Earlier this year the New York City Department of Buildings had a No-Penalty Retaining Wall Inspection Program, in which homeowners could call 311 to request an inspection of their retaining wall without the penalty of violations.
Retaining walls are important because they are designed to hold back soil that would move to a more natural slope or incline if the wall was not in place. Were that to occur, damage could be sustained not only to the building’s foundation, but to the foundation of an adjacent property. Additionally, there is a potential for injury or even death where construction work is being done below street level of the adjacent property and a retaining wall collapses.
Similarly, when major excavation causes damage to adjacent structures, Administrative Code of the City of New York 27-1031(b)(1) (now Administrative Code 28-3309.4) imposes liability on an owner and contractor for such damage. In Yenem Corp. v. 281 Broadway Holdings, 76 A.D.3d 225,904 N.Y.S.2d 392(1 Dept. June 29th, 2010), the issue was whether this section of the Administrative Code, initiallya state statute but subsequently repealed and simultaneously incorporated into the municpal code,imposes absolute liability, or whether a plaintiff must establish negligence.
In Yenem, a pizzeria situated in a 136-year-old building located at 287 Broadway in Manhattan was ordered by the New York City Department of Buildings to vacate its premises when excavation of the adjoining property undermined the buildings foundation, causing the building to lean by approximately nine inches. The operator of the pizzeria sued the owner of the adjacent property and contended that the Administrative Code imposed absolute liability on the adjoining landowner for not shoring up the building. If correct, the adjoining landowner would be absolutely liable for the economic loss the pizzeria sustained without the pizzeria having to prove negligence.
Administrative Code 27-1031(b)(1) provides: When an excavation is carried to a depth more than ten feet below the legally established curb level the person who causes such excavation to be made shall, at all times and at his or her own expense, preserve and protect from injury any adjoining structures, the safety of which may be affected by such part of the excavation as exceeds ten feet below the legally established curb level provided such person is afforded a license to enter and inspect the adjoining buildings and property.
This section of the Administrative Code is derived from state legislation from 1855 when the Legislature enacted section 1 of chapter 6 of the Laws of the State of New York and changed the common law regulating adjoining lands and excavation to protect adjoining structures as well as the land in New York County and Brooklyn. Chapter 6 was subsequently re-enacted pursuant to the Consolidation Act, chapter 410, section 474 of the Laws of 1882 but the wording of the statute remained essentially the same. Subsequently, the state statute was repealed and simultaneously incorporated into the City’s Administrative Code. As a state statute, its violation would constitute negligence per se and invoke absolute liability.
As explained in Elliott v. City of New York (95 N.Y.2d 730, 734 : As a rule, violation of a State statute that imposes a specific duty constitutes negligence per se, or may even create absolute liability. By contrast, violation of a municipal ordinance constitutes only evidence of negligence. The issue in Yenem is whether a provision originally enacted as a state statute retains its status as such even though the Legislature has repealed the statute and simultaneously incorporated the provision into a municipal code.
The Appellate Division, First Department held that the municipal ordinance did not retain its status once the state statute was repealed, and there is not absolute liability. The court denied the pizzeria operators motion for summary judgment, holding that the record presents issues of fact concerning whether defendants’ activities were the cause of the damages alleged and whether defendants exercised the requisite degree of care in performing the work. There was no question in Yenem that the adjoining landowner had excavated more than ten feet below curb level.
However, there was evidence, in the form of engineers’ affidavits and reports, that raised issues as to whether the adjoining buildings foundation was undermined due to the excavation or to pre-existing conditions of the subject building. The record contained affidavits from engineers asserting that numerous steps taken to ensure adequate protection of the building foundation during excavation, and also enumerating possible defects in the building that might have caused or contributed to its becoming unsound.
Among other things, the engineers opined that the building was in poor condition prior to commencement of the excavation work and that various factors could have contributed to the damages, including, the structure was already out of plumb approximately four inches to the south, there were preexisting cracks in the south and west walls, parapets were out of plumb with cracks and open mortar joints, the building lacked a lateral support system, soil stresses were higher than typically allowable as a result of a back-filled sub-cellar, and the original foundations required remediation.
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