Claims involving adjoining land owners have proliferated in the last several years as construction activities in the New York City area have continued to be especially active. One area of concern, especially for builders of town houses and other residences is how to deal with party walls. The First Department, in Ehrenberg v. Regier, 142 A.D.3d 765, 37 N.Y.S.3d 10 (1st Dep’t 2016), addressed various issues of note regarding these structures.
A party wall is a wall between two adjoining properties which exists for the common benefit of both owners. These walls provide for the support of structures on each property and can only be altered by one owner if they do not damage the building owned by the adjacent neighbor. Each owner of a party wall owns it to the extent the wall is on his property, and each owner has an easement of use and support over the wall to the extent it is on the neighbor’s property.
In Ehrenberg, the party wall in question dated to the 1840’s. After a bulge was found in a section of the party wall the Ehrenbergs removed and replaced a portion of the wall. After this work was performed it was discovered that the party wall was damaged. The Ehrenbergs commenced a legal action alleging that the damage was the result of the Reiger’s negligent maintenance of the Reiger’s side of the party wall. Reiger counterclaimed, alleging that the reconstruction and repair to the party wall undertaken by the Ehrenbergs had caused the damage.
The First Department noted the general rule that neither owner may subject a party wall to a use that does not similarly benefit the owner of the neighboring property. It also noted that liability might be imposed where, during renovation, the party wall is altered to the detriment of the neighbor.
The First Department addressed whether the Ehrenbergs could be liable for the negligent acts of the independent contractor it hired to perform the work in question. The Ehrenbergs argued that because the work was not dangerous or extraordinary, it could not constitute a nondelegable duty, and therefore they could not be liable for its contractor’s negligence.
The First Department disagreed, holding that the Ehrenbergs could be liable for weakening the party wall, even if it did not breach a duty of care to Reiger. While the Ehrenbergs would not be absolutely liable for an “uncontrollable accident or a third party’s negligence,” the Ehrenbergs must ensure that the party wall will not pose a danger or nuisance to its neighbor. Presumably, the court’s language was intended to mean that the Ehrenbergs could be liable for the negligence of its contractor.
In reaching this holding the First Department relied on a 19th century Court of Appeals case, Negus v. Becker, 143 N.Y. 303 (1894). In that case, adjoining neighbors jointly paid for the construction of a party wall for the mutual convenience and benefit of both properties. Though both parties paid for the initial construction of the wall, the plaintiff initiated the construction of the wall and built it two stories high in connection with its building. Thereafter, the Defendant hired a contractor to extend the wall to a third story (which was within Defendant’s legal rights and within the structural viability of the initial wall). During such construction, and without any negligence of the contractor or defendant, plaintiff’s roof was damaged. The lower courts found that the defendant was responsible for such damage, despite there being no negligence on behalf of defendant or its contractor. The Court of Appeals, however, disagreed and reversed the judgment, finding that if, “in the lawful use of one’s property, injury is occasioned to an adjacent owner, which the exercise of due care could not have prevented, there is no remedy.” Accordingly, because there was damage, but no wrong, defendants were not liable to plaintiff. On the other hand, if an adjacent owner did not exercise due care, it presumably would be legally responsible for any damages.
The Negus standard appears to be inconsistent with the holding in Ehrenberg, which stated that the property owner would be liable for weakening a party wall “regardless of any care in performing the work” (citing Bicak v. Runde, 78 Misc. 358, 138 N.Y.S. 413 (App Term 1st Dept 1912) and Alberti v. Emigrant Industrial Savings Bank, 179 Misc. 1021, 43 N.Y.S.2d 320 (Sup. Ct. Bronx Co. 1942)). In any event, the Ehrenberg decision indicates that the current law regarding the responsibility and potential liability for damages to party walls is still not crystal clear.