DID HE ENGINEER A WHOLE STORY?

ECB Denies Appeal of Dismissed Buildings Summons

Board finds no evidence the engineer knew or should have known his filed plans were inaccurate.

On September 25, 2014 the Department of Buildings issued a notice of violation to Kenneth Philogene, a professional engineer, for making a material false statement in amended construction plans filed with DOB. The amended plans submitted by Mr. Philogene on September 8, 2014 showed the subject building at 1215 Jefferson Avenue in Bushwick, Brooklyn to be three stories tall, however when a DOB inspection was conducted on September 25, 2014 the subject building was actually four stories. Mr. Philogene contested the summons with the Environmental Control Board, arguing the amended plans were based on a professional architectural survey given to him by the building owner, and showing the building as three stories tall. Mr. Philogene argued this conformed to his initial personal inspection in February 2014, where the building was three stories, and he did not know or have reason to know the fourth story had been added. The hearing officer credited Mr. Philogene and dismissed the NOV.

On appeal, the DOB argued Mr. Philogene is a licensed professional and responsible for verifying the information he relied on in filing the amended plans. The DOB further argued the “known or should have known” standard requires a professional engineer to verify representations made in DOB applications, plans, and other filings. Mr. Philogene argued he had no duty to re-inspect the premises and he properly relied on the licensed surveyor, a specifically trained expert. Mr. Philogene also argued the DOB examiner failed to produce any evidence of the fourth story prior to September 8, and as the story could have been built between then and September 25, the amended plans as submitted on September 8 contained no false statement.

On April 30, 2015 the Environmental Control Board denied the appeal. They agreed no evidence established Mr. Philogene knew or should have known of the fourth story when the amended plans were filed. The Board found Mr. Philogene reasonably relied on the professional architectural survey and had no duty to conduct a physical re-inspection of the site.

NYC v. Kenneth Philogene, ECB Appeal No. 1500168 (Apr. 30, 2015).