Bello v Santiago

[*1] Bello v Santiago 2009 NY Slip Op 50954(U) [23 Misc 3d 1127(A)] Decided on May 18, 2009 Supreme Court, Kings County Demarest, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 18, 2009
Supreme Court, Kings County

Clara Bello, Plaintiff,

against

Dennis Santiago, et.al, Defendants.



39445/2005



Attorney for Plaintiff:

Stephen Zeitlin, Esq.

50 Court Street - Suite 506

Brooklyn, NY 11201

Attorney for Santiago:

DeSena & Sweeney, LLP

1383-32 Veterans Memorial Highway

Hauppague, NY 11788

Attorney for Donat:

Erik Nelson, Esq.

54 Florence Street

Staten Island, NY 10308

Carolyn E. Demarest, J.

Upon the foregoing papers, plaintiff Clara Bello (Bello) moves for an order granting summary judgment against defendants Dennis Santiago (Santiago) and Donat Designs, Inc. (Donat Designs). Donat Designs moves for summary judgment dismissing the complaint and all cross claims against it. Santiago cross moves for the same relief.

Facts and Procedural Background

Plaintiff commenced this action seeking to recover for damage caused to her property, a residential apartment building with six units located at 48 Wilson Avenue in Brooklyn (the Building) on December 8, 2005, while excavation work was being performed on the adjoining lot, 46 Wilson Avenue, owned by Santiago. Santiago had [*2]hired Donat Designs as the general contractor to build a house on the vacant lot. On December 6, 2005, Donat Designs subcontracted with Olinazi Corporation (Olinazi Corporation), owned by Carlos Olinazi (Olinazi),[FN1] to build the foundation. The company began work on December 8, 2005, without obtaining the necessary municipal permits and allegedly without informing Donat Designs. At the time of the incident, Hensi Olinazi (Hensi)[FN2] was operating a backhoe when it allegedly hit the foundation of plaintiff's Building. The Building cracked and thereafter further shifted, settled and was condemned by the New York City Department of Buildings (Department of Buildings). Immediately following the incident, City Building Inspectors Thomas Zuriga and William Blake arrived at the site and issued violations.

Defendant Olinazi Corporation answered the complaint, but its answer was stricken by order of this court dated September 24, 2008.

The Violations

In violation 34484794X issued at the time of the accident against the "owner of premises 46 Wilson Ave.," Inspector Zuriga cited Section 27-1031 of the New York City Administrative Code (the Administrative Code) and stated:

"Failure to protect adjoining structures during excavation operations.

"Excavations approx. 10-12 feet deep undermined adjoining building, 48 Wilson Ave[;] rubble stone wall partially collapsed on south side front of site. Entire wall and building in danger of collapsing.

"Remedy: Stop all work immediately except to provide protection.

In violation 34484795H issued on that day against Olinazi Corporation, Inspector Zuriga cited Section 27-1009 (a) of the Administrative Code and stated:

"Failure to safeguard public and property affected by construction operations.

"Defect: Excavation work undermining adjoining property, 48 Wilson Avenue; rubble stone foundation wall causing partial collapse and 30-0 feet of wall to bow outward approx 1-0 foot leaving entire building in danger of collapse.

"Remedy: Safeguard public and property from all damage." [*3]

In violation 34501600K, issued against Kenol Donat (Donat), Inspector Blake cited Section 27-147 of the Administrative Code and stated:

"Work without a permit.

"Noted: Excavation undermined adjoining property at 48 Wilson Avenue. Approx 10 feet deep x 30-0 feet long. Wall partially collapsed at front of building. No permit presented by general contractor plans with job No.302004667 only at site. For new 3-story building.

"Remedy: Stop all work. Obtain all permits before commencing any other work."

A hearing before the Environmental Control Board (ECB) was scheduled for each violation for January 23, 2006. Donat and Santiago appeared; no one appeared on behalf of Olinazi Corporation. By Decision and Order dated January 23, 2006, with reference to violation 34484795H, the Administrative Law Judge (ALJ) found that "Ol[i]nazi Corp (now Kenol Donat)" was in violation of Administrative Code § 27-1009 (a) and stated that "Kenol Donat, the general contractor, appears and agrees to substitute self into the action (no representative of petitioner was present). Mr. Donat does not deny the allegation in the Notice of Violation and presents no defense. I therefore find Respondent in violation." A fine of $1,000 was imposed. With reference to violation 34501600K, by Decision and Order of the same day, the ALJ also found that Donat was in violation of Administrative Code § 27-147 and stated that "Donat (the general contractor) appears personally, without a representative . . . being present) to state that he does not deny the allegations in the Notice of Violation and that he does not present any defense. I therefore find Respondent in violation." A fine of $800 was imposed.

In violation 34517411H, issued against Santiago on May 2, 2006, Building Inspector Williams cited Administrative Code §27-1031 and stated:

"Failure to protect adjoining structures during excavation operation. Note: Excavation of this property has undermined the adjoining building 48 Wilson Avenue. Rubble stone foundation wall has partially collapsed and has not been repaired. No protection of building at 48 Wilson Avenue was observed.

"Remedy: Provide protection of adjoining structure."

On the same day, Inspector Williams also issued a violation to Santiago, 34517410X, pursuant to Administrative Code § 27-1009 (a), which stated:

"Failure to safeguard public and property affected by construction operations. Note: Excavation work on this lot has caused a partial collapse of the rubble stone foundation of the adjoining property[,] 48 Wilson Avenue. Foundation has not been repaired. [*4]

"Remedy: Safeguard public and property."

Additional violations so stating were issued to Santiago by Inspector Williams on September 27, 2006, pursuant to Administrative Code § 27-1031 (34535458Y) and pursuant to Administrative Code § 27-1009 (a) (34535459X). On January 17, 2007, Inspector Williams issued two additional violations to Santiago, one pursuant to Administrative Code § 27-1031 (34560391N) and the other pursuant to Administrative Code § 27-1009 (a) (34560390L). On May 12, 2007, Inspector Williams issued another violation to Santiago pursuant to Administrative Code § 27-1009 (a) (34577129Z).

The Deposition Testimony

Clara Bello

Bello testified that she purchased the Building about 30 years ago. She described it as having three floors, with two apartments on each floor; she lived in one of the units. When she first purchased the property, there was one house on each side of her; the City tore down the house at 46 Wilson Avenue about ten years ago. Bello further testified that prior to the accident she had not made any structural repairs to the Building, and she had not received any notices of violation from the City.

In addition, Bello stated that prior to the accident no one told her that construction work would be done on the adjacent lot, and she did not observe any machinery on the lot until her wall was hit. About 4:00 p.m. on December 8, 2005, she was cooking when she felt the Building move. When she went outside, she saw a hole in the side of the Building, from the basement to the first floor; the hole was about seven feet deep, a beam was broken and the hole was big enough for a person to walk through. Bello observed a crane at the site. Police officers arrived about ten minutes later and the Building was condemned that day. Bello left the premises shortly after the incident; she was permitted to return to retrieve some possessions but could not move back in. She further testified that she took only a few possessions and that everything else was broken or stolen. The City subsequently erected a fence around the property and boarded up the Building; she was billed approximately $37,000 by the City for the work done.

Dennis Santiago

Santiago testified that he purchased 46 Wilson Avenue, a vacant lot, in March 1992 at a City auction; the lot is 25 by 75 feet in size. In the beginning of 2005, he decided to build a six family house on the lot. In July 2005, he spoke to Donat and then hired Donat Design to act as the architect, to draw up the plans, and as the contractor, to supervise and oversee the project; Donat told Santiago that he would subcontract some parts of the job. By contract titled "Standard Form of Agreement Between Owner/Client and Architectural Team" dated August 25, 2005, between Santiago, as owner/client, and Donat Design/DDI Contracting, as consultant, Donat Design agreed to provide [*5]architectural drawings, prepare the required Department of Buildings filings and boring tests, prepare SD1 and SD2 forms ("Highway DEP Plan for Sewer and Waste") and submit an application for a certificate of occupancy. The payment schedule, however, sets forth a series of payments totaling more than $400,000 that were to be made upon signing and upon the completion of various phases of the work.

Santiago further testified that Donat Design was supposed to obtain the necessary permits; he did not go to the Department of Buildings with regard to the construction nor did he ever meet with the owner of 48 Wilson Avenue. He left for a vacation in the Dominican Republic on December 1, 2005. The day after he returned home, Donat called and told him that construction was going to start. Donat also told him that he couldn't tell the workers what to do; if Santiago had any problems, he should call Donat.

