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Encroaching Structure Built to Prevent Excavation-Related Damage to Adjoining Property Is a Trespass

The First Department determined the fact that a property owner [Madison] is strictly liable for damage to an adjoining property [17 East] caused by excavation did not allow the construction of encroaching structures to prevent excavation-related damage to the adjoining property:

The imposition of absolute liability on parties whose excavation work damages an adjoining property places the burden of protecting adjoining property onto those undertaking the excavation work, and the risks thereof, rather than those whose interest in adjoining property is harmed by the work … . It should not be inferred, however, that the transfer of risk to the owner/excavator carries with it a corresponding unfettered right to excavate more than 10 feet below curb level, or that the adjoining property owner must allow underpinning of its property simply because the neighboring property owner undertaking such excavation bears absolute liability for any damage it may cause to the adjoining property … . * * *

Madison did not have the right, in the absence of an agreement with 17 East Owners, to erect permanent structures extending beyond the property line, either above or below the surface, and thus encroaching on 17 East Owners’ property.  Madison 96th Assoc LLC v 17 E 96th Owners Corp, 2014 NY Slip Op 07422, 1st Dept 10-30-14

 

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