Green Building Law Blog
Construction Litigation Greenwashing--Why Gidumal v. Site 16/17 Development LLC Is Not Green Litigation...Yet
My good friend and savvy LEED litigation sleuth Steve Del Percio uncovered a case filed in New York that involves, among other things, an allegation of failure of the heating system to perform properly. The luxury condominium building, at One and Two River Terrace in Manhattan was advertised as LEED Gold. The Compalint alleges that an energy audit conducted by the plaintiffs revealed deviation of "49% over the USGC LEED and BPCA standards in the cumulative size of holes and cracks allowing infiltration of cold air." But this claim is about the performance of the heating system--failure to heat--not its energy performance. The other claims in the case are similarly basic construction law claims--the failure of a railing to protect from falls and frosted glass windows where there were supposed to be clear glass, for example.
The case incorporates allegations regarding the green components of the project as support for its regular construction claims, not for failure to acheive green requirements. In the five causes of action against the architects and the cause of action against the engineer, failure to construct a green building is nowhere to be found. The causes of action against the developer do not include a cause of action for false advertising regarding the green components of the building. In short, throwing in the energy audit information and noting that the building was LEED certified is the construction litigation equivalent of greenwashing.
This is not to say that the case could not develop these claims through an amended complaint if more information is uncovered during discovery. Indeed, with the press that the case is receiving--it got a mention in yesterday's Wall Street Journal--these areas might be developed further.
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"The causes of action against the developer do not include a cause of action for false advertising regarding the green components of the building. In short, throwing in the energy audit information and noting that the building was LEED certified is the construction litigation equivalent of greenwashing."
I don't think you're looking at the first four causes of action against the developer/sponsor closely enough. Paragraph 26 of the Complaint says that the plaintiffs "relied on the representations and plans contained in the offering plan and amendments presented to them prior to signing the Purchase Agreement." Those representations included the building's green features as alleged in Paragraphs 50-55 of the Complaint. Among other deviations from the offering plan that are described elsewhere, these alleged discrepancies are part of the breach of contract, misrepresentation, and fraud claims that are being asserted against the sponsor/developer.
While I agree with you that the specific representations in the offering plan about units' and/or the building's green features are not set forth in the Complaint, they don't necessarily need to be at this point in the proceeding and will likely be fleshed out via a bill of particulars or other discovery if the lawsuit moves forward. For these reasons, I respectfully disagree that this is a case of "construction litigation greenwashing" as you have characterized it above.