Santiago stated that he first learned of the accident when the neighbor across the street called and told him that there were fire trucks and police at the site. When he arrived at the property that evening, he spoke with two men from the Department of Buildings. Santiago then called Donat, who told him that he had been there, that the Building at 48 Wilson Avenue had shifted and that he would take care of the matter. When Santiago spoke to Donat the next day, Donat told him that he would fix whatever was wrong and that he believed that the damage was caused when the equipment the subcontractor was using touched the other foundation. Santiago did not return to the site until May, when he received a violation for garbage on the lot; at that time, the City had constructed a 25 foot fence along the width of the property.

Santiago also testified that he and Donat had to go to court on January 23, 2006 for violations issued by the Department of Buildings, i.e., for work being performed without a permit, failure to support the adjoining structure and another violation that he did not recall. He, the Judge and Donat were present. The hearing was held in a conference room and lasted about ten minutes; no court reporter was present, but the proceeding was tape recorded. Santiago stated that he was put under oath and testified that he was the owner of the property; Donat then testified that he would take responsibility for the violations. The Judge told Santiago and Donat that he would get back to them with regard to the amount of the fines that would be imposed. Santiago further averred that he did not plead guilty to any violation, he was not aware of any findings made against him, he did not pay any fines and he did not believe that Donat paid any fines as a result of the incident. He believed that the fines levied as a result of the incident were between $70,000 and $80,000. Santiago also identified three notices of violation that he believed were discussed at the hearing, i.e., 34484795H, 34484794X and 34517411H.

Kenol Donat

Donat testified that he is a self employed architect and works in the construction and architectural business; he has a sales improvement and a home contracting license; and he is the sole principal of Donat Design. In December 2005, he had five employees working for him; the company did not own any heavy equipment. At some time, Donat [*6]met with Santiago because the latter wanted to build a house on his lot. When he and Santiago visited the property, in approximately September, Donat noted that the lot was flat, part of it was dirt and part of it was cement; he did not notice anything wrong with the foundation of the Building.

Donat further testified that he was the general contractor for the project. On November 30, 2005, Santiago paid Donat Design $40,000; on November 31, 2005, an additional $50,000 was paid. $18,000 was paid to Deen-K to prepare an architectural survey; a boring test was done and final drawings were prepared. Donat testified that he also hired Olinazi Corporation, which he believed was a licensed excavation company owned by Carlos Olinazi, to remove the dirt and install the footings, along with several other subcontractors to do the electrical and plumbing work. Donat did not verify that either of the Olinazi brothers were licensed excavators; someone in his office might have. Olinazi Corporation was supposed to prepare the necessary paperwork, obtain the permits, submit proof of insurance and perform the work according to the drawings. Donat never had any conversations with Bello, although his office should have sent her notice prior to getting a permit; he was not sure if the notice was sent. Donat claimed that he was not aware, prior to receiving the neighbor's call, that Olinazi Corporation had started work. Moreover, no work should have been started at the site because the final drawing had not been approved and as a result, the necessary permits were not issued.

Donat further testified that he first learned of the incident late in the day that it occurred when Hensi Olinazi called and told him that he believed that he hit the adjacent Building. More specifically, Hensi told Donat that it was very cold and the workers went inside a car to warm up, so that there was only one person operating the backhoe at the time; that person struck the Building with the nose of the machine. Donat opined that three people should have been operating the type of backhoe used, i.e., one in front of the machine, to make sure that it was level; one on the side, to make sure that it was not swaying; and one operating it. Donat testified that he was furious when he got the call because it was cold and had snowed the day before, so that the work should not have been started because the backhoe could slip. Donat assumed that Hensi was operating the backhoe because he typically did.

When Donat arrived at the site about an hour later, Olinazi, Hensi and the Fire Department were there. The street was closed, so he was not allowed to look at the site, but he did observe digging, the backhoe and several officers. The footing on the side of the lot farthest away from 48 Wilson Avenue had been poured; the poured concrete was approximately 12 inches wide and 12 inches deep. A second partial trench had been excavated closer to the Building; he was not able to estimate the depth of the trench. When Donat spoke to inspectors at the site, they told him that the work was not being done correctly in that there was no protective shoring or bracing as indicated in the drawings; Donat observed that there was no bracing. He was issued two summonses at [*7]the scene from the ECB. About two weeks later, he tried to get Bello to sign a Technical Report Application, which would give her consent to rectify the matter, but it was never returned.

Donat also testified that he and Santiago subsequently appeared at a hearing before the ECB with regard to violations issued to them. Donat alleged that he testified at the hearing; he did not know if Santiago did. Donat stated that he pled guilty to two violations, one issued to the general contractor performing the work without a permit and the other to Santiago, because he did not want Santiago to have to respond. Donat paid one fine of $1,000 and one fine of $800.

Plaintiff's contention that Santiago is collaterally estopped from litigating the issue of whether he violated Administrative Code §§ 27-1009 and 27-1031 is without merit. As is discussed above, Santiago testified at his deposition that he did not plead guilty to any violations before the ECB. This assertion is supported by a review of the violations issued by the Department of Buildings with regard to 46 Wilson Avenue, since the only findings of violations were made against Donat. Accordingly, Santiago is not collaterally estopped from litigating the issue of liability in this action premised solely upon the fact that a violation was issued against him pursuant to Administrative Code § 27-1031. Further, the court declines to find that Santiago is in privity with Donat with regard to Donat's violation of Administrative Code § 27-1009. In the first instance, the clear language of the provision imposes liability upon a contractor, and not upon a property owner. Accordingly, it follows that the legal issues involved in a finding of liability under Administrative Code §§ 27-1009 and 27-1031 are not identical. Nor is there basis to support a finding that Santiago exercised any control over Donat Design in the proceeding before the ECB or will be bound in any way by a finding that Donat and/or Donat Design failed to provide for the safety of the public and property while performing a construction activity.

A third violation was issued to Olinazi Corporation for failure to protect the adjoining property; no one from Olinazi appeared at the hearing. Donat further testified that he was never charged with failing to protect the adjoining property. A few months after the incident, representatives from the Inspector General's Office came to his office to speak with him; the Inspector General never issued any summonses to him and no other violations were issued or criminal charges pressed against him as the result of the incident.

Carlos Olinazi

Olinazi testified that he is the president and principal of Olinazi Corporation, a business that constructs foundations; he never went to the Department of Buildings to obtain any permits to do excavation work and his brother, Hensi, who was operating the backhoe at the time of the accident, was not licensed to do excavation work. On December 8, 2005, when the company was performing work at 46 Wilson Avenue, it had three employees. Prior to doing the work, Olinazi did not know who owned the property [*8]and he did not know how deep the excavation was intended to go. The company had rented one excavator, a Caterpillar, to do the digging; it did not own the machine.

Olinazi first met Donat at the rental company, about one month before, when Donat asked about the kind of machinery needed to do a job. Olinazi gave Donat his phone number and Donat called him about one week later to do the job at 46 Wilson Avenue, about 10 days before the work began. Olinazi testified that Donat did not ask him if he was licensed or insured; he asked if Olinazi had done this kind of work before and Olinazi told him about 20 times. Olinazi agreed to perform the work for $30,000; no details regarding the work to be performed were discussed and no written contract was signed. The company procured Workers' Compensation insurance for the job; no one asked him to obtain liability insurance or permits for the job and he did not do so. Olinazi also stated that Donat told him about three days before work began that he had gotten the necessary permits and to begin the job.

Olinazi Corporation began working at the site about two days before the incident, when Olinazi drove the Caterpillar to the property. The next day, they started digging approximately six feet in the front of the lot to determine the nature of the soil so that it could be hauled away. On the next day, Olinazi's brother, Hensi began working. Donat gave him maps or blueprints at the site. Hensi called Olinazi later in the day to tell him that he had uncovered an old rock foundation about seven feet deep when he started digging and the new foundation was supposed to go deeper; there was no old foundation wall in the plans that he had been given. About three hours later, Hensi called Olinazi again and told him that Donat was at the site; Donat told Hensi about the elevation and what to do. Olinazi then received a fourth call from Hensi about two hours later, when Hensi told him that the foundation of the Building had cracked, next to the old foundation; the foundation of the Building was rock; some of the rocks were on top of the old foundation that was being removed and fell out and landed on 46 Wilson Avenue.

