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Finding Synchronicity Between Governor Cuomo’s New Cluster Action Initiative and the NYC DOB’s Corresponding Requirements


A connecting principle,

Linked to the invisible

Almost imperceptible

Something inexpressible.

Science insusceptible

Logic so inflexible

Causally connectable

Nothing is invincible.

“The Police”, 1983.

This week, in response to the emergence of COVID-19 hot spots in downstate New York, Governor Cuomo instituted a new “cluster action initiative” to “crush” the clusters and contain the spread. New rules and restrictions, to be “in effect for a minimum of 14 days”, are designed to directly target “areas with the highest concentration of COVID cases and the surrounding communities.”

Three of the clusters identified are in Brooklyn and Queens, which boroughs have been color-coded “Red, Orange and Yellow”, depicted as concentric circles with red in the core, spreading into orange and yellow surrounding areas. In a “Red Zone”, among other things, only essential businesses are permitted to remain open; in an “Orange Zone”, “high-risk non-essential businesses, such as gyms and personal care” may not open; and in a “Yellow Zone”, technically all businesses may remain open, but many with special restrictions. (In each color-coded zone, there are specific prohibitions or precautions applicable to houses of worship, mass gatherings, indoor and outdoor dining and schools, depending on the gradation.) Presumably, construction is one of the industries that remains an “essential business” a la “Phase 1” during this year’s four-phase reopening plan, versus its earlier status, when all “non-essential construction” except “emergency construction” was compelled to shut down.

The new restrictions are to take effect in New York City “as soon as” today. A question arises as to whether the NYC Department of Buildings will issue any requirements or limitations for ongoing projects in Red Zones, above and beyond the COVID-19 safety guidelines for property owners and contractors that it issued on June 5, 2020. As of today’s date, there are no corresponding press releases or other indicia of updates. Hopefully, any further DOB guidelines are synchronous with the state’s initiatives and provide the clarity needed to effortlessly navigate this ever-changing situation.

Copyright © 2020 Robinson & Cole LLP. All rights reserved.National Law Review, Volume X, Number 282



About this Author

Virginia K. Trunkes Construction & Litigation Attorney Robinson + Cole Law Firm

Virginia K. Trunkes advocates on behalf of developers; apartment building, brownstone and condominium unit owners; cooperative boards of directors; construction managers, contractors and subcontractors; and design services professionals in negotiating their business contracts and adjacent-owner license access agreements. She is a member of the firm’s Construction Law Group.

As former Chair of the New York City Bar Association’s Construction Law Committee, Virginia has a broad overview of all issues implicating construction projects, including...