In the interest of avoiding building collapses and serious possible resulting injuries, the Administrative Code of City of New York § 26–235 provides for the sealing off of and/or destruction of dangerous structures by the city. This provision allows the city to destroy any structure or premises that may become dangerous or unsafe to passersby, or alternatively, to make the building secure again. Any such building that is vacant and not continuously guarded must be sealed by the owner in a manner approved by the commissioner to avoid unauthorized entry. If no such security is provided, it shall be deemed a dangerous structure and becomes a prime target for destruction of the city. The decision of the city to abate such an unsafe or dangerous condition threatens the health, safety and welfare of the public is a valid exercise of its police power, but may no be made arbitrarily and must be a reasonable and legitimate response to the situation.
In Marigin v. City of New York, 215 A.D.2d 539, 626 N.Y.S.2d 503 (2d Dept. 1995), for example, the court found that the city had established that the demolition of three buildings which had been severely damaged by fire was due to immediate emergency, precluding relief against city in action for injury to property. This decision was the result of the city presenting evidence demonstrating that these buildings created an emergency condition threatening safety of public and that it had properly concluded that demolition of buildings was required in order to abate such potential life threatening collapses.
The city’s reasoning behind demolition of a building must essentially prove that no alternatives remained aside from demolishing the building to preserve the safety of persons in the vicinity. This exercise of police power even allows the city to demolish a building without providing notice and an opportunity to be heard if there are exigent circumstances which require immediate demolition of the building to protect public from imminent danger.
A cause of action for damages due to wrongful demolition may exist, however, when the city’s reasoning is insufficient to show, as a matter of law, that there was imminent danger such that it was reasonable for it to exercise its emergency police powers and demolish building without resorting to expedited proceedings provided for by city administrative code. Such was the case in Rapps v. City of New York, 54 A.D.3d 923, 864 N.Y.S.2d 130 (2d Dept. 2008), where city officials did not testify that they thought the building was in imminent danger of collapse, and when one official was asked why he made decision to demolish building, he indicated that it was winter and cold and he was afraid that after it was vacated and boarded up, vagrants and homeless people would somehow find their way in. The court in this case decided against the city, finding that although there was some evidence of imminent internal collapse and the inability to prevent squatters from reentering the plaintiffs’ building, the defendant failed to make a showing of entitlement to judgment as a matter of law by proffering evidence that immediate demolition of the building was required by an emergency situation, i.e., the building was in imminent danger of collapse and posed an immediate peril to the public health and safety.