Summary
In Coronet Props. Co. v L/M Second Ave. (166 AD2d 242, 243 [1st Dept 1990]), this Court, while largely misinterpreting precedent as detailed below, nevertheless correctly relied on Harder to recognize that section 27-1031 (b) (1) imposes absolute liability upon both the property owner and contractor performing excavation of more than 10 feet which causes damage to the adjacent property.
Summary of this case from Yenem Corp. v. 281 BroadwayOpinion
October 11, 1990
Appeal from the Supreme Court, New York County (William Davis, J.).
Plaintiffs, who commenced this action for property damages allegedly caused by defendants during excavation and related activities, moved for partial summary judgment based on Administrative Code of the City of New York § 27-1031, which provides that one who excavates to a depth of more than 10 feet below curb level must, at his own expense, preserve and protect any adjoining structures from injury.
The motion was properly denied. While Administrative Code § 27-1031 has been held to impose absolute liability (see, Harder Realty Constr. Co. v. City of New York, 64 N.Y.S.2d 310, 318; Levine v. City of New York, 249 App. Div. 625) upon both the owner and contractor who perform the excavation (Palermo v. Bridge Duffield Corp., 154 N.Y.S.2d 288, affd 3 A.D.2d 863), in these and other cases relied upon by plaintiffs, liability was determined after trial upon findings that defendants had failed to take adequate precautions to protect adjoining structures and that defendants' activities were the proximate cause of the damage (see, Harder Realty Constr. Co. v. City of New York, supra). These factual issues, together with evidence of the poor condition of the allegedly damaged buildings and of other possible causes of the damage, preclude summary disposition of this matter.
The IAS court was also correct in denying the motion to increase the ad damnum clause and in precluding proof of damages in excess of the existing demand, given the reason for the three-year delay and attendant prejudice to the defendants. (See generally, Loomis v. Civetta Corinno Constr. Corp., 54 N.Y.2d 18, rearg denied 55 N.Y.2d 801.)
Concur — Ross, J.P., Rosenberger, Asch, Kassal and Wallach, JJ.