Commercial and Residential Experience
Downtown Residential Development – Temporary Restraining Order Dissolved
When a 50-story $250 million residential project in Lower Manhattan was halted by a Temporary Restraining Order initiated by an adjacent property owner and a Stop Work Order issued by the New York City Department of Buildings, our attorneys stepped in and, within 48 hours, arranged for the lifting of the Temporary Restraining Order and the rescinding of the Stop Work Order. The solution was reached by retaining a prominent engineering firm and immediately working with the adjacent property owner and the New York City Department of Buildings to assure that no structural damage had been or would be experienced.
Systemic Problems Solved at New Jersey Condominium Complex
When construction was completed on a luxury residential condominium building overlooking the Hudson River, numerous design and construction problems surfaced in many systems. As the owner’s attorney, as a partner at a prior firm, John E. Osborn oversaw a new design and construction team and solved each of the building problems. We then obtained full recovery of costs incurred through a lawsuit against 12 parties; the lawsuit was resolved through mediation without taking a single deposition.
Manhattan Condominium Terrace and Balcony Repair Program
A Midtown Manhattan condominium building experienced significant cracking in its balcony and terrace walls. The condominium association began a $5.5 million repair program and commenced a lawsuit against the sponsor of the project, to recover the cost of the repairs. John Osborn, representing the sponsor of the project, while a partner at a prior firm, engaged an architectural and engineering team to investigate the problem, assess culpability and design, and formulate an effective repair program. A successful result was achieved as the repairs were successfully carried out and the cost was borne by the original construction manager, contractors and architect.
Owner Recovers Damages Due To Façade Errors, Omissions and Construction Defects
Our firm, on behalf of the owner of a Manhattan high-rise office building, commenced a law suit against an architect and restoration contractor arising out of a comprehensive façade inspection and restoration in which the architect’s design contained errors and omissions and the contractor’s work was defective. In this case, our client, the building owner, received a significant settlement amount from the architect and contractor.
Asbestos and New York State Department of Labor
Mark Pennington assisted a client with the demolition of a manufacturing facility in upstate New York, including contracting for and documenting waste disposal and representing the client before the New York State Department of Labor regarding alleged violations of asbestos rules.
Remediation of Petroleum Release
While at a prior firm, Mark Pennington represented a New York department store owner in response to a release of petroleum to land and coastal waters, remediation of coastal and subsurface impacts of the spill, and disputes with a new property owner concerning rights and responsibilities for remediation prior to construction of a new commercial retail complex at the site of the spill. Involved agencies included the U.S. Coast Guard, the U.S. Department of Fish and Wildlife, and NYSDEC.
Brownfield Property in Brooklyn
While at a prior firm, Mark Pennington represented the New York City Partnership and Rheingold Homes Corporation in redevelopment of a brownfield property in Brooklyn as an affordable housing project (“Rheingold Gardens”). The project, which received a conditional negative declaration under CEQR, required interface with the New York City Department of Housing Preservation and Development and the City Department of Environmental Protection. Legal tasks included assistance with site acquisition, financing and insurance matters, developing a remedial action plan, negotiating restrictive covenants, preparing plans for handling of contaminated materials during and after construction, documenting completion of the remedial action, and developing appropriate disclosures to home buyers. The project won a “Phoenix Award” at the national “Brownfields 2005” conference in Denver, Colorado.
Class II Hazardous Waste Sites
Mark Pennington has experience in the representation of a variety of clients with regards to remediating Class II hazardous waste sites under NYSDEC’s inactive sites program, including negotiation of consent orders and resolution of disputes regarding remedy selection.
Complex Phase I Environmental Issues Addressed in Refinancing Auto Dealership Property
A Westchester auto dealership applied to refinance its property and the lender required a Phase I environmental investigation at the borrower's expense. The lender required that all issues raised by the report be remedied before approving the refinancing. We were retained to oversee the implementation of the Phase I environmental investigation and then to review the findings with the lender's attorneys. Complicated issues relating to hydraulic lifts (governed by USEPA laws and regulations relating to underground injection control systems), asbestos, underground tanks, and potential ground water contamination were addressed effectively, and environmental impediments to the loan process were cleared.
Defense of Coast Guard Notices
While at a prior firm, Mark Pennington provided representation of an airline in defense of Coast Guard notices of violation relating to wingtip spills from aircraft at JFK airport.
Environmental Issues Relating to Construction of a Major Shopping Mall in Westchester County
When a developer discovered environmental issues on a project site in Westchester County, Mark Pennington represented the developer in the remediation of contamination and management of dewatering activities during construction of a major shopping mall.
