Opinion
Index No. 159152/2022
11-07-2022
Eugene Properties LLC, Plaintiff, v. 726 Eighth LLC, Defendant.
Adam Leitman Bailey, P.C., New York, NY (Joanna C. Peck of counsel), for plaintiff. Greenberg, Trager & Herbst, LLP, New York, NY (Evan Wagowski and Matthew Guber of counsel), for defendant.
Unpublished Opinion
Adam Leitman Bailey, P.C., New York, NY (Joanna C. Peck of counsel), for plaintiff.
Greenberg, Trager & Herbst, LLP, New York, NY (Evan Wagowski and Matthew Guber of counsel), for defendant.
GERALD LEBOVITS, J.
This action arises from a construction project being undertaken by defendant, 726 Eighth LLC, on a large site in midtown Manhattan near Times Square. A small part of the project site adjoins a building owned by plaintiff, Eugene Properties LLC. Plaintiff sued, alleging that defendant has taken insufficient precautions to avoid excavation-related damages to its building. Plaintiff seeks a declaratory judgment and damages under the New York City Building Code, and also damages sounding in nuisance.
At the same time it filed suit, plaintiff brought on this motion by order to show cause filed on October 26, 2022. (NYSCEF No. 20 [executed order to show cause].) Plaintiff is seeking injunctive relief that would, among other things, halt all construction by defendant on its entire project site until defendant enters a license agreement with plaintiff that would enable defendant to put in place protective measures against excavation-related damage to plaintiff's building. (Id. at 2.) Plaintiff is also seeking a temporary restraining order that affords similar relief pending the hearing of its injunction motion. (See id.)
This court, after a telephonic conference with the parties, granted a somewhat more limited TRO until October 31, 2022, pending further submissions from the parties on whether to extend that TRO until the hearing on the motion. The parties then stipulated to extend that TRO until the afternoon of November 4, 2022, to allow time for them to engage in settlement negotiations. Those negotiations proved unsuccessful. The parties thereafter submitted the requested letter briefing on whether this court should extend its TRO until the hearing of the motion. (See NYSCEF Nos. 22-31 [letter briefing and exhibits].) Having considered the parties's submissions, this court declines to extend the TRO further.
DISCUSSION
1. Plaintiff contends that the Building Code requires defendant to obtain from plaintiff a license permitting defendant to take steps to protect plaintiff's building-and that absent a license, plaintiff may suffer irreparable injury. (See NYSCEF No. 22 at 1-2.) This court is not persuaded that plaintiff has shown a sufficient likelihood of success on its license-related argument, or a sufficient likelihood of irreparable injury absent execution of a license agreement, to warrant extending the TRO.
Building Code § 3309.4 does not on its face require execution of a license agreement in all instances where soil "that is supporting a footing is excavated, disturbed, or otherwise affected for the purpose of constructing a support of excavation... system," as plaintiff asserts. (Id. at 2.) This provision does require that "[w]henever soil or foundation work occurs," the party causing that work "shall, at all times during the course of the work... preserve and protect from damage any adjoining structures, including but not limited to footings or foundations." (NYC Admin. Code § 28-3309.4.) But § 3309.4 requires an adjoining party to afford the construction party a license only to "perform such work [on the adjoining buildings and property] as may be necessary" to preserve and protect those structures from damage. (Id.) Defendant's letter brief, supported by an affidavit from a licensed engineer, represents that it is fulfilling its protective obligation under the Building Code through a support-wall system built entirely on defendant's side of the property line, such that no entry onto (or under) plaintiff's premises-and thus no entry license-is needed. (See NYSCEF No. 23 at 3-4 [letter brief]; NYSCEF No. 31 at 2-4 ¶¶ 8-14 [engineer's affidavit].)
