Pennsylvania Record

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No criminal charges in fatal Phila. warehouse blaze; case remains civil matter

By Jon Campisi | Feb 4, 2014

The deaths of two city firefighters in a warehouse blaze nearly two years

ago that is the subject of wrongful death litigation will remain a civil court matter after the Philadelphia District Attorney’s Office announced this week that no criminal charges will be brought in the case.

After a near two-year investigation, a grand jury recommended not filing criminal charges relating to the deaths of Lt. Robert Neary and firefighter Daniel Sweeney, who lost their lives on April 9, 2012, battling a five-alarm fire at the former Thomas Buck Hosiery factory in Philadelphia’s Kensington neighborhood, the prosecutor’s office announced on Monday.

“Unfortunately, we have reluctantly concluded that there is currently no appropriate criminal penalty for the tale of misdeeds we found,” the grand jury reported, according to the office of District Attorney Seth Williams. “While the building owners violated virtually every regulation that got in their way, they were never held accountable for doing so, and we do not believe that the available evidence can establish that their flagrant code violations and tax delinquencies caused the fire that eventually destroyed their property and the firemen’s lives.”

The grand jury, however, laid some blame at the foot of city agencies, determining that its report “is really about a failure of government – the failure of Philadelphia administrative agencies to accomplish the basic functions for which they exist.

“Had city departments done their job, these deaths might never have occurred,” the grand jury wrote.

Those most culpable for the tragedy, the grand jury determined, were Nahman and Michael Lichtenstein, the father-son real estate team from New York who had bought the former factory building in 2008 with the goal of redeveloping the property.

“Instead of helping what was seen as an up-and-coming neighborhood, the Lichtensteins were unscrupulous from the start,” reads a District Attorney’s Office news release.

The real estate developers, the prosecutor’s office stated, agreed to pay $730,000 for the property, but ended up delivering merely half that amount during closing.

The rest of that money, which didn’t come in for another three years, was ultimately settled on with the seller for a fraction on the dollar.

“From the moment the Lichtensteins took over control of the property it was clear they did not care about the physical state of the building, or the neighborhood surrounding the property,” the District Attorney’s Office wrote in its press account of the grand jury report. “They hired supposed caretakers, but didn’t allow them to properly provide maintenance for the huge property.”

The developers also turned off electricity, allowed scrappers to steal copper and wiring, and failed to keep squatters out of the building.

The Lichtensteins also failed to pay any taxes on the property, with delinquency approaching $60,000 by the time of the April 2012 blaze.

The owners also had amassed $13,000 in unpaid water and sewer fees.

The city demolished the building following the fatal fire; the Lichtensteins still reportedly owe $100,000 for the job.

The grand jury determined that it was unable to recommend criminal charges, however, because city inspectors testified that the property was properly secured and sealed.

“The evidence currently available therefore presented significant barriers to an attempt to prove criminal causation beyond a reasonable doubt,” the District Attorney’s Office stated.

Philadelphia’s Department of Licenses and Inspections did repeatedly fail to act on serious building and fire code violations at the location, which was noted in the grand jury report.

And other agencies, such as the city’s revenue and law departments, failed either to collect on large debts owed by the Lichtensteins or to seize the property out from under them, the prosecutor’s office stated.

“At one point, for example, the city sent overdue tax notices to the same incorrect address, four times in a row – even as other city officials had the proper address in their records,” the D.A.’s Office’s news release states.

Meanwhile, civil litigation initiated by the widow of the veteran firefighter killed in the blaze appears to be moving forward.

Diane Neary, wife of Lt. Robert Neary, filed suit this past October in Philadelphia’s Common Pleas Court against the building’s owners, as well as York Street Property Development, Heritage Equity Partners, YML Realty Inc., and Toby Moskowitz, also known as Toby Moskovits.

In her civil action, the widow says her late husband experienced “severe pain, extreme suffering, and … death by suffocation.”

The property owners had knowledge of squatters living in the vacant warehouse structure, the lawsuit alleges, yet they did noting to rectify the situation.

“Each of the Defendants knew and/or should have known that the York Street Property was being used as a drug den and illegal chop shop by drug dealers and users, vagrants, and other illegal occupants,” the lawsuit states.

Neary, who is represented by attorneys Thomas W. Sheridan and Christopher D. Hinderliter, of the firm Sheridan & Murray, is suing for negligence, wrongful death and loss of consortium.

Court records show that on Feb. 3, the same day as the grand jury’s findings were released, Philadelphia Common Pleas Court Judge Angelo Foglietta overruled preliminary objections that had been filed in the civil case for attorneys representing the defendants.

The judge ordered the defendants to file an answer to the plaintiff’s complaint within 10 days of his order.

Another Philadelphia Common Pleas Court judge, Mark I. Bernstein, had earlier issued a ruling stating that no depositions of the individual defendants could occur until the completion of the grand jury’s investigation.

That ruling, which came down on Jan. 28, also said that if the grand jury concludes without indictment of the individual defendants discovery would proceed immediately thereafter without restriction.

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