DSSR REALTY CORP v. Triborough Construction Services, Inc., respondent, et al., defendant. (2026)

DECISION & ORDER

In an action to recover damages for injury to property, the plaintiffs appeal, and the defendant President SAI II, LLC, cross-appeals, from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated January 17, 2023.  The order, insofar as appealed from, denied those branches of the plaintiffs' motion which were for summary judgment on the issue of liability against the defendants President SAI II, LLC, and Triborough Construction Services, Inc. The order, insofar as cross-appealed from, denied the motion of the defendant President SAI II, LLC, for summary judgment dismissing the complaint insofar as asserted against it as time-barred.

ORDERED that the order is reversed insofar as appealed from, on the law, and those branches of the plaintiffs' motion which were for summary judgment on the issue of liability against the defendants President SAI II, LLC, and Triborough Construction Services, Inc., are granted;  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs payable by the defendants President SAI II, LLC, and Triborough Construction Services, Inc.

The plaintiff DSSR Realty Corp. owns real property located on Union Street (hereinafter the Union Street property), and the plaintiff Ortov Lighting, Inc., owns an electrical supply manufacturing and retail business that operates out of the Union Street property.  In or around February 2016, the defendant Triborough Construction Services, Inc. (hereinafter Triborough), commenced an excavation project on a property located on President Street (hereinafter the President Street property), which is adjacent to the Union Street property and is owned by the defendant President SAI II, LLC (hereinafter President).

In May 2020, the plaintiffs commenced this action against President and Triborough, and another defendant.  The complaint alleged that the Union Street property was damaged as a result of the negligent excavation at the President Street property and that the defendants violated provisions of the Administrative Code of the City of New York and the New York City Building Code, requiring those who conduct excavation activities on their property to preserve and protect adjacent properties from damage.  Following the completion of discovery, the plaintiffs moved, inter alia, for summary judgment on the issue of liability against President and Triborough.  President cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against it as time-barred.  In an order dated January 17, 2023, the Supreme Court, inter alia, denied the motion and the cross-motion.  The plaintiffs appeal, and President cross-appeals.

The Supreme Court should have granted those branches of the plaintiffs' motion which were for summary judgment on the issue of liability against President and Triborough.  New York City Building Code (Administrative Code of City of NY, tit 28, ch 7) § BC 3309.4 imposes strict or absolute liability upon a “person who causes an excavation to be made” (American Sec. Ins. Co. v Church of God of St. Albans, 131 AD3d 903, 905 [internal quotation marks omitted];  see Yenem Corp. v 281 Broadway Holdings, 18 NY3d 481, 489;  Chan v. Begum, 153 AD3d 1223, 1225).  Generally, an action to recover damages for injury to real property must be commenced within three years of accrual (see CPLR 214[4];  Verizon N.Y. Inc. v Consolidated Edison, Inc., 127 AD3d 621, 621–622).  A cause of action alleging property damage accrues when the damage is apparent (see Listwon v 500 Metro.  Owner, LLC, 188 AD3d 1028, 1029–1030;  Russell v Dunbar, 40 AD3d 952, 953).

Here, the plaintiffs demonstrated, prima facie, that President and Triborough caused an excavation to be made pursuant to a license granted under New York City Building Code § BC 3309.4 and that the excavation proximately caused damage to the Union Street property (see NY City Building Code § BC 3309.4;  211–12 N. Blvd. Corp. v LIC Contr., Inc., 186 AD3d 69, 77–78;  Reiss v Professional Grade Constr.  Group, Inc., 172 AD3d 1121, 1123).  The plaintiffs' evidence included, among other things, an affidavit from a professional engineer whose investigation on the plaintiffs' behalf concluded that the excavation on the President Street property had caused damage to the Union Street property.  Further, the plaintiffs' submissions demonstrated, prima facie, that the Union Street property continued to sustain damages within the statutory period as a result of the ongoing excavation project (see generally Lewis v Steiner, 244 AD3d 714, 715;  Listwon v 500 Metro.  Owner, LLC, 188 AD3d at 1030).

In opposition, President and Triborough failed to raise a triable issue of fact.  The allegedly poor preexisting condition of the Union Street property does not factor into a proximate cause analysis under New York City Building Code § BC 3309.4 but merely raises an issue of fact as to damages (see Yenem Corp. v 281 Broadway Holdings, 18 NY3d at 491;  211–12 N. Blvd. Corp. v LIC Contr., Inc., 186 AD3d at 81–82;  Reiss v Professional Grade Constr.  Group, Inc., 172 AD3d at 1123).  Moreover, submissions of President and of Triborough failed to adequately refute the affidavit of the plaintiffs' expert that the building continued to sustain damages within the applicable three-year period (see generally Rolland v New Prospects of Brooklyn, Inc., 128 AD3d 939, 940).  Accordingly, the Supreme Court should have granted those branches of the plaintiffs' motion which were for summary judgment on the issue of liability against President and Triborough.

For the same reasons, the Supreme Court properly denied President's cross-motion for summary judgment dismissing the complaint insofar as asserted against it as time-barred.

The plaintiffs' remaining contentions either need not be reached in light of our determination or are without merit.

CHAMBERS, J.P., CHRISTOPHER, VOUTSINAS and HOM, JJ., concur.