John F. Kennedy International Airport Remediation
While at a prior firm, Mark Pennington represented an airline in negotiation and implementation of consent order for remediation of jet fuel contamination at JFK airport in tandem with a major terminal redevelopment. Services included negotiation of consent order, construction and consulting contracts; development and implementation of cost cap insurance policy; advice regarding management of excavated soils, dewatering and stormwater discharges; and development of procedures with the Port Authority of New York and New Jersey and NYSDEC to document completion of remediation prior to construction. Assisted with parallel cost recovery litigation.
New York Brownfield Clean up on Manufactured Gas Plant Site
A technology company wanted to build a new corporate headquarters in lower Manhattan. Mark Pennington provided advice on the property the company selected, which was affected by former manufactured gas plant operations. The representation included the negotiation of a Brownfield Cleanup Agreement, negotiation of a remediation contract and environmental insurance, and documentation of completion. Mr. Pennington also provided oversight of post-completion operations and maintenance and annual certifications of institutional controls and engineered controls.
Petroleum Bulk Storage Compliance
A petroleum distribution company needed advice on bulk storage compliance. Mark Pennington, while at a prior firm, represented the company in settlement conferences and compliance hearings with NYSDEC and delegated counties relating to compliance with bulk storage regulations at commercial gas stations, and in negotiation of global compliance orders requiring independent third party audits and corrective measures.
Repositioning Manufacturing Facility for Re-Use
A client was interested in the decommissioning of manufacturing facility in upstate New York. Mark Pennington provided assistance with the decommissioning as well as the identifying environmental issues in connection with repositioning of the property for re-use.
Restaurateur Purchases Former Dry Cleaning Site With Spotty History
A Manhattan bar and restaurant proprietor signed a contract to purchase property near Restaurant Row. The purchaser had not focused on its prior use as a dry cleaning establishment. After perchloroethylene ("perc") was discovered in dry wells beneath the building, the deal was believed to be dead. Our attorneys were successful in negotiating significant concessions and protections, which allowed the deal to go forward at a significant discount to the client.
Solid Waste Management Advice
The firm provides counsel to our clients on the management of solid waste, in due diligence regarding disposal facilities, and in negotiation of disposal contracts with solid waste disposal facilities.
New York Voluntary Cleanup Program
The firm counsels a variety of clients with regards to site investigations and remediation of former dry cleaning properties under the New York Voluntary cleanup program. Our attorneys also interact with the New York State Department of Health regarding management of vapor intrusion issues.
New York Treatment Storage and Disposal Facility
Mark Pennington represented a New York treatment storage and disposal facility in a permit modification proceeding before NYSDEC. Petroleum Spill On behalf of a real estate company in closure of a petroleum spill matter, Mark Pennington provided representation in resolution of a dispute over the source of the spill, and in settlement of the New York State Attorney General’s claim for recovery of NYSDEC remedial costs.
SPDES Permit Compliance
On behalf of a golf course management company, we provided representation relating to SPDES permit compliance proceedings related to management of reclaimed wastewater from a housing development.
Co-Op Façade: Immediately Discovering and Repairing a Public Health Hazard
Osborn assisted a Manhattan Co-Op with an investigation and litigation relating to a failed façade renovation in an effort to ensure that the façade was properly repaired and that the repair costs were recovered. By being pro-active and immediately addressing the façade problems, it was discovered that a portion of the façade was in peril of falling off – causing a public health hazard. Our team worked with the Co-Op to quickly, and cost-effectively, to address the immediate danger (and ensuing liability risk).
Troubleshooting for a Manhattan Night Club: Keeping it Open
While it was open, our firm represented one of the 'hottest' nightclubs in Manhattan. On a regular basis, our Firm consulted with the Owner and resolved numerous facilities issues such as air handling, noise, etc. We also negotiated with government officials to resolve regulatory issues as they arose.
Settling a Violation of Lead Based Paint Notification Requirements Without Fine
A large residential management company was spot-checked for compliance with HUD Lead Based Paint Notification requirements. Although lead hazards were absent, compliance with paper work requirements was deficient at one building, and the management company faced fines well in excess of $100,000. We retained an environmental consultant to prepare a comprehensive Paint Maintenance Plan for the management company to follow at all of the properties it owned and managed. The violation was settled without a fine.
