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Montfort, Healy, McGuire & Salley Secure Victory for Design Architect at the Appellate Division, Second Department

American Sec. Ins. Co. v. Church of God of St. Albans (2015 NY Slip Op 06699)

Partners Donald S. Neumann, Jr. and Michael A. Baranowicz of Montfort, Healy, McGuire & Salley recently secured a victory in the Appellate Division, Second Judicial Department for a design architect who was hired for a church building project in Queens. The project entailed demolishing a pre-existing building and constructing a new two story building on the site. Part of the construction plans also included an excavation that extended to the adjacent property.

The excavation caused the adjoining building to become unstable and at risk of collapse, which led the New York City Department of Buildings to issue a Full Vacate Order. The owners of the adjacent property brought suit against both the design architect and the construction company that performed the work to recover for the damage to their property. The suit alleged common law negligence, breach of contract, and violations of several recently amended sections of the Administrative Code of the City of New York.

The court found that the language of Administrative Code §28-3309.4 imposes “absolute liability upon the ‘person who causes’ an excavation to be made.” However, the court also found that the design architect was not the individual who actually caused the excavation because he neither made the decision to do so, nor did he carry out the physical work. Therefore, he was able to make a prima facie showing that he was free from liability.

The court reasoned that, although the design architect was involved in the discussions regarding the “means and methods to be employed in the excavation,” his contractual obligations relieved him from responsibility for the way in which the excavation was carried out. Additionally, his contractual obligations stated he was “not responsible for… safety precautions taken in connection with the work.”

Accordingly, the Appellate Division reversed the motion court’s order, and held that the motion court erred when it refused to grant summary judgment in favor of the design architect and dismiss the complaint against him.

To read the full case, click here.

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