Olinazi drove to the site and when he got there, his brother, father and fire fighters were there. He observed a crack in the foundation of the Building and saw a trench that was approximately 15 long and 10 feet wide about 10 feet from the Building; he did not know how deep it was, but testified later that the depth of the hole was less than ten feet, seven to eight feet. Hensi told him that he was preparing to put in the footing when the Building cracked; that he was not in the Caterpillar when he saw the Building crack; that he was on the ground using shovels and a sledgehammer, digging about two feet from the Building. Olinazi spoke to Donat at the site for about two minutes, when he told Donat that the Building foundation had cracked. Donat told Olinazi that the Building cracked because of the machine; Olinazi and his brother told Donat that the machine was not the cause. Olinazi did not tell Donat what caused the crack and he did not speak to Donat again. Olinazi stated that thereafter, he went to one hearing before the City of New York with his attorney.

Olinazi was then shown a document that he signed, dated December 6, 2005, that [*9]Donat had given him to sign the day that he picked up the Caterpillar; Donat gave him $10,000 the next day.

Thomas Zurica

Zurica testified that he was a civil engineer employed as a Supervising Inspector by the Department of Buildings, working for the Emergency Response Unit; he is not a licensed engineer. On the date of the subject incident, he was handling unsafe building matters; the violations that he issues are processed by the ECB, where hearings are held by an Administrative Law Judge.

On December 8, 2005, the Fire Department requested that Zurica and his partner, William Blake, go to 46 Wilson Avenue because a building was in danger of collapsing. When they arrived at the site, he observed a three-story frame building which was adjoining a vacant lot that was being excavated. He further observed that the rubble stone wall of the Building was bowed out and in danger of collapsing, which could cause the entire house to collapse on the contractors who were working there. Zurica described the stone rubble wall as being approximately ten feet in height, about 100 years old and about 40 feet long; about 15 feet towards the middle of the house, the rubble stone wall was no longer supporting the Building. Zurica was of the opinion that the bowing of the Building was caused by excavation work that went too deep, without supporting the Building. He stated that he observed that there was little mortar in the foundation wall, but opined that while the lack of mortar could be a possible cause of the collapse, if one stone was hit the wrong way, the wall could collapse. When Zurica arrived at the site, Donat and Hensi Olinazi were there; he also observed a backhoe. Hensi called his brother to come.

Zurica estimated that the excavation at the site was approximately 30 to 40 long and about 20 feet wide. He issued a violation to the owner of the property in reliance upon a provision of the Administrative Code because the excavation exceeded five feet and no safety precautions had been put in place. He explained that he estimated the depth of the hole to be 10 to 12 feet because when he was standing in the cellar, there was about a foot or two above him and he is 6'1" tall, and when he went outside, the hole was deeper. He further testified that it was possible that the hole could have been nine feet deep. No actual measurements of the depth of the hole were made. Zurica did not testify at any hearing with regard to the violations that he issued and he never spoke with Santiago.

When questioned with regard to violation 34484795H, Zurica identified his handwriting and testified that he issued the violation pursuant to Administrative Code § 27-1009 (a), failure to safeguard public and property affected by construction operations, to Olinazi Corporation on the date of the incident; he had no reason to believe that his notes or observations were erroneous. The violation was issued because Olinazi was at the site to receive it. He then identified violation 34484794C, issued to the owner of 46 Wilson Avenue pursuant to Administrative Code § 27-1031, for the failure to [*10]protect adjoining site during excavation operations; referring to his notes, he testified that the depth of the excavation was 10 to 12 feet. After reviewing the Department of Buildings records, Zurica further testified that those two violations remained open. Zurica also identified violation 34535459X issued by L. Williams on September 27, 2006; violation 34560390L, issued by Williams on January 17, 2007; violation 34517411H, issued by Williams on May 7, 2007; violation 34577129Z, issued by Williams on May 12, 2007; and violation 345174410X, issued by Williams on May 2, 2006.

The Parties' Contentions

Plaintiff

In support of her motion, plaintiff argues that she is entitled to summary judgment against both Donat Design and Santiago because they are strictly liable to her pursuant to Administrative Code §§ 27-1031 [FN3] and 1009 (a).[FN4] Plaintiff further argues that since [*11]Santiago and Donat Design pled guilty to violations before the ECB, they are now bound by those pleas, so that no factual issues remain to be resolved herein.

In support of her motion, plaintiff also relies upon the affidavit of Adib Z. Ghattas, a structural engineer, in which he alleges that he inspected the Building on December 24, 2005. His review of the records of the Department of Buildings revealed that an application for proposed work at 46 Wilson Avenue was filed on September 8, 2005 by an unnamed applicant; the application was not approved and was suspended on October 3, 2005. On September 13, 2005, an application for the erection of a fence was filed by a representative from Donat Design, but the permit for this improvement was similarly never issued. No permit or permission to do excavation or construction of any kind at 46 Wilson Avenue was ever granted by the Department of Buildings, so that the excavation work at issue herein was done in violation of Administrative Code § 27-147 [FN5] of the Code, which work also requires 24 to 72 hours notice to the City before the work is done.[FN6] In addition, Administrative Code § 27-165 [FN7] requires that five days written notice be given to [*12]adjoining landowners before the work is commenced.

Ghattas further opines that "negligent excavation and construction methods and/or negligent use of equipment and materials and/or a failure to properly protect and support the adjoining building were a proximate cause of damage to the adjoining property, and caused it to be damaged, unsafe and uninhabitable." He concludes that the damage includes complete structural failure of the west foundation wall, with the collapse of the north section of the wall; huge horizontal, vertical and diagonal cracks on the walls and partitions of each floor; inability to open and close windows; and various other structural problems.

Plaintiff also submits an affidavit from Gabriel Valera, her grandson, in which he alleges that when he arrived at the Building on December 8, 2005, he observed construction workers; heavy construction equipment; large trenches adjoining the Building; and large, wide cracks in the foundation and on the first floor in the area where the work was being done. He further states that before the incident, he often did routine maintenance at the premises, so that he was familiar with the structure, including the basement; there were no problems with the structure, foundation or walls. After the incident, the Building was evacuated and condemned. He, his uncle and father then boarded up the Building.

Donat Designs

In opposition to plaintiff's motion and in support of its motion, Donat Design argues that it has no liability under Code § 27-1031, since the excavation was less than 10 feet deep. In support of this contention, Donat Design relies upon plaintiff's deposition, during which she testified that the hole was about seven feet deep. In addition, Olinazi testified that the hole was less ten feet deep and Inspector Zurica, who issued the violation, testified that the hole could have been nine feet deep. Donat Design further alleges that it cannot be liable because it did not supervise and control the excavation and it did not have notice that the work was being performed. Donat Design also argues that the other sections of the Administrative Code cited by plaintiff in her bill of particulars cannot support a finding of

liability in that § 27-1007 [FN8] does not create a private standard; § 27-147 (see n 5) does not [*13]create a private cause of action; §§ 27-1018 [FN9] and 27-1019 [FN10] are inapplicable and are not causally related to factors that caused damage to plaintiff's foundation; and § 27-127 [FN11] [*14]imposes maintenance requirements upon the owner of a property which are similarly inapplicable to the facts herein. Finally, Donat Design argues that it has no vicarious liability for the negligence of Olinazi Corporation, because as an independent contractor who was hired to perform the excavation work, the company is responsible for its own negligence.

Santiago

In opposition to plaintiff's motion and in support of his cross motion, Santiago relies upon the deposition testimony of the parties, as summarized above, to claim that plaintiff's Building was damaged when the backhoe operated by Olinazi struck its foundation. Santiago further argues that since the excavation was less than ten feet deep at the time that the Building was damaged, no violation of Administrative Code § 27-1031 can be found. In addition, the affidavit submitted by plaintiff's expert, Ghattas, does not reference the depth of the excavation; plaintiff testified at her deposition that the hole was approximately seven feet deep; the Building Inspector who issued the violation at the site testified at his deposition that it was possible that the hole could have been nine feet; and Santiago's expert, Herman Silverberg, a licensed engineer, also confirms that the depth of the excavation did not exceed ten feet. Hence, pursuant to Administrative Code § 27-1031 (b) (2) plaintiff, as the owner of the property upon which the damaged Building is located, was responsible for maintaining the integrity of her Building.

