Window guard inspections urged.

It's not the window guard notification season but the child falling season. Last week, two children fell out of windows, with one miraculously surviving after bouncing off the family car.

The other child, a Brooklyn resident who died, was able to climb over the window guard because the window was not properly stopped, so the actual opening was much larger than the 4.5 inches allowed by law.

That's one reason owners may want to take a second look at their buildings to ensure a resident child doesn't become the next statistic.

When the temperature goes up, so do windows, and without properly installed window guards and stops, children manage to find a way to fall out.

The surviving Queens child was bouncing on a bed when he bounced through the second story closed window of the private home. The car parked below in the driveway broke the child's fall, and luckily it was the car that appeared to suffer the most damage with a broken windshield.

Although not required by law to be installed in two-family private homes, window guards are a good safety feature.

"We urge people who live in one- and two-family homes to put them in because even a fall from the first floor can kill a child," said Department of Health spokesperson Fredric Winters.

At this time of year, while not required by law, Winters says it wouldn't be a bad idea for owners to at least make a visual inspection of the building to determine if window guards that had been installed are still in place.

Even better would be a closer examination to make sure they are still firmly affixed, he advised.

"It's against the law for the tenants to take out the window guards and stops, and against the law for the tenants not to let them into the apartment to check," explained Winters.

Attorney Edward T. Braverman, senior partner of Braverman & Associates, says along with the window guard notification requirements, an owner needs to worry about tort liability.

"As an owner, you have a duty and responsibility to have your building in a proper state of repair," Braverman said. "So if someone got hurt, you would be responsible."

He agrees that owners should check at least once a year "to make sure the guards are in place and fashioned appropriately."

Braverman noted that in the Spring, nearly every building with a central air conditioner sends someone up to check that the condensate line is cleaned out so as to avoid floods. "If you are doing that, to prevent that kind of liability, why shouldn't you check the window guards?" he argued.

The law only requires that window guard notices must be sent out either with January rent bills or between January 1st and January 15th each year, or within 30 days of a now occupant taking possession of an apartment. They are very precisely worded in both Spanish and English and they inform the tenant of the obligation to install window guards. A shorter version is required to be sent out with renewal leases.

The tenant or shareholder must sign and date the form responding to whether or not there is a child aged 10 years or younger residing in the apartment.

If by March 1st the board or owner has not been able to obtain access to install window guards, they must notify the Department of Health, requesting assistance for their installation.

Paula Savarese, project coordinator for Window Falls Prevention, says she will write to the tenant explaining some of the consequences.

"A tenant cannot refuse an owner, but practically, you cannot free a tenant," said Savarese. In a co-op or condo, however, the boards can pass on the fine to the unit owner.

Savarese says the letter will aid in the owner's defense when and if they appear at the Health Department Administrative Tribunal.

"The owner can also take the tenant to court or report them to Special Services for child abuse," she said.

But if there are no window guards and an owner has refused to provide them, the owner will receive a violation, said Winters.

Not installing a window guard carries a civil penalty of a minimum of $100, and not more than $500 per violation. It can also result in a criminal misdemeanor that carries with it upon conviction up to a $500 fine and/or up to six months in jail.

When a child falls out of a multiple dwelling consisting of three or more apartments, a warning is sent and then a violation can be issued. Housing Preservation & Development (HPD) is also notified and immediately sends over Emergency Repair. If the accident is fatal, the City's Corporation Counsel is also notified.

Recently, photos of Madonna's baby Lourdes and her nanny revealed that no window guards were visible on their Central Park West co-op apartment windows. Within days, window guards were installed.

"Madonna was great publicity for us because no one had to get hurt," said Winters of the photos.

Even co-ops and condominium boards need to ensure window guards are installed where a child under 10 years of age resides.

Since a 1984 court decision, condominium unit owners are technically responsible for installing their own window guards. But most boards nowadays ensure that common area windows have guards and have the managing agents send out the notifications.

Cooperatives are treated as multiple dwellings, so the board of directors has that responsibility, usually asking the managing agents to send out the annual window guard notifications in January.

Anyone, including grandparents or caregivers, may request that window guards be installed, and the building owner can charge up to $10 to install a window guard.

Some boards bill the shareholders separately; others just absorb the cost as part of overall building costs.

Stops also need to be installed so the opening above the window guard is not large enough to allow a five-inch sphere through, and the space should measure an no more than 4.5 inches. Additionally, the law requires the guard to withstand 150 lbs. of pressure.

"We also have guards for casement windows and approved guards and stops for sliding windows," said Savarese. The only exception would be if there is a "tilt and turn" window that can't have a guard. "Then we could give them a variance and we send an inspector to check, but every two years the variance has to be renewed by the Window Guard Policy Board."

If an air conditioner is permanently installed and stops are put in, that is also now permitted.

But window guards may not be installed on windows providing access to fire escapes.

Getting the tenants to understand the safety issues is often difficult, and the Department of Health is making efforts to also educate people that are not required to have them, such as caregivers and grandparents.

"Grandparents are a big problem," said Savarese, because they come up with all kinds of excuses as to why they don't need the guards, even though their young relatives are frequent visitors.

A grant has helped the Department publicize the need for window guards at senior centers, and a new brochure will eventually be sent home with all city school children.

In 1996, there were 32 falls, and 21 of them were preventable. Of those, there were five deaths, but only two could have been prevented. In 1995, there were 46 falls.

By comparison, statistics collected before the law was enacted in 1976 showed that in 1973 there were 192 falls and 32 deaths.

"In 20 years, we've made a lot of progress," said Savarese.