Additionally, defendant represents that its choice of support-wall system has been specifically approved by the City Department of Buildings-and supports that representation through copies of DOB-stamped engineering drawings. (See NYSCEF No. 23 at 4 [letter brief]; NYSCEF No. 31 at 3 ¶¶ 11-13 [engineer's affidavit], 16, 23 [engineering drawings].) Plaintiff expresses concerns about the possibility of damage to the foundations of its building from the construction of this support wall. (See NYSCEF No. 7 at ¶¶ 17, 24 [affidavit of plaintiff's engineer].) But plaintiff has not established that damage is in fact occurring-let alone that DOB erred to such a degree in approving defendant's plans that this court must step in and halt construction pending the hearing of plaintiff's motion. At most, plaintiff's engineer states in his affidavit that defendant's building of a support wall" could cause building movement and structural damage to Plaintiff's Premises" if defendant does not take proper measures for drilling the pilings of the support wall, removing boulders and other obstructions, and providing for lateral support of plaintiff's property. (Id. at ¶¶ 53-60 [emphasis added].) Plaintiff has not, on this record, established that absent a TRO, defendant's choice of measures to protect plaintiff's property will instead cause plaintiff irreparable injury.
Plaintiff says that the support wall that it has observed defendant constructing "differs substantially... from the plans our engineers recently pulled from the DOB." (NYSCEF No. 22 at 4-5.) Plaintiff does not, however, identify the differences between those plans and its own observations; when its engineers downloaded the referenced plans from the Department of Buildings website; nor what, if any, time lag normally exists between approval by DOB of engineering plans and their posting on the DOB website.
2. Building Code § 3309.16 provides that when, as here, a constructing party is required under § 3309.4.4 to monitor adjacent buildings for construction-related damage, that monitoring must follow a detailed, building-specific "monitoring plan developed by a registered design professional and acceptable to the commissioner" of the Department of Buildings. Plaintiff contends that defendant is not monitoring plaintiff's building for movement, and therefore that defendant is in violation of § 3309.16. (NYSCEF No. 2-3.) Here, too, plaintiff's submissions do not establish the necessary likelihood of success or of irreparable injury. Defendant has provided proof that the monitoring plan to which plaintiff objects was approved by DOB. (See NYSCEF No. 23 at 4-5 [letter brief]; NYSCEF No. 31 at 6 ¶¶ 15-18 [engineer's affidavit], 13 [DOB-stamped drawings describing detailed monitoring plan].) The record as it stands does not provide a basis for this court to take the significant step of second-guessing DOB's expert determination about the adequacy of defendant's monitoring plan-much less to halt construction near plaintiff's building pending a hearing or pending the installation of devices to monitor construction-related vibration and the like.
3. Plaintiff also argues that the "DOB Plans submitted to Plaintiff by Defendant" in 2020 indicate that defendant is underpinning the shared, loadbearing wall between plaintiff's building and the building directly to its north (also known as a "party wall") (NYSCEF No. 22 at 4); but that defendant "is only underpinning 50% of the Party Wall," as opposed to the entire wall (id. at 5). Plaintiff states that "[o]ur professional engineers advise" that, absent a TRO, this construction will interfere with Plaintiff's ability to use the Party Wall in the future to build a vertical extension because Defendant's proposed underpinning creates differential load carrying capacity of the Party Wall." (Id.) This argument in support of extending the TRO suffers from several difficulties.
As an initial matter, this aspect of plaintiff's letter brief is factually unsupported. Plaintiff does not identify the page(s) from the October 2020 version of defendant's DOB plans showing the proposed underpinning that it is characterizing. Nor does the affidavit from plaintiff's engineer, submitted in support of the underlying motion and cited elsewhere in plaintiff's letter brief, discuss the issue of a party wall.
Additionally, defendant's engineer's affidavit disputes that the particular part of the wall that would be affected by defendant's underpinning is, in fact, a party wall. Instead, the affidavit contends, this wall was the product of plaintiff's "one story addition in the rear of its property" and "bears weight on its own independent footing" that is distinct from the remainder of the wall between the two properties. (NYSCEF No. 31 at 4 ¶ 14.) Finally, as defendant points out (NYSCEF No. 23 at 5), plaintiff has not shown that any issues related to the party wall/underpinning will affect "the imminent safety and well-being of the building" so as to warrant extending the prior TRO pending a hearing on plaintiff's motion.
Accordingly, for the foregoing reasons, it is
ORDERED that plaintiff's request on this motion for further interim relief pending the court's hearing of the motion is denied.