Moreover, Santiago argues that he did not plead guilty to any violations issued by the City of New York, since at the hearing, Donat took responsibility. Santiago also contends that he cannot be held liable for work done by Donat Design, as the general contractor, or Olinazi Corporation, as the subcontractor hired by Donat Design, since he played no role in the supervision, planning or execution of construction on the lot. Finally, Santiago argues that even if the depth of the excavation did exceed ten feet, plaintiff offers no proof that the depth of the hole was the proximate cause of the damage to her Building.

In so arguing, Santiago relies upon an affidavit submitted by Silverberg in which he alleges that he inspected the Building on May 9, 2007. At that time, he observed that it was a wood frame structure over 100 years old, with a cellar that had a concrete floor slab and a rubble wall foundation. His inspection revealed that the concrete slab showed no cracks that would indicate any undermining of the floor slab adjoining the rubble wall foundation. He opines that if an undermining condition was present, there would be a new open crack parallel to the rubble wall at close proximity to the wall; he noticed no signs of settlement or undermining. He also noticed a crack in the wall 18½ feet from the rear of the Building; from there, the foundation wall angled out without any displaced stones until it was approximately 14 feet from the front wall. For approximately nine feet from that point, the upper part of the rubble foundation wall was broken out, with the [*15]remaining lower three feet still intact. Silverberg further noted that a four inch wide wood girder supported by the foundation wall and 3 by 10 wood beams connected to the girder were severely rotted and decayed.

He opines that there were no signs that the excavation had proceeded below the foundation wall or to a depth at or near 10 feet; in the front, the ground did not appear to be excavated more than three feet above the cellar floor. He was also of the opinion that any damage to the individual apartments appeared to be the result of wear and tear and was in no way due to the condition of the foundation. Silverberg therefore concludes that the damage to the rubble foundation is not due to a condition of loss of soil support resulting from the excavation of the adjoining lot, so that the damages claimed are not the result of Santiago's alleged failure to properly protect the Building during excavation. Silverberg further alleges that the affidavit of Ghattas similarly supports the conclusion that the excavation did not exceed ten feet below curb level.

Plaintiff's ReplyIn reply, plaintiff argues that neither Santiago nor Donat Design adequately refutes her assertion that Administrative Code §§ 27-1009 and 27-1031 (b) impose strict liability on both Donat Design, as the contractor performing work on the adjoining lot, and Santiago, as the owner of the lot. Further, since the ECB found violations of Administrative Code §§ 27-1031 and 1009 against these defendants, the issue of proximate cause has already been resolved against them and is binding herein pursuant to the doctrines of res judicata and collateral estoppel. More specifically, by pleading guilty to violations before the ECB, which include findings that the depth of the excavation exceeded ten feet and that the excavation caused the subject damages, and by failing to appeal the findings, both Santiago and Donat Design are strictly liable for the damage done to her Building. In further support of her contentions, plaintiff points to the language in the violation issued to the "owner of premises 46 Wilson Avenue" under Administrative Code § 27-1031, which states that the "excavation work undermined adjoining property 48 Wilson Avenue" and the language of the violation issued to Olinazi Corporation under Administrative Code § 27-1009, which states "undermined adjoining Building 48 Wilson Avenue."

In addition, plaintiff avers that Santiago is not absolved from liability because Donat pled guilty in his place, since the violation was issued to Santiago. Finally, plaintiff argues that since no permits were obtained prior to the commencement of the excavation work and since there is no argument made that she was given five days prior written notice of the work to be done, as required pursuant to Administrative Code § 27-165, these failures also raise issues of fact. Accordingly, neither Donat Design nor Santiago can relitigate questions of fact and law that were resolved against them by the ECB. Nor can Santiago now claim surprise that the guilty plea is being used against him in a civil action, since he went to the site and observed the massive damage sustained by her Building.

Plaintiff also argues that even if the ECB findings are not conclusive, defendants [*16]cannot successfully refute the conclusion that the depth of the excavation exceeded ten feet. In this regard, plaintiff testified that the hole in her Building was approximately seven feet deep; she did not testify as to the depth of the excavation itself. Similarly, Ghattas did not address the issue of the depth of the excavation, since he relied upon the findings of the Building Inspectors made at the time of the incident. Plaintiff further contends that the affidavit by Santiago's expert is a nullity, since the findings of the ECB are binding on him. More significantly, Silverberg does not definitively state that the excavation was less than ten feet, but instead states that "there were no signs that the excavation proceeded to a depth at or near then feet." In addition, since his inspection was conducted one and one-half years after the incident, during which time the site had been exposed to the elements, his opinion should be disqualified as a matter of law.

Donat Design's Opposition

In a subsequent affirmation in opposition to the motions for summary judgment made by plaintiff and Santiago, Donat Design argues that it was retained to perform architectural services, and was not the general contractor for the construction job. In addition, if the damage to the Building was caused by a backhoe hitting the Building, the proximate cause of the damage is independent of the duty to support the foundation.

Donat Design further contends that inasmuch as it was not a party to the administrative proceedings before the ECB, there can be no issue preclusion as to it. Moreover, the alleged violations are for technical and procedural matters, such as failure to obtain a permit, which do not create a private right of action for plaintiff. Donat Design also argues that it cannot be held vicariously liable for any violation of Administrative Code § 12-1031, because an independent contractor, Olinazi Corporation, is liable for its own negligence. Finally, Donat Design contends that it cannot be held liable on the ground that plaintiff has failed to establish proximate cause, since there is evidence to support the finding that her Building was damaged when it was struck by a backhoe.

Santiago's Reply

In reply, Santiago argues that he did not plead guilty to any violations before the ECB, since the Decision and Order states that Donat pled guilty to a violation of Administrative Code § 27-1009 (a), which violation was initially issued to Olinazi Corporation. In this regard, it is also significant to note that this section of the Code is addressed to contractor liability. In addition, the other violations issued to him have been dismissed, with the exception of Violation 34577129Z, which was issued after the incident and is still "active." Similarly, Violation 34484794X, which was issued to the "owner of premises 46 Wilson Ave" pursuant to Administrative Code §27-1031, also remains open and active.

The Law

At the time that the relevant violation notices herein were issued, Administrative Code § 27-1031 provided that one who excavates to a depth of more than 10 feet below [*17]curb level must, at his own expense, preserve and protect any adjoining structures from injury. "The duty under the statute is intended to apply to the activities during the excavation process and to any damages suffered by the adjoining owner proximately resulting from the excavator's failure to take adequate precautions to protect adjoining structures during the excavation" (Cohen v Lesbian & Gay Community Servs. Ctr. Inc., 20 AD3d 309, 310 [2005], citing Coronet Props. Co. v L/M Second Ave., 166 AD2d 242 [1990]; Palermo v Bridge Duffield Corp., 3 AD2d 863 [1957]; Victor A. Harder Realty & Constr. Co. v City of New York, 64 NYS2d 310, 318 [1946]). The court also notes that this provision of the Administrative Code

is intended to change the common law rule, since:

"Under the common law an owner of land with a building thereon was not entitled ordinarily to have the walls of his building protected by one causing an excavation to be made on adjoining land. Dorrity v Rapp, 72 NY 307. In 1855 the common-law rule was modified by legislative enactment, and from time to time thereafter various amendments were made to the statute until the adoption of the New York City Building Code now in force, which was ratified and confirmed by the amended charter of 1901 (Laws 1901, c. 466, § 407), thus giving it the force and effect of statutory law (City of Buffalo v NY, L. E. & W. R. R., 152 N Y 276; City of Rochester v Simpson, 134 NY 414)."

(Gordon v Auto. Club of Am., 180 App Div 927, 167 NYS 585, 587 [1917]).

As is also of particular relevance to the instant dispute, it has been held that:

"While Administrative Code § 27-1031 has been held to impose absolute liability (see, Harder Realty & Constr. Co. v City of New York, 64 NYS2d 310, 318; Levine v City of New York, 249 App Div 625) upon both the owner and contractor who perform the excavation (Palermo v Bridge Duffield Corp., 154 NYS2d 288, affd., 3 AD2d 863), in these and other cases relied upon by plaintiffs, liability was determined after trial upon findings that defendants had failed to take adequate precautions to protect adjoining structures and that defendants' activities were the proximate cause of the damage (see, Harder Realty & Constr. Co. v City of New York, supra ). These factual issues, together with evidence of the poor condition of the allegedly damaged buildings and of other possible causes of the damage, preclude summary disposition of this matter."

