Court Imposes Strict Liability Under NYC Excavation Ordinance

Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.3d 481 (N.Y. 2012)

On February 14, 2012 the New York Court of Appeals held that former Administrative Code of the City of New York § 27-1031(b)(1), a municipal ordinance (“the Ordinance”), triggers strict liability for defendants who cause damage to adjoining property through excavation work.

In Yenem Corp., Defendants purchased a lot adjacent to a building located at 287 Broadway and began a construction project requiring an excavation eighteen feet below street level.  As a result, 287 Broadway shifted out of plumb; eventually, the Department of Buildings deemed the building unsafe for occupancy.  The plaintiffs, the owner and a tenant of 287 Broadway, sued for damages resulting from the excavation and moved for summary judgment under the Ordinance, which states that “when an excavation is carried to a depth of more than ten feet below the legally established curb level the person who causes such excavation shall at all times and at his or her own expense, preserve and protect from injury adjoining structures”.

The Court of Appeals noted that, as a general rule, violation of a state statute that imposes a specific duty constitutes negligence per se, while violation of a municipal ordinance is only evidence of negligence.  The Court went on to hold, though, that Administrative Code § 27-1031(b)(1) is an exception to this general rule because it has its origin in state law.  Specifically, the ordinance originated from an 1855 special law imposing absolute liability, and the policy considerations underpinning the 1855 special law remain the same.  Accordingly, the Court held that violation of the Ordinance constitutes per se negligence.

It should also be noted that effective July 1, 2008, the Ordinance was amended.  Its equivalent provision is now contained in New York Administrative Code, tit 28, ch 33, § 3309.4.  The Court declined to interpret the new provision, as it was not before the Court.