants' residence to help him converse with the workers.
When a Spanish-speaking officer arrived, Mr. Williams determined that the workers were employed by USA Roofing, whose owner is Rocco DiNardo. Mr. Williams phoned Mr. DiNardo, and when Mr. DiNardo arrived at the Defendants' residence, Mr. Williams told him that the required permit for the work had not been obtained and ordered that the work on the roof be stopped, other than to clean up and secure the premises. Both Mr. DiNardo and the Defendants were issued violations for performing work without a required building permit in violation of Tuckahoe Village Code §6-37. Mr. Williams also affixed a "peel and stick" sticker to a window of Defendants' garage door on which he wrote "Stop Work." Said stickers are commonly used by the Tuckahoe Building Department to show when work being performed at a premises in the village has not been approved by the department. A stop work order was also mailed to the Defendants at their residence.
On that same day, Mr. Lewin met Mr. DiNardo at the Defendants' residence after Mr. Williams had seen the roof work being done and issued a stop work order, and Mr. DiNardo told Mr. Lewin that he had attempted to obtain a building permit at some point during that morning, but that Mr. Williams was not in his office at the time.
On December 20, 2004, Mr. Williams returned to the Defendants' residence and saw no sticker on the garage window. Despite conflicting testimony from Mr. and Mrs. Lewin as to who removed the sticker, the court finds that the sticker was removed by Mr. Lewin. Soon after, Mr. Lewin and Mr. DiNardo went to Mr. Williams' office to obtain a building permit, but Mr. DiNardo no longer was the holder of a valid Westchester County license to perform such work, and no permit was issued.
[*3]
On December 23, 2004, the Defendants did obtain a building permit for the work they needed done on their roof, which they wanted done before a predicted snow storm arrived in a few days, and their new contractor was Antonio Massa Company. The new contractor completed the work without further incident.
On December 28, 2004, the Defendants were issued the Appearance Tickets that are the subject of this action.
ISSUES FOR DECISION
Mr. Williams issued Appearance Ticket No. 1066 to the Defendants for allegedly violating Tuckahoe Village Code §6-37, which reads as follows:
No person shall commence the erection, construction, enlargement, alteration, removal, improvement, demolition, conversion, or change in the nature of the occupancy of any building or structure, or cause the same to be done, without first obtaining a separate building permit from the Building Inspector for each such building or structure; except that no building permit shall be required for the performance of ordinary repairs which are not structural in nature.
Mr. Williams charged that the Defendants violated §6-37 by failing to obtain a building permit before their contractor, Mr. DiNardo, began replacing the roof shingles on their residence, which is in the nature of a structural repair rather than an ordinary repair.
Mr. Williams issued Appearance Ticket No. 1065 to the Defendants for allegedly violating Tuckahoe Village Code §§6-8(b), which reads as follows:
Any person who shall fail to comply with a written order of the Building Inspector within the time fixed for compliance therewith, and any owner, builder, architect, tenant, contractor, subcontractor, construction superintendent, or their agents, or any other person taking part of assisting in the construction or use of any building who shall knowingly violate any of the applicable provisions of this chapter or any lawful order, notice, directive, permit, or certificate of the Building Inspector made thereunder shall be punishable as prescribed in §1-7.
Mr. Williams charged that the Defendants violated §6-8(b) by removing the sticker he had affixed to the garage door of their residence on which he had written "Stop Work."
Defendants argue that they did not violate §6-37 of the Tuckahoe Village Code because replacement of the roof shingles alone, without removing the plywood underneath, is not a structural repair for which a building permit is required. Defendants also argue that, because they did not need a building permit, the stop work order issued by the Building Inspector had no legal [*4]effect and its removal could not violate §6-8(b) of the Tuckahoe Village Code.
CONCLUSIONS OF LAW
The court finds that the removal and replacement of all the old layers of roof shingles and tar paper over the entire roof, down to the plywood, do not constitute "ordinary repairs" as that term is used in Tuckahoe Village Code §6-37 and that the work performed herein required a building permit to be obtained before the work was started. The term "ordinary" means something that is "common, usual, established, regular, often recurring" (21 American and English Encyclopedia of Law (2d Ed.) at page 1005), or "customary; usual; regular; normal" (Webster's New World Dictionary (1988 Ed.) at page 953), and the replacement of an entire roof down to the plywood underneath cannot be considered an ordinary repair.
While not necessarily directly on point, Syracuse Malleable Iron Works v. Travelers' Insurance Company, 94 Misc. 411, 157 N.Y.S. 572, and cases cited therein make it clear that there is a distinction between ordinary repairs that are regularly required for the upkeep of a building and necessary or incidental repairs that are occasionally required to be made "to restore or keep the building in proper condition."
The court also finds that the valid, written stop work order that Mr. Williams had affixed to the Defendants' garage was removed by Defendant Mr. Lewin in violation of Tuckahoe Village Code §6-8(b).
JUDGMENT
The court finds that Defendants violated Tuckahoe Village Code §6-37 by not obtaining a building permit before their contractor began replacing the roof shingles on their residence and fines the defendants $100 for the one day of the violation. The Defendants stopped work that day and did not resume until the proper permit had been obtained.
The court finds that the Defendants violated Tuckahoe Village Code §6-8(b) by removing the sticker noting the stop work order issued by Mr. Williams and fines the defendants $250 for the one day of the violation. Because there was no evidence presented by Mr. Williams that the sticker containing the stop work order was removed any earlier than December 20, when Mr. Williams returned to Defendants' residence and noticed the absence of the sticker on the garage door, the court cannot determine that the violation had been committed on any previous day.
Judgment issued this _____ day of _____, 2005.
______________________________________
Michael P. O'Toole
[*5]
Acting Village Justice
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