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Window guards: who is liable?

The amazing survival of a five year old boy who fell out his sixth floor co-op bedroom window last month highlights the issue of window guards once again. While this boy has lived to tell the tale, last year alone, of the 22 children who had falls that would have been preventable had window guards been installed, five died.

Richard Siegler, a partner with Stroock, Stroock & Lavan said the law is crystal clear.

Because this particular building at 330 East 79th Street is a co-op and under city rules co-ops are treated as multi-family residential buildings, the board of directors acts as owner and is required to send out annual notices and supply window guards to anyone who requests them. Mary Ann Rothman, executive director of the Council of New York Cooperatives, explained if a violation is placed on the building it would be joint responsibility. "A co-op has the full gamut of responsibilities that any other owner has," she said.

Since a 1984 court decision, condominium unit owners are technically responsible for installing their own window guards, while the Board of Managers is responsible for only "public hallways."

David Brimlow, an account executive with Taranto Management, noted, however, that "In a condo, the responsibility could lie with the unit owner, but it's in the board's best interest to get it done." If an accident happens, he observed, they will sue the condominium and the managing agent. Many managing agents send out the notices and provide the follow-up for the boards.

"The way boards and management have exercised their prerogatives is that they provide [window guards] in halls and apartments as well," agreed Charlotte Spiegel, director of the Window Falls Prevention Program for the city. "Otherwise, you have a situation where there is no control over whether the occupant complies with the regulation."

A revision to the window guard law that has been before the City Council since May of 1992 would define the responsibilities of co-ops and condo boards and change the wording from "public halls" to "areas held in common," among other items. It would also begin education programs to alert grandparents and caregivers to the benefits of window guards.

Spiegel has argued with the Council that the revisions do not go far enough to protect children. "I appreciate everybody's attempt to improve the law but it is only increasing the problems," she said. "But we who have administered the law see gaping holes that are being hammered into the law, so we cannot all sit still and acquiesce."

The new law would exempt windows with permanently installed air conditioners. A child in one case last year died after climbing out over the air conditioner. Spiegel said the most recent case of Paul Rosen, who survived, had nothing to do with an air conditioner, although such a unit was installed in an upper window.

Dan Margulies, executive director of the Community Housing Improvement Program, said this window should have been stopped, so it could not open wide.

Ira M. Meister, RAM CREA, who is executive vice president of Darwood Management, said one problem is that children use guards as a ladder. "You have to put on stops so the window doesn't open higher," he explained. Stops are also placed on sliding and pivoting windows.

Under the law, the opening must not be large enough to allow a 5 inch sphere through, and the space should measure as no more than 4 1/2 inches. "Six inches is a lot for a kid," said Meister. "I would do two inches and screw it in with a tamper proof screw." Additionally, the law requires the guard to withstand 150 lbs. of pressure.

Fire Escape Exempt

Currently, Spiegel said, the only exception to installing window guards is one window that gives access to the ground floor or the first floor if the building has fire escapes. Additionally, window guards may not be installed on windows providing access to fire escapes.

Many co-ops supply the guards as a courtesy, agreed Meister. "In 99 percent of the co-ops we don't charge. Many times people move out and we recover them and re-install them where and when they are needed."

Boards should be trying to make sure where there are kids that there are window guards installed, through building and employee inspections, advised attorney Siegler. "They should insist window guards be installed."

If by Feb. 15 the property owner or manager does not have the written statement from the tenant or unit owner and does not already know a child is living there, then the unit must be inspected at reasonable times to see if a child is living there and if window guards are properly installed and maintained. The window guards themselves must be a kind approved by the Dept. of Health, eliminating the decorative models, say managers.

The board or owner must be able to prove they tried to get in touch with the tenant at various times and various days, explained Siegler. "What do you do when you have fairly affluent people? The bottom line is you report them."

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

The Dept. of Health will send a letter to the occupant saying they are in violation of the health code. "If all else fails, the owner can seek eviction," Siegler added.

In the current Housing Court climate, the court would probably order the tenant to allow access rather than make an actual eviction, noted Margulies. "There should be a procedure where you simply seek an order to cure," he suggested. "The owner ought to have the same rights as a tenant to bring a Housing Part Action by certified letter to force compliance with city code. The owner's complaint is not that the tenant is failing to pay rent but that they are refusing to comply with city law."

Meister said Darwood handles the co-ops the same way they handle the rentals. "We have instances where people have given us the forms and say they don't want window guards," he recalled. "We notify them that they must allow us in and we notify Window Falls. They are a lot of help, they give us a summons," he laughed. "But in 100 percent of the cases we tell them about we get window guards."

The violation might help ensure compliance in co-ops where everyone must pay, but does not help private owners, Margulies noted.

Board members should not ignore the obligation to supply window guards or treat this as something where they or the managing agent can be absolved from liability, noted Siegler. "It's not a law to kid around with."

Not installing a window guard carries a civil penalty of $500 for each violation of the law, but it is also a criminal misdemeanor that carries with it upon conviction a $500 fine and six months in jail.

Jack Freund, acting president of the Rent Stabilization Association, says a number of problems come up, including tenants that do not respond to the notification so that owners have to make additional inquiries. "The law is quite onerous as to what an owner is required to do," he said. "But even when an owner does what he is required to do, he is not relieved of liability in such tragic cases. There is a responsibility for the window guard, even when the owner can't get access to the apartment," he added.

The Dept. of Buildings has no jurisdiction or rules with regard to window guards or how far windows may open, said spokesperson Vahe Tiryakian.

Spiegel says it upsets her to see apartment buildings on Park Avenue where there are fifteen different window styles on one facade. "It creates a lot of problems," she said. "You are inviting disaster. It just takes a second."

In this particular case, she said, the management company, Charleswood Tenants Corp., represents buildings in Manhattan but the records are being kept in Great Neck. Charleswood declined comment.

"The records should be in a file that's kept on the premises," she said. "That is something that is going to have to be written into the regulations."

Spiegel also advised keeping leases and window guard forms at least seven years in case a claim is made and they are needed for evidence.

The experts were all appalled Paul Rosen's mother was the president of her cooperative's board of directors. "She should have known better," Rappaport scolded. "The boy was five and if the board president doesn't know she had to have window guards, shame on her."

Agreed Spiegel, "That elevates her to some element of stupidity." Asks Rothman, "If this is the board president, to what degree is society responsible for playing watchdog on its members? "Unfortunately," reminded Freund, "a parent is not the most responsible entity. People do make strange choices."

Said Margulies: "Underlying the issue is where the owner's responsibility should end and a parents responsibility should begin. The city has taken the position that the owner should be more responsible than the parents."
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Title Annotation:evaluation of New York, New York law regarding safety devices for residential buildings to protect children
Author:Weiss, Lois
Publication:Real Estate Weekly
Date:Nov 3, 1993
Words:1528
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