Violation Of Municipal Ordinance Does Not Impose Absolute Liability And Warrant Summary Judgment For Plaintiff
July, 2010
Plaintiffs owned and occupied a 136 year old building in New York City. Yenem Corp. v. 281 Broadway Holdings, 2010 WL 2572864 (1st Dep’t June 29, 2010). Defendants were the owners, developer and excavator of the adjoining property. “Plaintiffs assert that defendants’ excavation work undermined the foundation, causing the building to lean by approximately nine inches. As a consequence, the Department of Buildings issued a vacate order….” Plaintiffs sought recovery from Defendants for their damages, physical and economic.
NYC Administrative Code Section 27-1031(b)(1)(now Section 28-3309.4), provided, as follows:
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.
Id. at *1. Plaintiffs asserted that although this Administrative Code provision became a municipal ordinance in 1889, it was originally enacted as a State law in 1855 and should thus impose absolute liability upon Defendants. “Plaintiffs sought to obviate the need to determine any factual issues concerning the cause of the damage to the building and the adequacy of precautions taken by defendant to protect the structure.” Id.
The Court discussed the history behind the concept of absolute liability against a defendant when a State law is violated. The Court also discussed case law addressing the proposition that violation of a municipal ordinance only constitutes evidence of negligence. Importantly, the Court noted that in Elliott v. City of New York, 95 N.Y.2d 730, 734 (2001), New York’s Highest Court “emphasized that the critical distinction between state and local law is that a state statute can only be changed by the Legislature, whereas a state administrative code or local ordinance can be modified by a state commissioner or a local government.” Id. at *3.
The Court stated: “Because the City can - and has – amended the Administrative Code provision governing excavation work, it is an equally unsuitable candidate for elevation to the status of a state statute imposing per se negligence or absolute liability.” Id. In the end, the Court concluded:
The imposition of absolute liability and summary judgment disposition are precluded where a trier of fact might find that defendants undertook all necessary precautions to shore and brace the adjoining building, the excavation work was performed without negligence and damages were solely attributable to the building’s dilapidated condition and the excessive forces exerted upon its foundation due to earlier backfilling.” Id. at *5.
Learning Point:
When a building allegedly suffers damages as a result of excavation work at an adjoining structure, if a State law was violated, negligence per se and/or absolute liability may be imposed. However, if only a municipal ordinance was violated, a plaintiff will need to fully establish all elements of a negligence claim.
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