(Coronet, 166 AD2d at 243; accord Fagan v Pathe Indus., 274 App Div 703, 705-706 [1949] [the owner of property is chargeable with a nondelegable duty to comply with section C26-385.0 of the Administrative Code of the City of New York [FN12]]; Levine v City of New York, 249 App Div 625, 625 [1936] [l]ateral support is an obligation which arises as an incident to the ownership of real property and its deprivation results in absolute [*18]liability, irrespective of negligence"]).

" The words "the person or persons causing such excavation to be made"apply to the owner of the property who employs a third person to make such an excavation. . . . .'" (Victor A. Harder Realty & Constr. Co. v City of New York, 64 NYS2d 310, 317-318 [1946], quotingRosenstock v Laue, 140 App Div 467, 470, 471 [1910]). It has also been held that a general

contractor is also held responsible for the discharge of the duty of Administrative Code § C26-385.0 (Fagan., 274 App Div at 706, citing Columbia Machine Works v Long Island R.R. Co., 267 AppDiv 582 [1944]).

It must also be noted, however, that it has been held that:

"[T]he owner of a building who sees an excavation about to be made on an adjoining lot must be prepared to support his building when the excavation on the adjoining property does not exceed 10 feet in depth; but when it does exceed 10 feet in depth he need give no support to his own building, but can rely upon the obligation imposed upon the owner of the property upon which the excavation is made to support the adjoining walls."

(Rosenstock, 140 AD at 362).[FN13]

In addressing liability pursuant to Administrative Code § 27-009, it has been held that "once plaintiff established his prima facie case that defendants were negligent in the placement of the [construction materials] and in failing to take adequate safeguards . . . proximate cause became an issue of fact" (Orlin v Colgate Scaffolding Corp., 248 AD2d 114, 115 [1998] citing Mirand v City of New York, 84 NY2d 44, 51 [1994]; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]). Further, while recognizing that as a general rule, one who engages an independent contractor is not liable for the latter's negligence in performance, it has been held that both a contractor [*19]and subcontractor can be held liable under Administrative Code§ 27-1009 (a), "as contractors engaged in building work, to institute and maintain safety measures . . . to safeguard all persons and property affected by [their] operations'" (Pannone v Burke, 149 AD2d 673, 676 [1989], lv denied 74 NY2d 610 [1989]).

In determining liability in the instant matter, it is also necessary to recognize that plaintiff argues that Donat and/or Santiago pled guilty to violations at the hearings held before the ECB, and hence are bound by the factual findings made by the ALJ pursuant to the doctrines of collateral estoppel and res judicata. " [R]es judicata is generally applicable to quasi-judicial administrative determinations that are "rendered pursuant to the adjudicatory authority of an agency to decide cases brought before its tribunals employing procedures substantially similar to those used in a court of law"'" (Matter of Jason B. v Antonia Coello Novello, 12 NY3d 107, 2009 NY Slip Op 1244, *5 [2009], quoting Matter of Josey v Goord, 9 NY3d 386, 390 [2007], quoting Ryan v New York Tel. Co., 62 NY2d 494, 499 [1984]). "One linchpin of res judicata is an identity of parties actually litigating successive actions against each other: the doctrine applies only when a claim between the parties has been previously brought to a final conclusion'" (City of New York v Welsbach Elec. Corp., 9 NY3d 124, 127-128 [2007], quoting Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 [1999]). Stated differently, the "doctrine of res judicata only bars additional actions between the same parties on the same claims based upon the same harm'" (Employers' Fire Ins. Co. v Brookner, 47 AD3d 754, 756 [2008], quoting Matter of LaRocco v Goord, 43 AD3d 500, 500 [2007], quoted in City of New York v Welsbach Elec. Corp., 9 NY3d 124, 127-128 [2007]).

In contrast, the doctrine of collateral estoppel, or issue preclusion, "applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the [party] had a full and fair opportunity to litigate the issue in the earlier action'" (City of New York, 9 NY3d at 128, quoting Parker, 93 NY2d at 349). Hence, "[c]ollateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity" (Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1056 [2002], citing Ryan, 62 NY2d at 500). "The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior proceeding, and is decisive of the present action" (see e.g. City of New York v College Point Sports Assn., ___ AD3d ___, 2009 NY Slip Op 00326 *5-*6 [2009], citing Buechel, 97 NY2d at 304; D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]). "The party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (see e.g. City of New York, 2009 NY Slip Op 00326, *6, citing Buechel, 97 NY2d at 304; Matter of Juan C. v Cortines, 89 NY2d 659, 667 [1997]; Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985]; see also G. Rama Constr. Enters. v 80-82 Guernsey St. Assoc. LLC, 43 AD3d 863, 865 [2007] "[(t)he party seeking the benefit of [*20]collateral estoppel must prove that the identical issue was necessarily decided in the prior action and is decisive in the present action, and the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to contest the prior determination"]).

In further explaining the applicability of the doctrine, it has been stated that:

"The issue of whether a party has had a full and fair opportunity to contest the prior decision requires consideration of the "realities of the litigation'" (Staatsburg Water Co. v Staatsburg Fire Dist., supra [72 NY2d 147] at 153, quoting Gilberg v Barbieri, 53 NY2d 285, 292, [1981]; see Buechel v Bain, supra ; Matter of Halyalkar v Board of Regents of State of NY, 72 NY2d 261 [1988]), and the fundamental inquiry is whether relitigation should be permitted in a particular case in light of what are often competing policy considerations, including fairness to the parties, conservation of resources of the court and the litigants, and the societal interests in consistent and accurate results. No rigid rules are possible, because even these factors may vary in relative importance depending on the nature of the proceedings' (Staatsburg Water Co. v Staatsburg Fire Dist., supra at 153)."

(Altegra Credit Co. v Tin Chu, 29 AD3d 718, 719-720 [2006]).

In discussing privity, the Court of Appeals has held that:

"In the context of collateral estoppel, privity does not have a single well-defined meaning (Matter of Juan C. v Cortines, 89 NY2d 659, 667 [1997]). Rather, privity is "an amorphous concept not easy of application" . . . and "includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose interests are represented by a party to the action, and [those who are] coparties to a prior action"' (id., at 667-668 [citations omitted]). In addressing privity, courts must carefully analyze whether the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances. Doubts should be resolved against imposing preclusion to ensure that the party to be bound can be considered to have had a full and fair opportunity to litigate."

(Buechel, 97 NY2d at 304-305).

"In general, a nonparty to a prior litigation may be collaterally estopped by a determination in that litigation by having a relationship with a party to the prior litigation such that his own rights or obligations in the subsequent proceeding are conditioned in one way or another on, or derivative of, the rights of the party to the prior litigation'" (Juan C., 89 NY2d at 667, quoting D'Arata, 76 NY2d at 664; People v Roselle, 84 NY2d 350 [1994]). Stated differently, privity " includes those who are successors to a property interest, those who control an action although not formal parties to it, those whose [*21]interests are represented by a party to the action, and possibly coparties to a prior action'"(Juan C., 89 NY2d at 667-668, quoting Watts v Swiss Bank Corp., 27 NY2d 270, 277 [1970]). In addition, it has been recognized that:

"[T]he control/participation' standard remains a useful and key factor in assaying the relationship between parties, for privity purposes (see, Watts v Swiss Bank Corp., 27 NY2d 270, quoted favorably in Matter of Juan C. v Cortines, supra , at 667-668; see generally, Restatement [Second] of Judgments§ 39). Thus, courts should continue to consider the character, right and extent of a party's role in one proceeding as it bears on the intervention of the collateral estoppel doctrine in another. The effect of the permitted activity on the party's interests is key in relationship to the totality of the circumstances and discrete facts at issue in each forum, including a party's access to personal counsel and direct representation (see, Watts v Swiss Bank Corp., supra ; see also, Restatement [Second] of Judgments § 39, Reporter's Note, comment c)."

(David v Biondo, 92 NY2d 318, 323-324 [1998]).

