The suit was brought by owners of a neighboring building that was damaged in the course of renovating the church.  In 2001, the Church of God of St. Albans in Queens Village, Queens hired Harold Gebhard as design architect for a renovation of the church.  The project involved demolishing part of the existing church structure and replacing it with a new building.  During excavation of the building site in 2009, the neighboring building at 223-05 Hempstead Avenue was severely damaged, leading to the Department of Buildings issuing a full vacate order on September 20, 2009.

The owner of 223-05 Hempstead, Michael Toppin, brought suit against the Church and Gebhard.  On November 26, 2012 Supreme Court, Queens County granted Mr. Toppin’s motion for summary judgment on negligence.  Mr. Gebhard appealed and argued the Supreme Court erred in that Administrative Code §28-3309.4 did not impose absolute liability on the person who causes an excavation to be made.  Mr. Gebhard also argued the Court erred in holding him liable at all under the section.

On September 2, 2015 the Appellate Division, Second Department reversed the lower court’s decision and found for Mr. Gebhard.  Justice Mark C. Dillon, writing for the court, rejected Mr. Gebhard’s argument that §28-3309.4 did not impose absolute liability on the person who caused an excavation to be made, but accepted Mr. Gebhard was not liable under the section.  The Court recognized Mr. Gebhard’s prima facie showing he could not be held liable under §28-3309.4 as he neither made the decision to excavate nor was the contractor who conducted the excavation.

American Sec. Ins. Co. v. Church Of God, 16 N.Y.S.3d 247 (A.D. 2 Dept. 2015) (Attorneys: Montfort, Healy, McGuier & Salley, Donald S. Neumann Jr. and Michael A. Baranowicz of counsel, for Gebhard; Kushnick Pallaci PPC, Vincent T. Pallaci and Gina M. Wischhusen of counsel, for Michael R. Toppin; Picciano & Scahill, Francis J. Scahill and Robert J. Lally of counsel, for Church of God of St. Albans).

By:  Michael Twomey (Michael is the CityLaw Fellow and a New York Law School graduate, Class of 2014)