When the Court of Appeals decision in Yenem Corp. v. 281 Broadway came down in 2012 it signaled a potential avalanche of strict liability claims against persons that “cause an excavation to be made.”  The question remained: who causes an excavation to be made?  Clearly the owner of the property and the contractor that performs the excavation “cause it to be made.”  The more interesting question has been whether and architect and/or engineer that are involved with excavation “cause the excavation to be made” and, as such, may be held strictly liable under Yenem and Section 3309 of the NYC Building Code.

While the question remains open, the First Department sent out a signal last week in what may be the first appellate division commentary on the issue.  In 87 Chambers, LLC v. 77 Reade, LLC the First Department stated that the engineer’s motion for summary judgment dismissing the 3309.4 claim against it was properly denied.  The decision indicates that an engineer may face strict liability under Section 3309, and be a person who “causes an excavation to be made” where the evidence establishes that the design professional “substantially contributed to the design and methodology employed during the excavation process.”  In this instance, the court found there were questions of fact as to whether the engineer was such a substantially contributing factor.  However, the reasoning, in this writer’s opinion, is a loud signal that design professional do indeed face strict liability and the First Department may have just given us the first outline of the test for liability.  Stay tuned as other departments chime in on this critical issue.