Defended Developers Under Owner Controlled Insurance Programs (OCIPs)
As outside counsel for a New York City Developer, the firm served as defense counsel on a multitude of personal injury and property damage claims by workers and neighboring properties` Advised Developer Regarding Mortgage Foreclosure While at a prior firm, John Osborn, represented developer in acquiring mortgage foreclosure from a lender which the developer pursued the mortgage foreclosure to successful conclusion and received payment of the mount due under the mortgage.
Auction of commercial and residential properties
While at a prior firm, John Osborn, handled auctions of residential co-ops, condominiums and commercial properties on behalf of lenders.
Commercial Litigation to Enforce Non-Solicitation / Covenant not to Compete
When an executive level employee worked at a leading environmental consulting firm proceeded to solicit and be hired by the company’s clients while he utilized the equipment, employees and permits of the firm. We conducted a forensic investigation into these fraudulent practices and carried out litigation which favorably resolved these issues.
Credit Support for IDA Bonds Issued to Fund Acquisition and Development
Eric Haas, while at a prior firm, was involved in a number of transactions involving the NYC Industrial Development Agency, generally representing a lender (usually Chemical Bank, then Chase Manhattan Bank, then JP Morgan Chase) providing credit support for IDA bonds being issued to fund acquisition and development of facilities by local companies.
Fiber Optic Underground Utility Damaged
An underground fiber optic utility company’s lines were damaged by contractors performing work for the electric and phone companies in New York City. The firm developed a strategy to recover damages from the companies damaging their facilities.
New York City Housing Authority
Eric Haas, while at a prior firm, represented the New York City Housing Authority in seeking new headquarters office facilities, analyzing a number of possible locations and transaction structures.
Advised on Lending for Environmentally Contaminated Sites
While at a prior firm, John Osborn, advised lenders regarding providing loans on mildly contaminated sites in Manhattan.
Noise Code Violations Resolved by New York City Telecommunications Hotel
When massive air conditioning systems that cooled file servers at a Manhattan telecommunications hotel exceeded regulatory noise limits, residential building owners living across the street and down the block contacted New York City inspectors. Violations were issued. John Osborn was retained by the building's owner to handle negotiations with the tenant and violations issued by the New York City Environmental Control Board. Arrangements were made for community members to hold off further action until the tenant remedied the noise violation as required by its lease. Successful resolution was reached. The tenant paid to retrofit equipment, which cost in excess of $2 million, thereby addressing the problem and avoiding further violations.
When a 50-story $250 million residential project in Lower Manhattan was halted by a Temporary Restraining Order initiated by an adjacent property owner and a Stop Work Order issued by the New York City Department of Buildings, our attorneys stepped in and, within 48 hours, arranged for the lifting of the Temporary Restraining Order and the rescinding of the Stop Work Order. The solution was reached by retaining a prominent engineering firm and immediately working with the adjacent property owner and the New York City Department of Buildings to assure that no structural damage had been or would be experienced.
Systemic Problems Solved at New Jersey Condominium Complex
When construction was completed on a luxury residential condominium building overlooking the Hudson River, numerous design and construction problems surfaced in many systems. As the owner’s attorney, as a partner at a prior firm, John E. Osborn oversaw a new design and construction team and solved each of the building problems. We then obtained full recovery of costs incurred through a lawsuit against 12 parties; the lawsuit was resolved through mediation without taking a single deposition.
Manhattan Condominium Terrace and Balcony Repair Program
A Midtown Manhattan condominium building experienced significant cracking in its balcony and terrace walls. The condominium association began a $5.5 million repair program and commenced a lawsuit against the sponsor of the project, to recover the cost of the repairs. John Osborn, representing the sponsor of the project, while a partner at a prior firm, engaged an architectural and engineering team to investigate the problem, assess culpability and design, and formulate an effective repair program. A successful result was achieved as the repairs were successfully carried out and the cost was borne by the original construction manager, contractors and architect.
Owner Recovers Damages Due To Façade Errors, Omissions and Construction Defects
Our firm, on behalf of the owner of a Manhattan high-rise office building, commenced a law suit against an architect and restoration contractor arising out of a comprehensive façade inspection and restoration in which the architect’s design contained errors and omissions and the contractor’s work was defective. In this case, our client, the building owner, received a significant settlement amount from the architect and contractor.
Asbestos and New York State Department of Labor
Mark Pennington assisted a client with the demolition of a manufacturing facility in upstate New York, including contracting for and documenting waste disposal and representing the client before the New York State Department of Labor regarding alleged violations of asbestos rules.
