New York County Supreme Court Judge Debra James granted Summary Judgment and dismissed the complaint against our client in a seven year old property damage action between adjacent homeowners.
Our client owns a west Chelsea townhouse which she purchased in the late 1970s. In 2005, Plaintiffs purchased the neighboring townhouse and embarked on a gut renovation converting it to a single family home. The two buildings, originally built in about 1846, share a party wall. During renovation, Plaintiffs’ contractors discovered a large bulge on their side of the party wall. Plaintiffs’ engineer theorized that flue gasses must have escaped from a poorly maintained boiler flue, damaging the brick and mortar. Allegedly as a result, Plaintiffs had to repair the wall at increased cost. Plaintiffs filed suit seeking the cost to repair their side of the wall due to our client’s alleged negligent maintenance of the flue, even though the damage to our client's property from the renovation far exceeded any claimed harm to the plaintiffs.
We argued, based upon First Department case law, specifically Giacco v. 179 Tenants Corp., 45 A.D.3d 454 (1st Dept. 2007), that a property owner has no duty to inspect for defective conditions hidden within a shared party wall. Based on the testimony, we argued that our client had no reason to know that the flue was in disrepair because no evidence of its condition had manifested itself on her side of the shared wall. We argued that her duty to repair the flue only accrued upon its discovery by Plaintiffs’ contractors at which time she promptly repaired it.
We also argued that the Plaintiffs’ theory of liability, i.e. that gasses escaping from the flue had caused the alleged damage, was without objective, scientific support and insufficient to withstand a dispositive motion. Since there had been no testing to establish that the alleged gasses were even present, the theory was based on inference and speculation. We provided an expert affidavit of an engineer stating that the age of the buildings was likely the primary source of the damage to the party wall.
Judge James held that our client was not negligent and dismissed the Complaint. Judge James concluded that we met our burden of establishing that our client had no notice of the condition until its discovery, and she then promptly repaired it. Judge James found that our client had no duty to inspect for a hidden latent condition and was not negligent in her maintenance of her building. Judge James noted that the Plaintiffs’ own contractors failed to detect the damage to the wall during their initial walkthrough of the property and that age had been a factor in the wall’s deterioration.
We argued, based upon First Department case law, specifically Giacco v. 179 Tenants Corp., 45 A.D.3d 454 (1st Dept. 2007), that a property owner has no duty to inspect for defective conditions hidden within a shared party wall. Based on the testimony, we argued that our client had no reason to know that the flue was in disrepair because no evidence of its condition had manifested itself on her side of the shared wall. We argued that her duty to repair the flue only accrued upon its discovery by Plaintiffs’ contractors at which time she promptly repaired it.
We also argued that the Plaintiffs’ theory of liability, i.e. that gasses escaping from the flue had caused the alleged damage, was without objective, scientific support and insufficient to withstand a dispositive motion. Since there had been no testing to establish that the alleged gasses were even present, the theory was based on inference and speculation. We provided an expert affidavit of an engineer stating that the age of the buildings was likely the primary source of the damage to the party wall.
Judge James held that our client was not negligent and dismissed the Complaint. Judge James concluded that we met our burden of establishing that our client had no notice of the condition until its discovery, and she then promptly repaired it. Judge James found that our client had no duty to inspect for a hidden latent condition and was not negligent in her maintenance of her building. Judge James noted that the Plaintiffs’ own contractors failed to detect the damage to the wall during their initial walkthrough of the property and that age had been a factor in the wall’s deterioration.
RSS Feed