Plaintiff's Motion for Summary Judgment

The court agrees with plaintiff that pursuant to Administrative Code § 27-1031 both Santiago, as the owner of the property upon which the excavation was being performed, and Donat Designs, as the general contractor responsible for the work being performed, can be held strictly liable for the damage that was caused to her Building in violation of the Code provisions (see generally Cohen, 20 AD3d 309; Coronet Props. Co., 166 AD2d 242; Pannone, 149 AD2d at 676; Palermo, 3 AD2d 863; Victor A. Harder Realty & Constr. Co., 64 NYS2d 310; Fagan, 274 App Div 703; Columbia Mach. Works, Inc., 267 App Div 582; Rosenstock, 140 App Div 467). It is also clear that Donat Design, as the general contractor, can be found liable for damages pursuant to Administrative Code § 27-1009, assuming that the violation can be established to be a proximate cause of the accident (see generally Mirand, 84 NY2d at 51; Palka, 83 NY2d at 585; Orlin, 248 AD2d at 115 Pannone, 149 AD2d at 676).

As a threshold issue in this inquiry, the court finds that the assertion made by Donat Design that it was retained to provide only architectural services is patently incredible. In this regard, Santiago testified at his deposition that he hired Donat Design to construct a house on his property. In addition, Donat testified at his deposition that his company was the general contractor for the project and that he hired several subcontractors, including Olinazi Corporation. In addition, the agreement entered into between Donat Design and Santiago provides for a schedule of payments totaling more than $400,000 that commence upon the signing of the contract, with periodic payments being made as various components of the project were completed. More specifically, the $408,125 payment schedule for "construction" provides for $80,000 payments "[u]pon [c]ompletion of [e]xcavation" and "[u]pon [c]ompletion of [f]rame;" a $70,000 payment "[u]pon [c]ompletion of [r]oof and [s]iding;" a $30,000 payment "[u]pon [c]ompletion of [*22][p]lumbing and "[e]lectrical;" $20,000 payments [u]pon [c]ompletion of [w]indows and [s]heetrock" and "[u]pon [c]ompletion of [p]laster, [p]rime and [p]aint;" and a concluding payment of $13,125 [u]pon [c]ompletion of [f]inishes." Hence, it is clear that the agreement between Donat Design and Santiago contemplated the construction of a building on the lot. It therefore becomes necessary to determine if there is a finding of a violation against Santiago and/or Donat Design that is sufficient to support a finding of liability.

In addressing this issue, the court first notes that plaintiff's reliance upon res judicata in seeking to impose liability upon either Donat Design or Santiago is misplaced, since the proceeding before the ECB and the instant action are not " between the same parties on the same claims based upon the same harm'" (Employers' Fire Ins. Co. v Brookner, 47 AD3d 754, 756 [2008], quoting Matter of LaRocco v Goord, 43 AD3d 500, 500 [2007], quoted in City of New York v Weisbach Elec. Corp., 9 NY3d 124, 127-128 [2007]). Plaintiff's reliance upon the doctrine of collateral estoppel is more persuasive, however, since the issues raised herein are "identical to an issue which was raised, necessarily decided and material in the first action" (see e.g. City of New York, 9 NY3d at 128; Parker, 93 NY2d at 349), i.e., whether a violation pursuant to Administrative Code § 27-1031 is supported because the depth of the excavation was greater than 10 feet, and whether a violation pursuant to Administrative Code § 27-1009 is supported in that the contractor failed to maintain sufficient safety measures to safeguard all persons and property affected by the work.

With regard to Donat Design, it is noted that Donat testified at his deposition that he pled guilty to two violations, i.e., performing work without a permit and one that he believed was issued against Santiago. A review of the Department of Buildings records reveals that Donat was, in fact, found to be in violation of two Notices of Violation. More specifically, one Decision and Order of the ECB indicates that Donat was found to have violated Administrative Code § 27-1009 (a), i.e., the ALJ found that "Olinazi Corp (now Kenol Donat)" was guilty under violation 34484795H. Accordingly, it must be concluded that regardless of the person to whom that violation was issued on December 8, 2005,[FN14] Donat was a party to the ECB proceeding where the ALJ made a finding that he was in violation of Administrative Code § 27-1009. In addition, a second Decision and Order establishes that the ALJ found that Donat was in violation of Administrative Code § 27-147, work without a permit. Donat Design will accordingly be collaterally estopped from relitigating these issues herein. In contrast, however, there is no evidence before the court to support the conclusion that either Donat, in his individual capacity or on behalf of Donat Design, pled guilty to any violation of Administrative Code § 27-1031. In this regard, it further appears that the violations of this provision of the Code were issued to [*23]Santiago, and not to Donat or Donat Design.

In reaching this determination, the court rejects Donat Design's contention that the finding of the ECB that Donat is in violation cannot be relied upon to collaterally estop Donat Design from litigating the issue in this action. In addressing this issue, the court first notes that it is beyond dispute that in failing to contest the violation, Donat was standing in the place of Donat Design, since the agreement to construct a building at the site was entered into between Santiago and Donat Design, not Donat, individually. Further, as the sole principal and owner of Donat Design, it is evident that the interests of Donat are identical to those of his corporation and that Donat controlled the course of conduct undertaken on behalf of Donat Design during the hearing before the ECB. In addition, as an experienced contractor, Donat must also be presumed to understand the possible legal and financial consequences of failing to contest a violation that resulted in such massive damages. Hence, under these circumstances, the court finds that it is appropriate to hold that Donat and Donat Design are in privity for the purposes of the application of the doctrine of collateral estoppel.

Plaintiff's contention that Santiago is collaterally estopped from litigating the issue of whether he violated Administrative Code §§ 27-1009 and 27-1031, however, is without merit. As is discussed above, Santiago testified at his deposition that he did not plead guilty to any violations before the ECB. This assertion is supported by a review of the violations issued by the Department of Buildings with regard to 46 Wilson Avenue, since the only findings of violations were made against Donat. Accordingly, Santiago is not collaterally estopped from litigating the issue of liability in this action premised solely upon the fact that a violation was issued against him pursuant to Administrative Code § 27-1031. Further, the court declines to find that Santiago is in privity with Donat with regard to Donat's violation of Administrative Code § 27-1009. In the first instance, the clear language of the provision imposes liability upon a contractor, and not upon a property owner. Accordingly, it follows that the legal issues involved in a finding of liability under Administrative Code §§ 27-1009 and 27-1031 are not identical. Nor is there any basis to support a finding that Santiago exercised any control over Donat Design in the proceeding before the ECB or will be bound in any way by a finding that Donat and/or Donat Design failed to provide for the safety of the public and property while performing a construction activity.

From this it follows that plaintiff has failed to make a prima facie showing of entitlement to summary judgment on the ground that Donat Design and Santiago are strictly liable for the damage to her property because of the findings of violations made by the ECB. Further, although a finding of a violation of § 27-1009 (a), which pertains to maintaining safety measures and providing all equipment or temporary construction necessary to safeguard all persons and property affected by such contractor's operations, is against Donat, such finding does not entitle plaintiff to summary judgment on the issue of liability with regard to the damage sustained by plaintiff. In this regard, as was discussed [*24]above, "once plaintiff established his prima facie case that defendants were negligent in the placement of the [construction materials] and in failing to take adequate safeguards . . . proximate cause became an issue of fact" (Orlin, 248 AD2d at 115 [internal citations omitted]). Proximate cause pursuant to this provision accordingly remains an issue of fact to be determined at trial.

The court also finds no merit to plaintiff's contention that she is entitled to a determination of strict liability based upon Administrative Code § 27-1031. In this regard, as was noted above, plaintiff fails to establish that either Donat or Santiago plead guilty to a violation of Administrative Code § 27-1031 before the ECB. Hence, the ALJ did not make a finding that the depth of the hole was in excess of ten feet. In addition, although Zurica issued violations premised upon the statement that the depth of the excavation exceeded 10 feet, he testified at his deposition that he visually estimated the depth of the hole and that it is possible that the hole could only have been nine feet. These contradictory assertions therefor serve to raise an issue of fact with regard to the depth of the hole. In so holding, the court also notes that the testimony of plaintiff concerning the depth or the hole is confusing, at best, since it is not clear that she was testifying to the depth of the hole or as to the location of the hole in her Building. In addition, the affidavit submitted by Santiago's expert also raises an issue of fact with regard to whether the depth of the hole exceeded ten feet. It is noted that Silverberg did not inspect the site for over one year following the incident, however, plaintiff has not established that the condition of the site changed in any significant manner during that period.

Accordingly, plaintiff's motion for summary judgment is granted only to the extent of finding that Donat Design is collaterally estopped from arguing that it did not violate Administrative Code §§ 27-147 and 27-1009.