Remediation of Petroleum Release
While at a prior firm, Mark Pennington represented a New York department store owner in response to a release of petroleum to land and coastal waters, remediation of coastal and subsurface impacts of the spill, and disputes with a new property owner concerning rights and responsibilities for remediation prior to construction of a new commercial retail complex at the site of the spill. Involved agencies included the U.S. Coast Guard, the U.S. Department of Fish and Wildlife, and NYSDEC.
Brownfield Property in Brooklyn
While at a prior firm, Mark Pennington represented the New York City Partnership and Rheingold Homes Corporation in redevelopment of a brownfield property in Brooklyn as an affordable housing project (“Rheingold Gardens”). The project, which received a conditional negative declaration under CEQR, required interface with the New York City Department of Housing Preservation and Development and the City Department of Environmental Protection. Legal tasks included assistance with site acquisition, financing and insurance matters, developing a remedial action plan, negotiating restrictive covenants, preparing plans for handling of contaminated materials during and after construction, documenting completion of the remedial action, and developing appropriate disclosures to home buyers. The project won a “Phoenix Award” at the national “Brownfields 2005” conference in Denver, Colorado.
Class II Hazardous Waste Sites
Mark Pennington has experience in the representation of a variety of clients with regards to remediating Class II hazardous waste sites under NYSDEC’s inactive sites program, including negotiation of consent orders and resolution of disputes regarding remedy selection.
Complex Phase I Environmental Issues Addressed in Refinancing Auto Dealership Property
A Westchester auto dealership applied to refinance its property and the lender required a Phase I environmental investigation at the borrower's expense. The lender required that all issues raised by the report be remedied before approving the refinancing. We were retained to oversee the implementation of the Phase I environmental investigation and then to review the findings with the lender's attorneys. Complicated issues relating to hydraulic lifts (governed by USEPA laws and regulations relating to underground injection control systems), asbestos, underground tanks, and potential ground water contamination were addressed effectively, and environmental impediments to the loan process were cleared.
Defense of Coast Guard Notices
While at a prior firm, Mark Pennington provided representation of an airline in defense of Coast Guard notices of violation relating to wingtip spills from aircraft at JFK airport.
Environmental Issues Relating to Construction of a Major Shopping Mall in Westchester County
When a developer discovered environmental issues on a project site in Westchester County, Mark Pennington represented the developer in the remediation of contamination and management of dewatering activities during construction of a major shopping mall.
John F. Kennedy International Airport Remediation
While at a prior firm, Mark Pennington represented an airline in negotiation and implementation of consent order for remediation of jet fuel contamination at JFK airport in tandem with a major terminal redevelopment. Services included negotiation of consent order, construction and consulting contracts; development and implementation of cost cap insurance policy; advice regarding management of excavated soils, dewatering and stormwater discharges; and development of procedures with the Port Authority of New York and New Jersey and NYSDEC to document completion of remediation prior to construction. Assisted with parallel cost recovery litigation.
New York Brownfield Clean up on Manufactured Gas Plant Site
A technology company wanted to build a new corporate headquarters in lower Manhattan. Mark Pennington provided advice on the property the company selected, which was affected by former manufactured gas plant operations. The representation included the negotiation of a Brownfield Cleanup Agreement, negotiation of a remediation contract and environmental insurance, and documentation of completion. Mr. Pennington also provided oversight of post-completion operations and maintenance and annual certifications of institutional controls and engineered controls.
Petroleum Bulk Storage Compliance
A petroleum distribution company needed advice on bulk storage compliance. Mark Pennington, while at a prior firm, represented the company in settlement conferences and compliance hearings with NYSDEC and delegated counties relating to compliance with bulk storage regulations at commercial gas stations, and in negotiation of global compliance orders requiring independent third party audits and corrective measures.
Repositioning Manufacturing Facility for Re-Use
A client was interested in the decommissioning of manufacturing facility in upstate New York. Mark Pennington provided assistance with the decommissioning as well as the identifying environmental issues in connection with repositioning of the property for re-use.
Restaurateur Purchases Former Dry Cleaning Site With Spotty History
A Manhattan bar and restaurant proprietor signed a contract to purchase property near Restaurant Row. The purchaser had not focused on its prior use as a dry cleaning establishment. After perchloroethylene ("perc") was discovered in dry wells beneath the building, the deal was believed to be dead. Our attorneys were successful in negotiating significant concessions and protections, which allowed the deal to go forward at a significant discount to the client.
Solid Waste Management Advice
The firm provides counsel to our clients on the management of solid waste, in due diligence regarding disposal facilities, and in negotiation of disposal contracts with solid waste disposal facilities.
