In USAA Casualty Insurance Co., as Subrogee v. Permanent Mission Of The Republic Of Namibia, --- F.3d ---, 2012 WL 1889409 (May 25, 2012), the Permanent Mission of the Republic of Namibia to the United Nations was sued for the $397,730.00 worth of damage to an adjoining property from a construction site accident caused by its alleged failure to comply with Section 3309.8 of the New York City Building Code (“the Building Code”). The Mission claimed that it was immune from suit under the Foreign Sovereign Immunities Act (“FSIA”). The Second Circuit for the U.S. Court of Appeals not only rejected the claim of immunity for damages caused by the Mission’s negligence, but also held that the Mission had a nondelegable duty to the adjoining landowner, meaning that it was liable even if the damage was caused by work of the contractor or the subcontractor.
The Republic of Namibia made the decision to house the chancery, or base of operations, of its Permanent Mission to the United Nations in a Manhattan townhouse located at 135 E. 36th Street. The Mission commissioned extensive interior construction in order to render the Building suitable for a diplomatic mission, and hired a general contractor, which hired a subcontractor, to perform the proposed construction.
During construction, while the subcontractor’s employees were pouring a reinforced concrete wall in the interior of the Building alongside the existing party wall separating it from the adjacent townhouse, the party wall collapsed, causing substantial damage to the neighbor, Adelman's, property. His insurer, USAA Casualty Insurance Co. (“USAA”), paid Adelman $397,730.00 for his damages and sued the Mission to recover what it paid.
USAA alleged that the Mission had violated section 3309.8 of the New York City Building Code by, among other things, “failing to shore up the common wall.”
In pertinent part, section 3309.8 states: When any construction or demolition operation exposes or breaches an adjoining wall, including load bearing and non load-bearing walls as well as party walls and non party walls, the person causing the construction or demolition operation shall, at his or her own expense, perform the following: (1) Maintain the structural integrity of such walls, have a registered design professional investigate the stability and condition of the wall, and take all necessary steps to protect such wall.
The court held that the failure to comply with a duty imposed by the Building Code is, at a minimum, evidence of negligence and can give rise to tort liability under New York law, and the alleged failure of the Mission to protect the party wall was a breach of the duty imposed upon it by the Building Code.
This decision, coincidentally or not, comes during the New York City Buildings Department’s 8th annual No-Penalty Retaining Wall Inspection Program. The No-Penalty Retaining Wall Inspection Program was launched in 2005 following the collapse of a retaining wall above the Henry Hudson Parkway.
Under the program, New Yorkers can request a free inspection of their retaining wall without the threat of receiving a violation if the wall is found to be in poor condition. Department inspectors will examine a wall’s structural conditions to check if there is any bulging, displaced material or if the wall is leaning. If repairs are needed, the Department will defer issuing violations to allow property owners time to take corrective action. However, if dangerous conditions are found, the Department will take immediate action to make sure the unsafe conditions are corrected as soon as possible.
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