You are here: / / PLAINTIFF DID NOT DEMONSTRATE THE REQUIREMENTS OF THE NYC BUILDING CODE...
,

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).

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))

You might also like
Plaintiff Could Not Demonstrate Valid “Nail and Mail” Service
Under the Facts, the Merger Doctrine Precluded Convictions on Both Kidnapping and Burglary Counts/Statements and Lineup Identification Made after Defendant Invoked His Right to Counsel Should Have Been Suppressed
Order of Protection Reversed–Family Court Did Not Have Subject Matter Jurisdiction—Party Ordered to Stay Away Was Not Related to, a Member of the Household of, or in an Intimate Relationship With, the Subject of the Order of Protection
The Unjustified Denial of Defense Counsel’s Request to Withdraw a Peremptory Challenge Was, Under the Facts, Subject to a Harmless Error Analysis
THERE WAS NO OBJECTIVE SUPPORT FOR PLAINTIFF BUS PASSENGER’S CLAIM THE MOVEMENT OF THE BUS WHICH CAUSED HER TO FALL WAS “UNUSUAL AND VIOLENT” (SECOND DEPT).
PLAINTIFFS’ COMPLAINT DID NOT STATE PRIVATE AND PUBLIC NUISANCE CAUSES OF ACTION BASED UPON SINKHOLES ON PLAINTIFFS’ LAND WHICH ALLEGEDLY RESULTED FROM THE FAILURE OF A BULKHEAD ON DEFENDANT’S PROPERTY (SECOND DEPT).
GOOD CAUSE FOR A FIVE-YEAR EXTENSION OF AN ORDER OF PROTECTION WAS DEMONSTRATED, CRITERIA EXPLAINED.
THE JUDGE SHOULD NOT HAVE DELEGATED THE AUTHORITY TO DETERMINE FATHER’S PARENTAL ACCESS TO THE PETITIONER, THE DECEASED MOTHER’S COUSIN, IN THIS GUARDIANSHIP CASE (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

COVENANT PROHIBITING CONSTRUCTION OF A COMMERCIAL GARAGE DID NOT RUN WITH THE... SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN AWARDED TO...