Yenem Corp. v. 281 Broadway Holdings

Citation904 N.Y.S.2d 392,76 A.D.3d 225
PartiesYENEM CORP., Plaintiff-Appellant, v. 281 BROADWAY HOLDINGS, et al., Defendants-Respondents. [And Other Actions] Randall Co., LLC, Plaintiff-Respondent, v. 281 Broadway Holdings, et al., Defendants-Appellants, John Doe, et al., Defendants. 281 Broadway Holdings LLC, et al., Third-party Plaintiffs-Appellants, v. Hunter Atlantic, Inc., Third-party Defendant-Respondent, Geotechnical Services Corp., et al., Third-party Defendants.
Decision Date29 June 2010
CourtNew York Supreme Court Appellate Division
904 N.Y.S.2d 392
76 A.D.3d 225


YENEM CORP., Plaintiff-Appellant,
v.
281 BROADWAY HOLDINGS, et al., Defendants-Respondents.
[And Other Actions]
Randall Co., LLC, Plaintiff-Respondent,
v.
281 Broadway Holdings, et al., Defendants-Appellants,
John Doe, et al., Defendants.
281 Broadway Holdings LLC, et al., Third-party Plaintiffs-Appellants,
v.
Hunter Atlantic, Inc., Third-party Defendant-Respondent,
Geotechnical Services Corp., et al., Third-party Defendants.


Supreme Court, Appellate Division, First Department, New York.

June 29, 2010.

904 N.Y.S.2d 393

Jaroslawicz & Jaros, LLC, New York (David Jaroslawicz of counsel), for Yenem Corp., appellant.

Shafer Glazer, LLP, New York (David A. Glazer and Mika M. Mooney of counsel), for 281 Broadway Holdings LLC and The John Buck Company, respondents/appellants.

Molod Spitz & DeSantis, P.C., New York (Marcy Sonneborn and Alice Spitz of counsel), for Hunter Atlantic, Inc., respondent.

Weg & Myers, P.C., New York (Dennis T. D'Antonio and Joshua L. Mallin of counsel), for Randall Co., LLC, respondent.

PETER TOM, J.P., JOHN T. BUCKLEY, JAMES M. CATTERSON, HELEN E. FREEDMAN, SHEILA ABDUS-SALAAM, JJ.

TOM, J.P.

76 A.D.3d 226

This appeal presents the narrow issue of whether a municipal ordinance imposes absolute liability for its violation so as to warrant summary judgment in favor of plaintiffs, the owner and tenant of the subject premises, for damage resulting from defendants' excavation on the adjacent property. The controversy is governed by this Court's decision in Coronet Props. Co. v. L/M Second Ave., 166 A.D.2d 242, 560 N.Y.S.2d 444 [1990], which is wholly dispositive. There is evidence, in the form of engineers' affidavits and reports, that the subject building was in poor structural

76 A.D.3d 227
condition prior to the commencement of the excavation work (including a south wall out of plumb by four inches and large cracks in the south and west walls), that defendants took necessary measures to protect the foundation and that the building had been shored and temporarily braced. The record thus 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.

Defendants undertook excavation on property adjoining a 136-year-old building located at 287 Broadway. Plaintiff Randall Co. LLC is the owner of the building, and plaintiff Yenem Corp. operated a pizzeria on the premises. 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 that remains in effect. Yenem commenced an action for economic loss against defendant 281 Broadway Holdings LLC, the owner and developer of the adjacent property, its parent, defendant John Buck Company, and Hunter-Atlantic, Inc., the excavator for the project. Shortly thereafter, Randall commenced its own action against 281 Broadway and John Buck for damages allegedly caused by the excavation.

It is undisputed that the work was at all times subject to the requirements of Administrative Code of the City of New York § 27-1031(b)(1) (now Administrative Code § 28-3309.4), which imposes liability on an owner and contractor for damage to adjacent structures caused by major excavation. The municipal ordinance 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."
904 N.Y.S.2d 394

In their respective motions for summary judgment, 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 defendants to protect the structure. Plaintiffs invoked case law holding that the Administrative

76 A.D.3d 228
Code "imposes absolute liability upon any one who causes an excavation to be made more than 10 feet below the curb level without taking adequate preliminary precautions to protect 'adjoining' structures" ( Victor A. Harder Realty & Constr. Co. v. City of New York, 64 N.Y.S.2d 310, 318 [1946] [imposing liability after trial] ). In the Yenem action, Supreme Court (Carol Edmead, J.), in a decision issued from the bench, denied Yenem's motion for partial summary judgment on the issue of liability, noting that a violation of "[A]dministrative [C]ode Section 27-1031, and other sections like that in the [A]dministrative [C]ode, constitute some evidence of negligence only ... it doesn't result in a finding of liability and a resulting summary judgment, it just doesn't go that far."

In support of its motion for partial summary judgment on the issue of liability, Randall submitted an engineer's affidavit attesting that the building was stable prior to the commencement of excavation and that after the work began the structure tilted dangerously to the south despite internal and external bracing installed by defendants. Defendants opposed the motion and, inter alia, sought leave to amend their answer to add counterclaims against Randall. As pertinent to this appeal, Supreme Court (Charles E. Ramos, J.) reached the opposite conclusion with respect to absolute liability under Administrative Code Section 27-1031(b)(1), summarily awarding judgment as to liability to Randall and denying defendants leave to amend the answer.

