Yenem Corp. v. 281 Broadway Holdings
Decision Date | 29 June 2010 |
Citation | 904 N.Y.S.2d 392,76 A.D.3d 225 |
Parties | 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. |
Court | New York Supreme Court — Appellate Division |
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.
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 structuralcondition 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."
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 AdministrativeCode "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] [ ] ). 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]: In Elliott, the plaintiff argued that because the Administrative Code had been recodified by the New YorkState 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 "acknowledgethat 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 Codeprovisions having their origin in state law, the Court expressly declined to accord such status to the provision before it. One salient feature of a state law, said the Court, is that once it is enacted by the Legislature, it "cannot be changed or varied...
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