The Court of Appeals recently issued a decision in Yemen Corp. v. 281 Broadway Holdings addressing the Administrative Code of the City of New York section 27-1031(b).  Importantly, the Court determined that the statute imposes absolute liability on owners and contractors whose excavation work causes damage to an adjoining property.  Yemen is a property damage case that involved allegations that the defendant’s excavation (18 feet below curb level) shifted the plaintiff’s building out of plumb due to undermining of the existing footings and a loss of soil.  

Administrative Code 27-1031(b) provides:

When an excavation is carried to a depth of 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.

In effect, this statute finds the duty to protect adjacent buildings during excavation to be absolute and unqualified.  Accordingly, in New York City, those who undertake excavation work rather than those whose interests and neighboring land is harmed by it should bear the cost if damage occurs.  The fact that a building may be in poor condition will not raise an issue of fact as to causation under the statute, although it is still relevant with respect to the measure of damages.  

Thanks to Bill Kirrane for his contribution to this post.

For more information about this post, please contact Nicole Brown at .