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Columbia and a Manhattanville restaurateur are at odds once again—this time, over potentially toxic material. Ramon Diaz, owner of the Cuban restaurant Floridita, is pursuing legal action against Columbia—the latest act in a long and contentious history between the University and his restaurant. Diaz is claiming that he found dangerous asbestos in the restaurant's new location on the corner of 12th Avenue and 125th Street, which he is leasing from Columbia, and that the University did not alert him of the problem before he signed a lease last May. "You took me out of a space that you claimed had a structural problem, you closed down my business, you threw me into a building that was contaminated, and now you say that I have to pay for it," Diaz said. Now, Diaz is claiming that Columbia is responsible for the cleanup, but the University claims that the job is Diaz's. "The university has met all of its obligations with respect to providing the space to the tenant for fit-out. Instead of meeting his obligations, Mr. Diaz has chosen to take action against the University," La-Verna Fountain, associate vice president of Columbia's Construction Business Services and Communications, said in statement. INSPECTION RESULTS Diaz is no stranger to negotiations with Columbia. The original Floridita location, at West 125th Street and Broadway, was also in a Columbia-owned building and was in the site plan for the University's Manhattanville expansion. Two years of negotiations led to the new location two blocks west on 12th Avenue, next to Dinosaur Bar-B-Que. Since signing the lease, Diaz has been making plans for the new restaurant space and negotiating with Columbia. Diaz's complaint is the result of a inspection, required by the city in order to begin renovations, that discovered significant amounts of loose asbestos in the building after he had signed the lease. Jeremy Hassett—a project manager at Whitestone, the firm that completed the inspection—said in an email to Diaz that asbestos was found throughout the building where Floridita is proposed to open. "The entire floor space is considered to be contaminated with this ACM [asbestos-containing material]," the report states. The debris described in Whitestone's report, which Diaz provided to Spectator, included remnants of insulation and floor tiles with asbestos concentrations greater than one percent. According to Tom Hei, an environmental health sciences professor in the Mailman School of Public Health, such concentrations of asbestos are only dangerous if they become airborne or brittle. That is consistent with the descriptions in the report, which describes the majority of the asbestos as "friable," or brittle. That report resulted in the city's Department of Environmental Protection issuing a "stop-work order" for the property, which bars any non-authorized personnel from entering the building. Floridita must now undergo asbestos abatement to remove the hazardous material—something Diaz says he doesn't have hundreds of thousands of dollars to do. LEGAL RESPONSIBILITY For Columbia, the issue is not whether the asbestos is present or not but whose legal responsibility it is to abate it. Fountain said that handling the asbestos falls under Diaz's obligations as a tenant based on his lease with the University, which specified that Diaz was leasing the property "as is." "The lease, which the university signed with Mr. Diaz after extensive input and further negotiation by his own legal counsel, provides that Mr. Diaz accepted the property in its 'as is' condition, including the tenant's responsibility for ensuring compliance with all code requirements," Fountain said in a statement. "Consistent with the obligations of Mr. Diaz's lease, as well as any lease, the tenant has obligations." In an email provided by Diaz, Columbia's lawyer Melissa Bernard said to Diaz's lawyer Jay Friedrich that the University is not in breach of any agreements. "Your client is responsible for filing the paperwork and performing the necessary remediation or encapsulation in its premises," she wrote. Diaz maintains that the "as is" agreement does not extend to environmental issues. "If they had included it, I might not have a case. ... I have to build-out the restaurant, but it doesn't mean that if there are structural problems I have to fix it or contamination I have to contain it," Diaz said. Friedrich cited the lack of information on the loose asbestos when the lease was signed as validation for Diaz's complaint. "'As is' still states that you are taking a premise or a thing without any right to object to its condition. However, there is an understanding that all information provided by the landlord is accurate," Friedrich said. DISCLOSURE DISAGREEMENTS In letters to Diaz's lawyer obtained by Spectator, Columbia's lawyer denied misleading Diaz about the building's asbestos content. In a Dec. 2010 letter to Friedrich provided by Diaz, Bernard wrote that buildings like the one Diaz is leasing typically contain asbestos and referenced previous asbestos abatement work that Columbia had done in the building. "The University has always been clear with your client that asbestos was found in the building," Bernard wrote. Any building built before 1974 will contain asbestos, Hei said. In the years before Diaz signed the lease on the 12th Avenue property, the University did multiple renovations on the building—and the inspection reports from those years don't indicate dangerous asbestos levels. The 10 reports filed with the city by an inspector hired by Columbia between June 2006 and June 2008 concluded that no asbestos was present, except for six samples of black tar found behind an insulated wall, where contamination is unlikely. Prior to signing his lease, Diaz said that he had no indication that any significant asbestos issues existed, and Friedrich said the later Whitestone inspection results were "a complete surprise to Diaz." Diaz's architect, Santiago Carrion, said that on walk-throughs of the building with a Columbia project manager before the lease was signed, the only asbestos brought to their attention was in cement found behind a wall. "There was asbestos beyond what they told us," Carrion said. In a statement responding to Diaz's claims, Fountain called Diaz "an experienced business owner who has executed retail leases before." "The University has had a track record of working productively with a variety of locally-owned retailers and restaurants to create win-win situations for both business owners and the community. We have repeatedly tried to do this with Mr. Diaz since he took over Floridita from its former longtime owner in April 2006," she said. The University did not comment further on previous inspections or asbestos abatement and said it does not comment on ongoing litigation. MOVING FORWARD Diaz filed the breach-of-contract complaint two weeks ago, and in two weeks that complaint will become an official injunction. The stop-work order is still in place, and since the complaint was filed, Columbia has abated asbestos in 99 square feet of the building—but according to Bernard, Columbia's lawyer, that area is not part of the proposed Floridita space on the building's first floor. Now, Diaz says he's waiting to see if he will have to pay for the asbestos abatement, which he says would be too big of a financial burden to bear. Cost estimates for abatement are in the hundreds of thousands, according to Friedrich. "Filing this report came out of desperation," Friedrich said. Hei said the cost of abatement would be significant. "It costs so much because it is a dangerous job and in order to dispose of it properly in a designated site," professor Hei said. "It'll put me under. I can't sustain that kind of expense," Diaz said. "I'm into more than six figures of legal fees with this mess. I've paid my architect, I've paid my engineers. I've spend the last six months planning to build a restaurant and when I finally get them to approve the plans, I file my environmental [inspection report] and the place is contaminated." "It's a never-ending battle," he added. abby.mitchell@columbiaspectator.com

Ramon Diaz Manhatanville Floridita
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