• Supreme Court, Queens County, IAS Part 34
  • 11434/2011
  • Justice Robert J. McDonald


Cite as: RSY Realty Corp. v. United Construction & Development Group Corp., 11434/2011, NYLJ 1202589227013, at *1 (Sup., QU, Decided December 18, 2012)

Justice Robert J. McDonald

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Decided: December 18, 2012

The following papers numbered 1 to 10 were read on this motion by defendant, HBC CORONA, LLC, for an order, pursuant to CPLR 2221, granting leave to reargue this Court's decision dated August 20, 2012, which denied defendants' motion for an order vacating the defendant's default and upon reargument granting the defendant's motion for an order vacating its default and granting defendant leave to serve a late answer:


Notice of Motion-Affidavits-Exhibits1–6

Affirmation in Opposition-Affidavits-Exhibits7–10




This is a negligence action commenced by the plaintiffs on May 11, 2011 to recover for structural damage to premises located at 32-26 112th Place, East Elmhurst N.Y. Plaintiff, Columbus Avenue Linen, Inc. is the tenant of the building owned by RSY Realty Corp. The plaintiffs' premises were allegedly damaged as a result of excavation and construction work being performed at the defendants' adjoining premises located at 112-15 Northern Boulevard, Flushing, New York. Defendant HBC is the owner of the adjoining premises and defendant United Construction & Development Group Corp., was the general contractor on the construction project retained by HBC Corona. Defendant D-Best Industries Corp., was the subcontractor hired by HBC Corona to perform construction at the adjoining premises.




By decision dated November 28, 2011, this Court granted a default judgment against defendant, without opposition. In June 2012, HBC Corona moved for an order vacating the default pursuant to CPLR 317 on the ground that defendant did not receive the summons and complaint by personal service and that it had a meritorious defense to the action.

Defendant asserted that as HBC Corona was the owner of the adjoining premises and did not do any of the actual excavation work which allegedly damaged the plaintiffs' property, HBC Corona cannot be subject to any claims of on-site negligence which caused plaintiffs to suffer damages.

By decision and order dated August 20, 2012, this court held that although the defendant did not receive actual notice of the summons and complaint in time to defend the action the defendant failed to demonstrate a meritorious defense. The decision stated that in light of the recent holding in Yenem Corp. v. 281 Broadway Holdings, 18 NY3d 481[2012]), which held that landowners are strictly liable for excavation damage to adjoining property where there is a violation of the New York State Administrative Code and where the violation was the proximate cause of the damage, that the defendant's defense that it was only the owner of the premises and that it hired United Construction to do the excavation work was unavailing.

Defendant HBC Corona now moves to reargue the Court's determination contending that Yenem Corp., supra., stated that for the owner to be held strictly liable there must be a showing that there was a violation of New York City Administrative Code Section 27-1031 which requires that damage to an adjoining structure be the result of an excavation that exceeds ten feet below the legally established curb level. Counsel asserts that discovery is required so that it may be determined whether the facts of this case fall within the ten foot regulatory threshold set forth in the Administrative Code.

In opposition, counsel for plaintiffs states that the section on which defendant relies, NYC Administrative Code §27-1031(b)(1), was repealed on July 8, 2008, prior to the commencement of this action and was replaced by New York City Construction Code §3309.4 which removed the ten foot depth requirement and stated that "regardless of the excavation fill depth, the person who causes an excavation or fill to be made shall at all times, and at his or own expense preserve and protect from damage any adjoining structures…" As stated by this court in American Sec. Ins. Co. v. Church of God of St. Albans, 2012 NY Slip Op 22308 [Sup. Ct. Queens Cty. 2012], the language and purpose of section 3309.4 are virtually identical to 27-1031(b)(1)in all relevant aspects." Therefore, the defendant's argument as to a regulatory threshold is no longer valid and strict liability would apply against an owner where




there is a violation of New York Construction Code §3309.4 and such violation was a proximate cause of the damage to the adjoining property regardless of the excavation fill depth. As stated in the prior decision, the defendant did not submit any evidence which would tend to show that the contractor's excavation was not the cause of the plaintiffs' structural damage.

It is well established that motions for reargument are addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or the law or for some other reason mistakenly arrived at its determination (see McDonald v. Strah, 44 AD3d 720 [2d Dept. 2007]; Everhart v. County of Nassau, 65 AD3d 1277 [2d Dept. 2009]). CPLR 2221 provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d][2]). A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reassert or propound the same arguments previously advanced or to present arguments different from those already presented (see Veeraswamy Realty v. Yenom Corp. 71 AD3d 875 [2d Dept. 2010]; Woodys Lumber Co., Inc. v. Jay Ram Realty Corp., 30 AD3d 590 [2d Dept. 2006]; Williams v. Board of Educ. of City School Dist. of New York City, 24 AD3d 458 [2d Dept. 2005]; Simorz v. Mekryari, 16 AD3d 543, [2d Dept. 2005]). Here, this court finds that the moving papers fail to establish that the court overlooked, misapprehended either the facts or law or otherwise mistakenly arrived at its prior determination.

Accordingly, it is hereby,

ORDERED, that the motion by defendant HBC Corona for an order pursuant to CPLR 2221 granting leave to reargue its prior motion to vacate its default is granted and upon reargument the decision of this court dated August 20, 2012 is adhered to in its entirety.

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