Famous Formaggio Pizzeria. Image credit: Google Maps.
A building developed cracks in its foundation allegedly caused by pile driving associated with an adjacent construction project. Procida Construction Corp., a general contractor, undertook construction of a new building at 322 West 231st Street in the Bronx adjacent to Famous Formaggio Pizzeria’s building located at 300-318 West 231st Street. During pile driving an enlarged crack appeared in the foundation of Famous Formaggio’s building. Procida halted the pile driving and established a stability plan and remedial measures.
Famous Formaggio sued Procida for damages based on the New York City Building Code Section 3304.4 which imposes absolute liability on parties whose excavation work damaged adjoining premises. Section 3304 places the burden of protecting adjacent property on those undertaking the work.
Procida moved to dismiss Famous Formaggio’s complaint claiming, among other arguments, that the absolute liability imposed by the Building Code applied only to excavation work and not to pile driving. Procida relied on language in prior versions of the Code which had used the term excavations.
Supreme Court Justice Mary Ann Brigantti rejected Procida’s interpretation of the Building Code. Judge Brigantti ruled that the revised Building Code had replaced the older term “excavation” with the term “soil or foundation work.” She reasoned that pile driving was “foundation” work and rejected the argument that the Code should be narrowly interpreted to apply only to excavation work. Judge Brigantti further ruled that there were triable issues on whether the Building Code had been violated and concerning the responsibility for the pile driving work.
Famous Formaggio Pizzeria v. Procida Cons’t Corp., 71 N.Y.S.3d 832 (Sup. Ct. Bronx Cty 2018).