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).