Second Circuit holds that New York Building Code imposes non-delegable duty on property owner

This summer, in reviewing a filed lawsuit, the Second Circuit Court of Appeals made a determination as a matter of law on a matter of first impression, specifically holding that property owners in New York City have a non-delegable duty to maintain the structural integrity of adjoining walls, including party walls.

According to the papers in the action, in 2008, a foreign government’s Permanent Mission to the United Nations began renovating a townhouse it owned in Manhattan. Its subcontractor negligently poured concrete alongside an existing party wall separating the foreign government’s property from that of the adjacent townhouse owned by an insurer’s subrogor. The party wall collapsed, causing substantial damage to the subrogor’s property.

Amongst other causes, the insurance company brought suit alleging that the foreign sovereign violated Section 3309.8 of the City Building Code for “failing to shore up the common wall.” The foreign government moved to dismiss the complaint alleging that it was immune from suit under the FSIA. The insurer argued that three statutory exceptions to the FSIA applied to the case, one for tortious activity, a second for commercial activity, and a third for claims involving “immovable property.” The Southern District of New York’s Court denied defendant's motion to dismiss counts of the complaint and found that the tortious activity exception applied. The Court further held that the construction activity concerning the consular mission was not a discretionary act of the foreign government, and therefore did not invoke the “exception to the exception” under the FSIA which would re-grant immunity from federal court jurisdiction.

The foreign government appealed the decision to the Second Circuit Court of Appeals, where oral argument was heard. On appeal, the foreign government also argued, under the tortious activity exception, that it owed no duty to its next-door neighbor under the independent contractor doctrine in that it was not responsible for the actions of its contractors.

The Second Circuit Court's opinion affirmed the lower court’s opinion. The Court held that the foreign government can be sued in tort for failure to comply with the New York City Building Code. While New York courts have not “specifically determined” whether §3309.8 imposes a delegable or non-delegable duty, the Second Circuit Court determined that, “The New York Court of Appeals has repeatedly held that statutes and regulations that address specific types of safety hazards create non-delegable duties of care,” especially where the regulation contains a “specific positive command.” The Court found that here, the New York Building Code, N.Y. City Admin. Code tit. 28, ch.1, §3309.8 contains such a command, requiring that the “person causing construction or demolition”, i.e. the property owner, maintain the structural integrity of adjoining walls, including party walls.
 

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