Plaintiffs take the position that because the governing Administrative Code provision was originally enacted as an 1855 state law imposing absolute liability ( see Dorrity v. Rapp, 72 N.Y. 307, 310-311 [1878] ), it should continue to be construed as imposing a duty and liability that are absolute, despite being relegated to a municipal ordinance since 1899, when the state statute was repealed and its terms incorporated into the Administrative Code. Plaintiffs' view is inconsistent with appellate authority governing both the power of a municipality to impose tort liability and the nature of the liability imposed by Administrative Code section 27-1031(b)(1).

The general principle is stated in Elliott v. City of New York, 95 N.Y.2d 730, 734, 724 N.Y.S.2d 397, 747 N.E.2d 760 [2001] [internal citations omitted]: "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." In Elliott, the plaintiff argued that because the Administrative Code had been recodified by the New York

76 A.D.3d 229
State Legislature, the controlling provision should be regarded as a state statute and its violation as negligence per se. However, the Court of Appeals stated that in deciding whether such treatment is appropriate, the origin of the provision should be considered ( id. at 733, 724 N.Y.S.2d 397, 747 N.E.2d 760). It concluded that recodification by the Legislature did not provide Administrative Code provisions with the force of state law ( id. at 735, 724 N.Y.S.2d 397, 747 N.E.2d 760), stating that, "for tort purposes, even a specific duty provision in the Administrative Code must be treated as any other local enactment if its status is that of a local law" ( id. at 736, 724 N.Y.S.2d 397, 747 N.E.2d 760). The Court then proceeded, in dictum, to "acknowledge
904 N.Y.S.2d 395
that certain sections of the Administrative Code have their origin in State law and, as such, they might be entitled to statutory treatment in tort cases" (citing Guzman v. Haven Plaza Hous. Dev. Fund Co., 69 N.Y.2d 559, 565 n. 3, 516 N.Y.S.2d 451, 509 N.E.2d 51 [1987] [emphasis added] ).

It should be noted that Elliott dealt with the obverse proposition to the one advanced by plaintiffs on this appeal. Elliott holds only that a municipal ordinance does not gain the force of state law merely because it is included in a municipal code enacted by the Legislature. So much is clear from the expressed concern that "characterizing the vast multitude of ordinances that have been adopted by New York City as State statutes would result in considerable fragmentation and uncertainty in the application of the common law of our State" ( id. at 736, 724 N.Y.S.2d 397, 747 N.E.2d 760).

The matter at bar presents the question of 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 Elliott 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 734, 724 N.Y.S.2d 397, 747 N.E.2d 760; see e.g. Major v. Waverly & Ogden, 7 N.Y.2d 332, 336, 197 N.Y.S.2d 165, 165 N.E.2d 181 [1960] [state building code] ). The Elliott Court regarded violation of the Administrative Code provision before it as only evidence of negligence, not negligence per se, reasoning that "since the City retains the authority to amend or repeal its Administrative Code provisions ... without the need of State legislative action, we decline to transform the status of this provision from that of a local enactment to a State statute" ( Elliott at 736, 724 N.Y.S.2d 397, 747 N.E.2d 760).

To recapitulate, while the Elliott Court acknowledged the potential for statutory treatment of those Administrative Code

76 A.D.3d 230
provisions having their origin in state law, the Court expressly declined to accord such status to the provision before it. One...

To continue reading

Request your trial
8 cases
  • Gerrish v. 56 Leonard LLC
    • United States
    • New York Supreme Court Appellate Division
    • 16 Febrero 2017
    ...of compelling circumstances so as to warrant departure from the doctrine of stare decisis" (Yenem Corp. v. 281 Broadway Holdings, 76 A.D.3d 225, 232, 904 N.Y.S.2d 392 [1st Dept.2010] citing Eastern Consol. Props., 95 N.Y.2d 785, 710 N.Y.S.2d 840, 732 N.E.2d 948, revd. 18 N.Y.3d 481, 941 N.Y......
  • Am. Sec. Ins. Co. v. Church of God of St. Albans
    • United States
    • United States State Supreme Court (New York)
    • 25 Octubre 2012
    ...its recodification as a local law or in the century thereafter ( see Yenem Corp. [ v. 281 Broadway Holdings], 76 A.D.3d [225] at 239, 904 N.Y.S.2d 392). Even more important, its original purpose of shifting the risk of injury from the injured landowner to the excavator of adjoining land has......
  • 8930 Sutphin Blvd. LLC v. West End Constr. Corp.
    • United States
    • United States State Supreme Court (New York)
    • 12 Enero 2012
    ...condition and the excessive forces exerted upon its foundation due to earlier backfilling.Yenem Corporation v. 281 Broadway Holdings, 76 A.D.3d 225, 232 (lst Dept. 2010). Defendant 8930 correctly argues that summary judgment may be precluded if the damages were solely due to the Tolis Build......
  • Yenem Corp. v. 281 Broadway Holdings
    • United States
    • New York Court of Appeals
    • 14 Febrero 2012
    ...Yenem action and reversed the order granting plaintiff summary judgment in the Randall action ( see Yenem Corp. v. 281 Broadway Holdings, 76 A.D.3d 225, 231, 904 N.Y.S.2d 392 [1st Dept.2010] ). The court rejected plaintiffs' argument that because section 27–1031(b)(1) was originally enacted......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT