New York Law Review

Tag: Excavation

  • Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481 (2012): Establishes Strict Liability for Excavation Damage Under NYC Administrative Code

    18 N.Y.3d 481 (2012)

    In New York City, Administrative Code § 27-1031(b)(1) (now § 3309.4 of the NYC Construction Code) imposes strict liability on parties undertaking excavation work exceeding ten feet below curb level who fail to protect adjoining structures, regardless of negligence.

    Summary

    This case addresses whether New York City Administrative Code § 27-1031(b)(1) imposes strict liability on excavators for damage to neighboring properties. The Court of Appeals held that it does, reversing the Appellate Division. Plaintiff Yenem, a tenant, and Plaintiff Randall, the building owner, sued the defendant developers after excavation work caused structural damage to their building. The Court reasoned that the code provision, originating from an 1855 state law, was intended to shift the burden of protecting adjoining properties to the excavator, imposing absolute liability for resulting damages. The court reinstated summary judgment for the plaintiffs on the issue of liability.

    Facts

    Defendant JBC, through its subsidiary 281 Broadway Holdings, began developing a commercial and condominium complex adjacent to Plaintiff Randall’s building at 287 Broadway. Defendant Hunter-Atlantic performed the excavation, reaching a depth of 18 feet. During the excavation, 287 Broadway shifted out of plumb. The Department of Buildings found the building leaning approximately nine inches and issued a vacate order, forcing Plaintiff Yenem to close its pizzeria and rendering Randall’s building vacant.

    Procedural History

    Yenem and Randall separately sued the defendants, claiming negligence and strict liability under Administrative Code § 27-1031(b)(1). The Supreme Court initially denied Yenem’s motion for summary judgment but granted Randall’s motion. The Appellate Division consolidated the appeals, reversing the order granting Randall summary judgment. The Court of Appeals granted leave to appeal and reversed the Appellate Division, reinstating the Supreme Court’s order in Randall and granting summary judgment to Yenem.

    Issue(s)

    Whether Administrative Code of the City of New York § 27-1031(b)(1) imposes strict liability on a party who causes excavation to be made, for damage to adjoining structures.

    Holding

    Yes, because the provision originated from an 1855 state law that imposed absolute liability on excavators for damage to adjoining properties when excavations exceed ten feet below curb level, and this liability remains despite recodification as a municipal ordinance.

    Court’s Reasoning

    The Court relied on the principle that violation of a state statute imposing a specific duty constitutes negligence per se or absolute liability, while violation of a municipal ordinance is merely evidence of negligence. However, the Court acknowledged an exception for Administrative Code sections originating from state law. Analyzing the origin of § 27-1031(b)(1), the Court found its language and purpose “virtually identical” to its state law predecessors, which imposed absolute liability as stated in Dorrity v. Rapp, 72 N.Y. 307, 311 (1878): “When the facts bring the case within the statute, the duty and liability which the statute imposes is absolute and unqualified.”

    The Court emphasized that the provision’s purpose—shifting the risk of injury from landowners to excavators—remained constant despite recodification. The Court quoted the dissent below stating “neither the wording nor the import of the statute was materially or substantively altered” upon recodification. Treating the provision as merely evidence of negligence would defeat the legislative intent. The Court also found the building’s allegedly poor condition irrelevant to the proximate cause analysis, affecting only the measure of damages.

  • Corcoran v. Village of Saddle River, 16 N.Y.2d 463 (1965): Determining Lateral Support Obligations Under City Administrative Code

    Corcoran v. Village of Saddle River, 16 N.Y.2d 463 (1965)

    When an owner insists on maintaining land higher or lower than the legal regulation, the necessity and permissibility of applying administrative code provisions regarding retaining structures require careful factual inquiry into alternative improvement methods and cost burdens.

    Summary

    This case addresses whether a provision of the New York City Administrative Code regarding lateral support obligations applies when an owner excavates their land, leaving an adjacent property significantly higher. The plaintiff excavated their land to curb level, creating a vertical height difference with the defendant’s property. The plaintiff then demanded the defendant build a retaining wall at her own expense. The court reversed the lower court’s decision, finding that the application of the Administrative Code and the permissibility of such application depended on the specific facts of the case, including whether the plaintiff could have improved their land without such extensive excavation and the reasonableness of the burden placed on the defendant.

    Facts

    Plaintiff acquired land on 75th Street in Queens to construct two-family residences. The property consisted of two parcels separated by defendant’s land. The natural slope of the land was upward from the street, with defendant’s property at a higher elevation. Plaintiff, unable to purchase defendant’s land, excavated their property to street level, leaving defendant’s land significantly elevated above the plaintiff’s property. Plaintiff then demanded that defendant construct a retaining wall to support her property at an estimated cost of $25,000, citing the New York City Administrative Code.

    Procedural History

    Special Term granted summary judgment to plaintiff. The Appellate Division reversed, holding that the Administrative Code provision was inapplicable. The New York Court of Appeals reversed the Appellate Division’s order and remitted the case to the Supreme Court for trial.

    Issue(s)

    Whether the Administrative Code provision requiring an owner maintaining land higher than legal regulation to build a retaining wall applies to the defendant in this case, and whether such application is permissible, considering the specific facts and potential burden on the defendant.

    Holding

    No, the case was remitted because the applicability and permissibility of applying the Administrative Code provision cannot be determined without further factual development regarding alternative methods of improvement and the reasonableness of the burden imposed on the defendant.

    Court’s Reasoning

    The court reasoned that the application of the Administrative Code provision was contingent on further factual findings. It was unclear whether the plaintiff could have improved their land without the extensive excavation. The court considered whether a retaining wall was actually necessary, as opposed to alternative solutions like decline grading. The court also noted a lack of clarity regarding offers by the plaintiff to share the cost of the wall or grading. The court emphasized that applying the Administrative Code as the plaintiff desired could place a disproportionately heavy economic burden on the defendant. The court observed that the record was incomplete and prevented the Court from determining the extent of the offers made by the plaintiff to share the cost of appropriate grading or retaining wall construction between the properties. The Court thus needed more information to decide if the Administrative Code applied and, if so, whether its application was permissible under the circumstances. As the Court stated, ‘If eventually held applicable, as now contended by plaintiff, the provisions of the Administrative Code would impose what appears to be at least a disproportionately heavy economic burden of compliance.’