When can an architect or engineer be held responsible for damage to a neighboring building caused by excavation for a project they designed? That question was addressed by two recent appellate division decisions, in which the courts considered the level of the design professional’s involvement, and the theory under which they are being sued.
The two most common claims asserted by adjacent owners against design professionals in this situation are for negligence and breach of Administrative Code §28-3309.4, which imposes absolute liability upon a person who causes an excavation to be made. (While courts generally treat violation of a municipal ordinance, such as the Administrative Code, as only some evidence of negligence, Administrative Code §28-3309.4 in particular is treated differently because it was originally a State statute. The New York Court of Appeals has held that its violation can be the basis for absolute liability. See Yenem Corp. v. 281 Broadway Holdings, 18 N.Y.S.3d 481, 941 N.Y.S.2d 20 (2012).)