Donat Design's Motion for Summary Judgment

In view of the above findings, it is clear that Donat Design's motion for summary judgment must be denied. Stated briefly, Donat Design, as the general contractor for the construction project, can be held liable to plaintiff pursuant to both Administrative Code §§ 27-1009 and 27-1031. However, just as plaintiff's motion for summary judgment pursuant to Administrative Code § 27-1031 was denied because there is an issue of fact with regard to the depth of the excavation work at the site, Donat Design has failed to establish, as a matter of law, that the depth was less than ten feet, so that the provision is inapplicable. Further, Donat Design fails to address the issue of whether the violation of Administrative Code § 27-1009 was the proximate cause of the accident.

Implicit in this holding is the determination that the court rejects Donat Design's contention that it cannot be held liable to plaintiff for any damages on the ground that it was the negligence of Olinazi Corporation that was the proximate cause of the damage, and since the Corporation was an independent contractor, it is solely liable for its own negligence. Although Donat Design contends that the damage to plaintiff's Building resulted from the conduct of Olinazi Corporation in striking the foundation of the Building [*25]with the backhoe, this assertion is based upon Donat's recount of the incident, as related to him by Olinazi and is contested by Olinazi, who testified that the foundation of the Building collapsed when Hensi was working with a sledgehammer and shovel, and not while he was operating the backhoe. Accordingly, these discrepancies raise issues of fact that cannot be determined upon the papers now before the court.

Even assuming that the damage to plaintiff's Building was caused by the negligence of Olinazi Corporation, Donat Design is not entitled to summary judgment on the ground that it cannot be held liable for the conduct of Olinazi Corporation because it was performing the work as an independent contractor. Although, as defendant notes, it has been held that:

"The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not liable for the independent contractor's negligent acts (see, Rosenberg v Equitable Life Assur. Socy., 79 NY2d 663, 668; Gravelle v Norman, 75 NY2d 779, 782; Besner v Central Trust Co., 230 NY 357, 362; Prosser and Keeton, Torts § 71 [5th ed]; see also, Restatement [Second] of Torts § 409 [1965]). Although several justifications have been offered in support of this rule, the most commonly accepted rationale is based on the premise that one who employs an independent contractor has no right to control the manner in which the work is to be done and, thus, the risk of loss is more sensibly placed on the contractor (Feliberty v Damon, 72 NY2d 112, 118; Prosser and Keeton, op. cit., at 509)."

(Kleeman v Rheingold, 81 NY2d 270, 273-274 [1993]), as more relevant herein, the Court of Appeals went on to explain that:

"Despite the courts' frequent recitation of the general rule against vicarious liability, the common law has produced a wide variety of so-called exceptions' (see, Feliberty v Damon, supra , at 118; Restatement, op. cit., §§ 410-429). Indeed, it has been observed that the general rule is now primarily important as a preamble to the catalog of its exceptions' (Pacific Fire Ins. Co. v Kenny Boiler & Mfg. Co., 201 Minn 500, 503; accord, La Count v Hensel Phelps Constr. Co., 79 Cal App 3d 754 [general rule of nonliability applies only where no good reason can be found for departing from it]; Restatement, op. cit., § 409, comment b, at 370 [same]). These exceptions, most of which are derived from various public policy concerns (see, Feliberty v Damon, supra , at 118), fall roughly into three basic categories: negligence of the employer in selecting, instructing or supervising the contractor;* employment for work that is especially or inherently' dangerous (see, Wright v Tudor City Twelfth Unit, 276 NY 303, 307; see also, Rosenberg v Equitable Life Assur. Socy., supra ); and, finally, instances in which the employer is under a specific nondelegable duty (see generally, Restatement, op. cit., § 409, comment b, at 371)."

* [Court] FN 1: "Notably, although often classified as an exception,' this category may not be a true exception to the general rule since it concerns the employer's liability for [*26]its own action or omissions rather than its vicarious liability for the action and omissions of the contractor."

(Kleeman, 81 NY2d at 274).

In applying this rationale in a case alleging a cause of action against plaintiff cooperative corporation and related entities for damage to plaintiff's office allegedly caused by extensive demolition and construction work on the adjacent property, the Appellate Division, First Department, held that:

"As recognized by the motion court, however, where the work performed is inherently dangerous, there is an exception to the general rule that a party who retains an independent contractor is not liable for the independent contractor's negligence (see Rosenberg v Equitable Life Assur. Socy., 79 NY2d 663, 670 [1992]; Tytell v Battery Beer Distrib., Inc., 202 AD2d 226 [1994]).

....

While [w]hether the work is inherently dangerous is normally a question of fact to be determined by the jury,' it can, in certain circumstances, be decided as a question of law (Rosenberg v Equitable Life, supra at 670, 668-669). As noted by the Court of Appeals, excavation work adjacent to a thoroughfare obviously presents inherent dangers to those who must use the thoroughfare (id. at 669). The same could arguably be said about excavation work adjacent to an existing building."

(Kein v Beta I, LLC, 10 AD3d 509, 510 [2004], rearg denied, lv denied 2004 NY App Div LEXIS 15412 [2004]; accord Hixon v Congregation Beit Yaakov, 57 AD3d 328, 328 [2008] [the performance of excavation work is inherently dangerous]; see generally Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 501-502 [1993] [Labor Law § 241(6) imposes a non-delegable duty upon owners and contractors to provide reasonable and adequate protection and safety to workers engaged in the inherently dangerous work of construction, excavation or demolition]).

Applying this rationale to the facts of this case, the court finds that inasmuch as the liability of Donat Design is predicated upon its negligence in performing or directing the performance of an inherently dangerous activity, i.e., excavation work, its duties are nondelegable. In so holding, the court finds Donat Design's reliance upon RCD Bldg., L.L.C. v Park Slope Condominiums, L.L.C., (14 Misc 3d 1215 [A] [2007]) to be unpersuasive. In addressing the issue of the liability of an architect who made a written agreement to provide architectural services in connection with construction of an eight unit condominium, the court therein held (at *6) that "[t]he Appellate Division, Second Department long ago eliminated a defendant's liability where [t]here was no proof that [this] defendant . . . participated in or knew of the damage that was being done by the other defendants who were excavating . . .' (id. quoting Hoffman v Dyruff, 259 App Div 837, 838 [*27][1940], affd 285 NY 695 [1941]). This case is clearly distinguishable, however, since as discussed above, the evidence before the court compels the conclusion that Donat Design was retained as a general contractor and did, in fact, retain several subcontractors, including Olinazi Corporation, to perform work under the contract. Accordingly, at best, this assertion by Donat Design serves only to raise another issue of fact to be resolved at trial.

The court finds, however, that there is merit to Donat Design's argument that it cannot be found liable for violations of the other provisions of the Administrative Code cited by plaintiff in her bill of particulars. It is well settled that the violation of a municipal regulation or ordinance is some evidence of negligence that may be considered by the trier of fact (see e.g. Petrone v Fernandez, 53 AD3d 221, 226-227 [2008], citing Bauer v Female Academy of Sacred Heart, 97 NY2d 445, 453 [2002]; Elliott v City of New York, 95 NY2d 730 [2001]; Watral & Sons, Inc. v OC Riverhead 58, LLC, 34 AD3d 560, 567 [2006]; accord Livichusca v. M & T Mtge., Co., 49 AD3d 822, 824 [2008]). It has been held that a violation of Administrative Code § 27-1018 provides a ground for liability against the owner, as well as against a general contractor or subcontractor who fails to comply with it (see Durkin v IDI Constr., 180 Misc 2d 613, 619 [1999]). However, review of that provision reveals that a violation must be premised upon the failure to properly maintain the property, as by failing to keep premises free from ice, snow, grease and other debris, and also requires proper storage of materials, equipment and tools. Plaintiff alleges no facts sufficient to support a violation of this provision.

Administrative Code § 27-127, which requires that buildings be maintained in a safe condition and holds owners responsible for such maintenance,[FN15] has been held to be "nonspecific and [to] reflect only a general duty to maintain the premises in a safe condition" (Robinson v M. Parisi & Son Constr. Co. Inc., 51 AD3d 653, 654 [2008], citing O'Connell v L.B. Realty Co., 50 AD3d 752 [2008]; Ahmad v City of New York, 298 AD2d 473, 474 [2002]; Kilimnik v Mirage Rest., 223 AD2d 530 [1996]; accord Levy v Kung Sit Huie, 54 AD3d 731, 732 [2008]), and would not support a finding of liability under the facts alleged. Similarly, Administrative Code § 27-1019 pertains to the removal and storage of combustible waste material or combustible debris and the chutes used for the removal of this material. Plaintiff fails to articulate a claim against Donat Design premised upon this provision in either her complaint or in opposition to its motion for summary judgment. Further, plaintiff fails to establish, and the court's independent research fails to reveal, any authority which holds that Administrative Code § 27-147, which prohibits the [*28]commencement of construction work without a permit, creates a private cause of action. In like fashion, Administrative Code § 27-1007, which addresses the scope of the provisions of the subchapter generally, has been found to be nonspecific and reflects only a general duty to maintain the premises in a safe condition, and hence, is insufficient to support a cause of action.

