The Second Department, reversing Supreme Court, determined there was a question of fact whether plaintiff had complied with the relevant regulations such that summary judgment was warranted in this excavation-damage action:
New York City Building Code … § BC 3309.4 provides that “[w]henever soil or foundation work occurs, regardless of the depth of such, the person who causes such to be made shall, at all times during the course of such work and at his or her own expense, preserve and protect from damage any adjoining structures, including but not limited to footings and foundations, provided such person is afforded a license in accordance with the requirements of Section 3309.2 to enter and inspect the adjoining buildings and property, and to perform such work thereon as may be necessary for such purpose. If the person who causes the soil or foundation work is not afforded a license, such duty to preserve and protect the adjacent property shall devolve to the owner of such adjoining property, who shall be afforded a similar license with respect to the property where the soil or foundation work is to be made.”
We have held that section 3309.4 imposes strict or absolute liability upon a ” person who causes’ an excavation to be made” … . Nonetheless, on this record, the Supreme Court erred in granting that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against [defendant], as the plaintiff failed to submit any evidence demonstrating that she granted [the defendant] the requisite license under section 3309.4 … or, in the absence of a license, what, if any, actions the plaintiff took to satisfy her duty under section 3309.4 to protect and preserve her property … . Chan v Begum, 2017 NY Slip Op 06425, Second Dept 9-13-17
REAL PROPERTY (NYC, EXCAVATION DAMAGE, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NYC, EXCAVATION PROPERTY DAMAGE, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT)/EXCAVATION DAMAGE (REAL PROPERTY, NYC, PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE PROVISION RE LIABILITY FOR EXCAVATION DAMAGE WERE MET, PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))