Thursday, January 22, 2015

Case Summary: Barklee 94 LLC v. Oliver (claims arising from common wall construction dispute)

The Appellate Court modified the lower court’s decision.  Parties are the owners of adjoining townhouses and defendants made changes to the common structural wall, which is the basis for this suit.  The lower court found that plaintiff’s breach of contract claim was barred by the 3 year statute of limitations.  However, plaintiff’s claim for trespass resulting from the placement of wiring, along with plaintiff’s statements that defendants routinely trespassed and made changes to plaintiff’s property without permission, and that defendants violated property and easement rights with regard to the common structural wall was found to be sufficient to state a cause of action for trespass.  Furthermore, defendants failed to establish that they were subject to any of the exceptions which would make them not liable for their independent contractor’s negligent acts.

            The Court did not find defendants’ claim that violations of plaintiff’s easement and property rights were time-barred, as defendants’ architect’s application for payment did not conclusively establish the project completion date.  The Court further found that defendants were in violation of Building and Landmarks Code provisions as adequate lateral support was not provided for plaintiff’s property after excavation took place, and that contrary to defendants’ argument, the DOB’s inspection did not conclusively establish that the excavation did not violate such provisions.    

Decided 1/15/2015 at App. Div. 1st Dept.

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