In a June 20, 2011, decision by Justice Bransten, the court addressed a third-party defendant’s motion for summary judgment dismissing indemnification claims brought by an owner and general contractor in connection with damages to an adjacent structure caused by a failure to properly excavate and underpin the structure during construction of a commercial condominium building. Third-party defendant, a structural engineer retained in connection with the excavation, contended that the relevant provisions of the New York City Building Code did not require it specifically to inspect the soil under the adjacent building prior to construction and that, in any event, it was not a proper party in a cause of action for loss of lateral support under the law because it was not the owner or excavator on the project. The court, however, largely denied third-party defendant’s motion, finding that it had misstated both the code and the law and that fact issues existed as to whether it was negligent in its underpinning inspections. The court granted third-party defendant’s motion only as to the claim for contractual indemnification because it was not supported by a written contract containing an indemnity provision.
RAE Realty Holdings, LLC v 643 E. 11th St. Realty, LLC, Sup Ct, New York County, June 20, 2011, Bransten, J., Index No. 102264/2007