Greenspoon Marder Construction Team Secures Significant Legal Victory in Adjacent Property Damage Case

Feb 12, 2025

New York – February 12, 2025 – Greenspoon Marder LLP’s Construction practice group, led by partner Carol Sigmond, senior counsel Joshua Deal, and associate Christopher Luehs, has achieved a significant legal victory on behalf of 1992 Third Realty LLC in a complex adjacent property damage action. The Supreme Court of the State of New York, New York County, has partially granted a motion to dismiss, notably dismissing the Developer’s affirmative defenses of comparative fault and contributory negligence on a strict-liability property-damage claim.

Under Section 3309.4 of the New York City Building Code, a developer conducting excavation and foundation work adjacent to existing structures is strictly liable for any damage caused to those structures during the project. Previously, no court had determined whether a developer could assert defenses for comparative fault or contributory negligence in this context.

Our client 1992 Third Realty LLC, the owner of a nine-story mixed-use building in Manhattan, filed a lawsuit against the developer of an adjacent construction project alleging that, among other claims, the developer was strictly liable for structural damage to the plaintiff’s building caused by the developer’s construction activities, including excavation and foundation work. These activities resulted in the plaintiff’s occupied building settling and leaning over three inches into the adjacent construction site causing alleged damages of over $1,000,000. The developer asserted affirmative defenses of comparative fault and contributory negligence, claiming the plaintiff’s building’s allegedly poor condition contributed to the damage. In dismissing these affirmative defenses, the court held that a developer may not assert defenses for comparative fault and contributory negligence on a claim under Section 3309.4.

This ruling sets a precedent that strengthens the protection of property owners against construction-related damages and clarifies the responsibilities of developers under the NYC Building Code. This decision is expected to have far-reaching implications in the realm of construction law, particularly in cases involving adjacent property damage. It provides a clear legal framework for property owners seeking redress for damages caused by neighboring construction projects and emphasizes the importance of compliance with the NYC Building Code.

About Greenspoon Marder

Greenspoon Marder LLP is a full-service law firm with over 225 attorneys and more than 20 office locations across the United States. With operations from Miami to New York and from Denver to Los Angeles, our firm attracts some of the nation’s top talent in key markets and innovation hubs. Our core practice areas include Real Estate, Litigation, and Transactional Services, complemented by the capabilities of a full-service firm. Greenspoon Marder has maintained a spot on The American Lawyer’s Am Law 200 as one of the top law firms in the U.S. since 2015, and our goal is to provide exceptional client service by developing a thorough understanding of each client’s business needs and objectives in order to provide strategic, cost-effective solutions.

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Greenspoon Marder Construction Team Secures Significant Legal Victory in Adjacent Property Damage Case

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