146 Wilson Street, Brooklyn. Image Credit: Google Maps

HPD performed an emergency excavation without giving owner time to comply. The Trustee of a family Trust hired three workers to excavate soil on the Trust’s Brooklyn property to fix an emergency condition at 146 Wilson Street, Brooklyn. The three workers were trapped when the excavation collapsed. The City Department of Buildings issued a full stop order to the Trustee for excavations without a permit. The Housing Preservation & Development Department then advised the Trustee that unless the Trust immediately obtained approval from the Buildings Department to do the work, HPD would correct the condition at the Trust’s expense. HPD gave the Trustee three days to request that Buildings approve. The Trust contacted Buildings the same day. HPD, however, commenced to correct the condition without waiting the three days. New York City subsequently billed the Trust for the remedial work in the amount of $338,592.56.

The Trustee sued the City to recover for property damage in the amount of $750,000. The City moved to dismiss, arguing that the complaint challenged the agencies’ determination, and thus should have been asserted as an Article 78 proceeding, the statute of limitations for which had passed. The New York Supreme Court granted the City’s motion.

The Appellate Division, Second Department, reversed and reinstated the Trustee’s complaint. The Appellate Division ruled that the Trustee’s complaint was timely because the complaint alleged a tort based on the City’s failure to provide the Trustee with an opportunity to take remedial action.

Abelesz v. City of New York, 105 N.Y.S.3d 908 (2d Dep’t 2019).

By: Edward Colligan (Edward is a New York Law School graduate, Class of 2020.)