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DEFENDANTS DID NOT REQUEST THAT PLAINTIFFS GRANT A LICENSE FOR EXCAVATION WORK NEXT DOOR TO PLAINTIFFS’ BUILDING; NYC BUILDING CODE 3309.4 IMPOSES STRICT LIABILITY FOR DAMAGE CAUSED BY SUCH EXCAVATION WORK; OVERRULING PRECEDENT, PLAINTIFFS DID NOT NEED TO SHOW EITHER THAT A LICENSE WAS GRANTED OR THAT PLAINTIFFS TOOK OTHER STEPS TO PROTECT THEIR PROPERTY TO BE ENTITLED TO SUMMARY JUDGMENT FOR DEFENDANTS’ VIOLATION OF BUILDING CODE SECTION 3309.4 (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Leventhal, overruling precedent, determined plaintiffs were entitled to summary judgment in this action alleging damage to plaintiffs’ building caused by defendants’ excavation for a new building next door. The New York City Building Code (BC) section 3309.4 imposes strict liability for damage caused by such excavation work. Here the defendants did not ask plaintiffs for a license in accordance with BC 3309.4 and no license was granted by the plaintiffs. Prior decisions held a plaintiff must show it granted a license for the work, or otherwise took steps to protect the property, before the plaintiff would be entitled to summary judgment on an action alleging a violation of BC 33309.4. Those decisions should no longer be followed:

We hold that where, as here, a plaintiff presents evidence showing, prima facie, that no request for a license was made to the plaintiff in accordance with section BC 3309 before the excavation work began, a plaintiff moving for summary judgment on the issue of liability on a cause of action alleging a violation of section BC 3309.4 need not demonstrate, prima facie, that the plaintiff granted the requisite license, or, in the absence of a license, what, if any, actions it took to protect its premises. 211-12 N. Blvd. Corp. v LIC Contr., Inc., 2020 NY Slip Op 04134, Second Dept 7-22-20

 

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