Accordingly, Donat Design is granted summary judgment only to the extent of dismissing plaintiff's claims as against it premised upon violations of Administrative Code §§ 27-127, 1007, 1018 and 1019. Whether the failure to comply with Administrative Code § 27-147 evidences negligence remains to be determined at trial.

Santiago's Motion for Summary Judgment

For the same reasons discussed above, Santiago's motion for summary judgment must also be denied. More specifically, it is well established that Santiago, as the owner of the property where the excavation work was being performed, can be held strictly liable to plaintiff for damages sustained as a result of work not performed in accordance with Administrative Code § 27-1031. However, issues of fact exist with regard to whether the depth of the excavation exceeded ten feet and whether the damage to plaintiff's Building was caused when the foundation was struck by the backhoe or by the shifting of the soil.

Conclusion

Accordingly, plaintiff's motion for partial summary judgment is granted only to the extent of holding that Donat Design is collaterally estopped from relitigating the issue of its violation of Administrative Code § 27-147 and 27-1009 (a) and is otherwise denied. Donat Design's motion for summary judgment is granted only to extent of dismissing the claims asserted against it premised upon the alleged violations of Administrative Code §§ 27-127, 1007, 1018 and 1019. All other requested relief is denied. Defendant Santiago's cross-motion is denied in its entirety.

The foregoing constitutes the order and decision of this court.

E N T E R

J. S. C. Footnotes

Footnote 1: In various papers before the court, both the corporation and its owner are referred to by various names. Inasmuch as it cannot be determined on the papers now before the court what the proper name is, the company and its owner shall be referred to as Olinazi throughout this decision.

Footnote 2: Hensi also seems to be known as Henzey.

Footnote 3: Administrative Code § 27-1031 (b) (1), general requirements, provides, in relevant part, that:

"When an excavation is carried to a depth of more than ten feet below the legally established curb level the person who causes such excavation to be made shall, at all times and at his or her own expense, preserve and protect from injury any adjoining structures, the safety of which may be affected by such part of the excavation that exceeds ten feet below the legally established curb level provided such person is afforded a license to enter and inspect the adjoining buildings and property."

Footnote 4: Administrative Code § 27-1009 (a), general requirements, provides that:

"(a) A contractor engaged in building work shall institute and maintain safety measures and provide all equipment or temporary construction necessary to safeguard all persons and property affected by such contractor's operations.

"(b) No structure, device, or construction equipment, whether permanent or temporary, including all partly or fully completed elements or sections of the building, shall be loaded in excess of its design capacity.

"(c) At a height of no more than twelve feet above ground and on each perimeter of a construction site fronting on a public thoroughfare, a sign shall be erected no more than twenty-five square feet in size which shall bear in letters no less than six inches high, the name, address and telephone number of the owner of the property, and the name, address and telephone number of the general contractor.

"(d) A construction site safety coordinator must be designated and present on a construction site in accordance with department rules and regulations."

Footnote 5: Administrative Code § 27-147, when permits required, provides that:

"No building construction or alteration work, foundation or earthwork, demolition or removal work, or plumbing work shall be commenced, and no signs or service equipment of the types listed in articles sixteen and seventeen of this subchapter shall be erected, installed, altered, repaired, or used, nor shall any service equipment of the types listed in article eighteen of this subchapter be used or operated, unless and until a written permit therefor shall have been issued by the commissioner. The provisions of this section shall not apply, however, to minor alterations and ordinary repairs, as defined and delineated in article five of this subchapter or to work or equipment exempted from permit requirements under the provisions of sections 27-176, 27-179, 27-184, and 27-189 of this subchapter."

Footnote 6: Administrative Code § 27-195, notice of commencement of work, provides that:

At least twenty-four hours written notice shall be given to the

commissioner before the commencement of any work for which

a permit has been issued. Before any work is commenced on an

item of construction requiring controlled inspection, all persons

responsible for such controlled inspection shall be notified in

writing at least seventy-two hours prior to such commencement.

Footnote 7: Administrative Code § 27-165 provides that:

"No foundation or earthwork permit shall be issued unless and until at least five days prior written notice of the permit application shall have been given by the applicant to the owners of all adjoining lots, buildings and service facilities which may be affected by the proposed foundation work or earthwork operations."

Footnote 8: Administrative Code § 27-1007, scope, provides that:

"The provisions of this subchapter shall govern the conduct of all construction operations with regard to the safety of the public and property. For the purposes of this subchapter, construction operations shall include excavation, erection, alteration, repair, removal and demolition as related to buildings. For regulations relating to the safety of persons employed in such construction operations, the provisions of subchapter ten of the labor law as implemented by the industrial code of the state of New York, rule no. 23, shall apply."

Footnote 9: Administrative Code § 27-1018, housekeeping, provides that:

"(a) All areas used by the public shall be maintained free from ice, snow, grease, debris, equipment, materials, projections, tools, or other item, substance, or condition that may constitute a slipping, tripping, or other hazard. Local Law 61-1987.

"(b) When not being used, materials, equipment, and tools that might fall from levels above areas used by the public shall be kept away from edges or openings. When exterior walls are not in place, material piles shall be kept at least ten feet back from the perimeter of the building.

"(c) Material may be stored within two feet of the edge of a building provided however that such material is stored not more than two stories below the stripping operation on concrete structures or the uppermost concrete floor on steel frame structures. Such material shall be secured against accidental movement. Storage of material on all other floors shall conform to paragraph (b) of this section and shall be secured when not being used.

"(d) Waste dumpsters, debris boxes and skip boxes shall be secured and those containing material or debris shall be covered at the end of each work day. Such waste dumpsters, debris, [sic]* boxes and skip boxes shall not be placed at the edge of the building at any time except when being moved from the floor or building.

*[Text note] 1. "The ,' probably should be removed."

"(e) Sufficient containers of metal or other material acceptable to the commissioner shall be available for the storage of all garbage and debris. The containers shall be of three-quarter cubic yard minimum capacity.



Footnote 10: Administrative Code § 27-1019, a very lengthy provision, pertains to the removal and storage of combustible waste material or debris and the construction of chutes made for their disposal, and will not be quoted in full herein.



Footnote 11: Administrative Code § 27-127, maintenance requirements, provides that:

"All buildings and all parts thereof shall be maintained in a safe condition. All service equipment, means of egress, devices, and safeguards that are required in a building by the provisions of this code or other applicable laws or regulations, or that were required by law when the building was erected, altered, or repaired, shall be maintained in good working order."

Footnote 12: Administrative Code § C26-385.0 is the predecessor to Administrative Code § 27-1031.

Footnote 13: The court also notes that Administrative Code § 26-229 (b) was amended (see chap 664/2007 § 1, eff. Aug. 28, 2007) to read as follows:

"Protection of adjoining buildings. Whenever the safety of any adjoining building is or may be affected by an excavation, it shall be the duty of the person causing such excavation to be made to provide safe support for such building regardless of the depth of its foundations, provided such person is afforded a license to enter and inspect the adjoining building and property, and to perform such work thereon as may be necessary for such purpose; otherwise, such duty shall devolve upon the owner of the adjoining building, who shall be afforded a similar license with respect to the property where the excavation is to be made."

Accordingly, the requirement that the excavation be in excess of ten feet is no longer included.

Footnote 14: The Decision and Order offers no explanation with regard to why the ALJ permitted Donat to be substituted in place of Olinazi Corporation with regard to this violation.

Footnote 15: Administrative Code § 27-127, maintenance requirements, provides that:

"All buildings and all parts thereof shall be maintained in a safe condition. All service equipment, means of egress, devices, and safeguards that are required in a building by the provisions of this code or other applicable laws or regulations, or that were required by law when the building was erected, altered, or repaired, shall be maintained in good working order."