K.K. Machine Co., Inc. v. Grillo
Attorneys and Parties
Brief Summary
Construction excavation next to an operating manufacturing facility and whether strict liability applies for damage to adjoining property during municipal sewer replacement work.
The Supreme Court, Queens County, granted separate motions by the City-related defendants and several project consultants/contractors, dismissing the strict liability claims under New York City Building Code § BC 3309.4.
The Appellate Division reversed and denied summary judgment to all moving defendants on the strict liability claims.
Under New York City Building Code § BC 3309.4 [imposes strict or absolute liability for excavation that damages adjoining property and requires the excavator to protect neighboring structures; adjoining owners must grant access (license) and if refused, the duty to protect devolves to them], triable issues of fact remained as to whether plaintiffs actually refused access or assented under conditions allegedly agreed to by the City. Additionally, Arcadis U.S., Inc. and Applemon Engineering, PLLC failed to meet their initial burden to show they did not "cause" the soil or foundation work.
Background
K.K. Machine Co., Inc., led by president Karel Hajek, operates a precision machining facility in Queens. In 2015, the City sought permission to perform underpinning on plaintiffs' property for a sewer replacement project; plaintiffs did not sign and the request was abandoned. In 2019, the City resumed work, opting to install secant piles on City property adjacent to plaintiffs' building. The City’s August 2019 letter requested access to plaintiffs’ property for surveys, photographs, and installation of monitoring points and vibration devices. Plaintiffs replied they would consent if named as additional insureds, and after an October 21, 2019 meeting with City and Arcadis representatives, claimed the contractor verbally promised insurance and protections. The City did not sign plaintiffs’ proposed conditions, did not enter the property, and proceeded with secant pile installation and excavation adjacent to plaintiffs’ property. Plaintiffs sued for property damage allegedly caused by the excavation, asserting strict liability under the Building Code.
Lower Court Decision
The Supreme Court granted separate motions by the City/Department of Buildings/Lorraine Grillo, Arcadis U.S., Inc., Applemon Engineering, PLLC, Northeast Remsco Construction, Inc., and Underpinning & Foundation Skanska, Inc., dismissing strict liability claims under § BC 3309.4 on the theory that plaintiffs refused a duly requested access license, thereby shifting the protection duty to plaintiffs.
Appellate Division Reversal
Reversed on the law. Although the City’s August 2019 letter showed a due request for access, the movants did not eliminate triable issues of fact regarding whether plaintiffs actually refused access; their own submissions raised questions whether plaintiffs assented under conditions the City agreed to. The court also rejected, as an alternative ground for affirmance, Arcadis’s and Applemon’s argument that they were not parties who "caused" the work within § BC 3309.4, because they failed to meet their initial evidentiary burden on that point. All motions for summary judgment on strict liability were denied.
Legal Significance
The decision reinforces the strict or absolute liability framework of § BC 3309.4 for excavation-related damage and clarifies that the adjoining owner’s duty to protect only devolves upon an actual refusal of a duly requested access license. Conditional assent and evidence of agreed protections can preclude summary judgment. It also signals that consultants or engineers cannot avoid strict liability at the summary judgment stage without competent proof that they did not cause the soil or foundation work.
In New York City excavation cases under § BC 3309.4, defendants must conclusively show an actual license refusal to shift protection duties to the adjoining owner; unresolved evidence of conditional consent defeats summary judgment, and non-contractor participants must substantiate that they did not cause the excavation work to escape strict liability.