December 28, 1999

Appeal of

J. LEONARD SPODEK

NATIONWIDE POSTAL MANAGEMENT

LEASE AGREEMENT

(Adger, AL – Main Post Office)

PSBCA No. 4223

APPEARANCE FOR APPELLANT:

J. Leonard Spodek

APPEARANCE FOR RESPONDENT:

Samuel J. Schmidt, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

Appellant has filed a motion requesting that the Board partially reconsider its decision in J. Leonard Spodek/Nationwide Postal Management, PSBCA No. 4223 (Slip Opinion, September 8, 1999).  In the Opinion, we held that Appellant, as the lessor of a building leased to Respondent, the United States Postal Service, was liable for the costs of certain repairs to the building and parking areas undertaken by Respondent after Appellant failed to accomplish the repairs.  In its motion, Appellant argues that the Board should not have held Appellant liable for the cost of power washing the facility, arguing that Respondent did not provide Appellant with prior notice of the need to carry out this repair item.  Specifically, Appellant argues that the Board based its finding of liability on this issue on the fact that Respondent sent Appellant photographs of the building that depicted accumulated mildew on the brick exterior.  Appellant notes, however, that the photographs were not included in the record and requests, on this basis, that the Board reconsider its decision on this item[1].

            In our Opinion we recognized that the Postal Service did not formally notify Appellant of the mildewed condition of the exterior surface.  However, Respondent’s failure to give formal notice does not excuse Appellant from liability.  See J. Leonard Spodek d/b/a/ Nationwide Postal Management, PSBCA No. 3710, 96-2 BCA ¶ 28,457 (cited in original Opinion).  As we stated, “Respondent’s letter to Appellant on September 24, 1997, coupled with the Postmaster’s action of sending Appellant photographs of the condition of the exterior of the facility . . . provided Appellant sufficient notice of the deteriorated condition” (Opinion, page 7).  Appellant had more than sufficient opportunity thereafter to undertake the work before Respondent hired a third party contractor.

Moreover, the evidence in the record amply supported, through testimony, that the brick exterior of the building was mildewed (Opinion at Finding No. 5).  The Board further noted that Appellant had not argued that the power washing was not necessary or offered evidence that the work could have been accomplished at a lower cost.  The Board found, therefore, that Appellant was liable for the costs Respondent incurred in power washing the brick exterior.

Having reviewed our findings of fact and application of law, we are satisfied that we fully considered Appellant’s arguments.  Appellant has not offered any previously unavailable evidence or shown any factual or legal errors which would warrant changing our decision.  Accordingly, Appellant’s motion for reconsideration is denied.

William K. Mahn

Administrative Judge

Board Member

I concur:

James A. Cohen

Administrative Judge

Chairman

I concur:

David I. Brochstein

Administrative Judge

Vice Chairman

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[1]   Appellant has not disputed receiving the photographs from the Postmaster, nor has he asserted, on reconsideration, that he was unaware of the need to clean the exterior of the building .