New York Voluntary Cleanup Program
The firm counsels a variety of clients with regards to site investigations and remediation of former dry cleaning properties under the New York Voluntary cleanup program. Our attorneys also interact with the New York State Department of Health regarding management of vapor intrusion issues.
New York Treatment Storage and Disposal Facility
Mark Pennington represented a New York treatment storage and disposal facility in a permit modification proceeding before NYSDEC. Petroleum Spill On behalf of a real estate company in closure of a petroleum spill matter, Mark Pennington provided representation in resolution of a dispute over the source of the spill, and in settlement of the New York State Attorney General’s claim for recovery of NYSDEC remedial costs.
SPDES Permit Compliance
On behalf of a golf course management company, we provided representation relating to SPDES permit compliance proceedings related to management of reclaimed wastewater from a housing development.
Co-Op Façade: Immediately Discovering and Repairing a Public Health Hazard
Osborn assisted a Manhattan Co-Op with an investigation and litigation relating to a failed façade renovation in an effort to ensure that the façade was properly repaired and that the repair costs were recovered. By being pro-active and immediately addressing the façade problems, it was discovered that a portion of the façade was in peril of falling off – causing a public health hazard. Our team worked with the Co-Op to quickly, and cost-effectively, to address the immediate danger (and ensuing liability risk).
Troubleshooting for a Manhattan Night Club: Keeping it Open
While it was open, our firm represented one of the 'hottest' nightclubs in Manhattan. On a regular basis, our Firm consulted with the Owner and resolved numerous facilities issues such as air handling, noise, etc. We also negotiated with government officials to resolve regulatory issues as they arose.
Settling a Violation of Lead Based Paint Notification Requirements Without Fine
A large residential management company was spot-checked for compliance with HUD Lead Based Paint Notification requirements. Although lead hazards were absent, compliance with paper work requirements was deficient at one building, and the management company faced fines well in excess of $100,000. We retained an environmental consultant to prepare a comprehensive Paint Maintenance Plan for the management company to follow at all of the properties it owned and managed. The violation was settled without a fine.
Defended Developers Under Owner Controlled Insurance Programs (OCIPs)
As outside counsel for a New York City Developer, the firm served as defense counsel on a multitude of personal injury and property damage claims by workers and neighboring properties` Advised Developer Regarding Mortgage Foreclosure While at a prior firm, John Osborn, represented developer in acquiring mortgage foreclosure from a lender which the developer pursued the mortgage foreclosure to successful conclusion and received payment of the mount due under the mortgage.
Auction of commercial and residential properties
While at a prior firm, John Osborn, handled auctions of residential co-ops, condominiums and commercial properties on behalf of lenders.
Commercial Litigation to Enforce Non-Solicitation / Covenant not to Compete
When an executive level employee worked at a leading environmental consulting firm proceeded to solicit and be hired by the company’s clients while he utilized the equipment, employees and permits of the firm. We conducted a forensic investigation into these fraudulent practices and carried out litigation which favorably resolved these issues.
Credit Support for IDA Bonds Issued to Fund Acquisition and Development
Eric Haas, while at a prior firm, was involved in a number of transactions involving the NYC Industrial Development Agency, generally representing a lender (usually Chemical Bank, then Chase Manhattan Bank, then JP Morgan Chase) providing credit support for IDA bonds being issued to fund acquisition and development of facilities by local companies.
Fiber Optic Underground Utility Damaged
An underground fiber optic utility company’s lines were damaged by contractors performing work for the electric and phone companies in New York City. The firm developed a strategy to recover damages from the companies damaging their facilities.
New York City Housing Authority
Eric Haas, while at a prior firm, represented the New York City Housing Authority in seeking new headquarters office facilities, analyzing a number of possible locations and transaction structures.
Advised on Lending for Environmentally Contaminated Sites
While at a prior firm, John Osborn, advised lenders regarding providing loans on mildly contaminated sites in Manhattan.
Noise Code Violations Resolved by New York City Telecommunications Hotel
When massive air conditioning systems that cooled file servers at a Manhattan telecommunications hotel exceeded regulatory noise limits, residential building owners living across the street and down the block contacted New York City inspectors. Violations were issued. John Osborn was retained by the building's owner to handle negotiations with the tenant and violations issued by the New York City Environmental Control Board. Arrangements were made for community members to hold off further action until the tenant remedied the noise violation as required by its lease. Successful resolution was reached. The tenant paid to retrofit equipment, which cost in excess of $2 million, thereby addressing the problem and avoiding further violations.