When an adjoining property owner wants to commence excavation or “break ground,” he or she is often frustrated to discover that it’s not as easy and quick as simply calling over a construction crew and ordering them to start digging. Many things can go wrong during an excavation, including hitting unmapped public utility service lines and causing structural damages to the neighboring buildings as a function of eroding the soil and other natural foundational support neighboring properties rely upon. As is usually the case, the party seeking to excavate usually will have the obligation to construct and maintain what is known as “underpinning” for the benefit of neighboring properties during the duration of the construction.
A redundant critical point in the entire process is the initial letter or notice to the neighboring property owner(s). In New York City, Section 3309.1.1 of the Building Code governs the requirements applicable to the written notice. Section 3309.1.1 requires (among other things) that the notice must describe, “the nature of the work, estimated schedule and duration, details of inspections or monitoring to be performed on the adjoining property, protection to be installed on the adjoining property, and the contact information for the project.” Nassau and Suffolk county towns and villages have nearly identical provisions in their respective building codes.
Parties performing the excavation or underpinning are strictly liable for damages caused to neighboring properties. Courts interpreting Administrative Code § 3309.4 have imposed strict liability on owners, general contractors, and excavation subcontractors who excavate a property in a manner that damages an adjacent property (Yenem Corp. v 281 Broadway Holdings, 18 NY3d 481, 490-491 ; Fagan v Pathe Indus., Inc., 274 App Div 703, 706 [1st Dept. 1949]). Absolute liability applies regardless of the level of care used by the defendants; “[w]hen the facts bring the case within the statute, the duty and liability which the statute imposes is absolute and unqualified.” (Yenem Corp., 18 NY3d at 490).
If you are a property owner and your real property has been damaged as a result of excavation or ineffective underpinning, call us for a confidential and free consultation.