No Duty Shift Without Proven Refusal: Conditional Consent Preserves Strict Liability Under NYC BC § 3309.4

Introduction

In K.K. Machine Co., Inc. v. Grillo, 2025 NY Slip Op 05225 (App Div, 2d Dept Oct. 1, 2025), the Appellate Division, Second Department reversed a Supreme Court order that had dismissed strict liability claims under New York City Building Code § BC 3309.4. The case arises from sewer replacement work adjacent to a precision machining facility in Queens owned by K.K. Machine Co., Inc. (with Karel Hajek as its president). The City of New York, through its agencies and contractors, undertook soil and foundation work to replace sewers near the plaintiffs’ property, ultimately opting to install secant piles on City property to protect the plaintiffs’ structure during excavation.

The central dispute concerns whether the adjoining owner (the plaintiffs) “refused” to grant a protective access license requested by the City and its project team, thereby shifting—i.e., “devolving”—the Building Code’s duty to preserve and protect adjacent structures from the excavator to the adjoining owner. The decision also addresses whether certain project participants (an engineering/consulting firm and a design professional) could obtain summary judgment by asserting they did not “cause” the soil or foundation work within the meaning of § BC 3309.4.

The court’s ruling clarifies two practical points of New York City excavation law: (1) negotiated or conditional consent to access is not automatically a “refusal,” and unresolved evidence of conditional assent creates triable issues that preclude summary judgment on duty shifting; and (2) project participants seeking to avoid strict liability as non-causing parties bear a threshold burden to present evidence establishing that they did not “cause” the excavation work.

Summary of the Opinion

The Appellate Division reversed the Supreme Court’s order granting summary judgment to the City of New York, the Department of Buildings, Lorraine Grillo, Arcadis U.S., Inc., Applemon Engineering, PLLC, Northeast Remsco Construction, Inc., and Underpinning & Foundation Skanska, Inc. (collectively, the moving defendants). The strict liability claims under NYC Building Code § BC 3309.4 were reinstated.

Key holdings:

The moving defendants showed they “duly requested” a license to enter the plaintiffs’ property to inspect and install monitoring equipment. However, they did not eliminate triable issues of fact as to whether the plaintiffs actually “refused” access; plaintiffs offered evidence of conditional assent under protections allegedly agreed to by the City.
Because triable issues exist on refusal, the statutory duty to protect adjacent structures did not conclusively devolve to the plaintiffs as a matter of law, and strict liability claims under § BC 3309.4 could not be summarily dismissed.
As an alternative ground for affirmance, Arcadis and Applemon argued they were not persons who “caused” the soil/foundation work and thus fell outside § BC 3309.4. The court rejected that basis because those movants failed to meet their initial evidentiary burden on summary judgment.

Analysis

Precedents Cited

The court’s analysis is framed by established New York City excavation law:

Yenem Corp. v 281 Broadway Holdings, 18 NY3d 481 (2012): The Court of Appeals described the “specific legislative policy that in New York City those who undertake excavation work, rather than those whose interest in neighboring land is harmed by it, should bear its costs.” Yenem solidified the concept of strict/absolute liability for excavation-related damage to adjoining structures under the City’s Building Code predecessor provisions, and its policy rationale carries forward into § BC 3309.4.
American Sec. Ins. Co. v Church of God of St. Albans, 131 AD3d 903 (2d Dept 2015): Recognized that § BC 3309.4 imposes strict or absolute liability for excavation work that causes damage to adjoining property. This case supports applying § BC 3309.4 as a strict liability regime—liability attaches without regard to negligence if statutory conditions are met.
211-12 N. Blvd. Corp. v LIC Contr., Inc., 186 AD3d 69 (2d Dept 2020): Clarified two reciprocal aspects of § BC 3309.4: (a) the excavator’s duty to “preserve and protect” adjoining structures, and (b) the adjoining owner’s obligation to grant a license for access so the excavator can perform protective measures. Critically, if a “duly requested” license is refused, the duty to protect “devolves to” the adjoining owner. The present decision applies and nuances this framework by emphasizing what counts as a “refusal.”
Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 (1983): Stands for the principle that an appellate court may affirm on any ground supported by the record. Here, the defendants invoked it to argue for affirmance on the alternate theory that they did not “cause” the work. The Appellate Division declined because the evidentiary showing was insufficient.
Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985): Reiterates the summary judgment standard: a movant must make a prima facie showing of entitlement to judgment as a matter of law; failure to meet this burden mandates denial regardless of the sufficiency of the opposing papers. The court applied Winegrad to reject the alternative “not a causing party” arguments by Arcadis and Applemon.

Legal Reasoning

Section BC 3309.4 states, in pertinent part: “Whenever soil or foundation work occurs, regardless of the depth of such, the person who causes such to be made shall, at all times during the course of such work and at his or her own expense, preserve and protect from damage any adjoining structures.” Under 211-12 N. Blvd., the adjoining owner must grant a protective license; if “duly requested” and “refused,” the protection duty shifts to the adjoining owner.

The core analytical steps in this appeal are:

Duly requested license established. The moving defendants made a prima facie showing that the City duly requested access in August 2019 to conduct baseline surveys, inspections, photographs, and to install monitoring points and vibration devices—i.e., protective measures contemplated by § BC 3309.4.
But refusal not conclusively established. The same submissions also revealed evidence that the plaintiffs responded with conditional assent: they sought to be added as additional insureds and, after an October 21, 2019 meeting, asserted the City and its contractor agreed to provide insurance and other protections. The plaintiffs sent a confirming letter setting forth conditions allegedly “verbally promised.” The City did not sign the letter, did not access the site, and proceeded with secant pile installation and excavation adjacent to the property. This record, the court held, raised triable issues of fact as to whether the plaintiffs refused access, as opposed to granting access conditioned on agreed protections.
Consequent denial of summary judgment on duty shift. Because a definitive “refusal” is a predicate to shifting the duty to protect to the adjoining owner, and because factual disputes exist on refusal, the moving defendants were not entitled to judgment as a matter of law dismissing the strict liability claims.
“Person who causes” burden not met by certain movants. On their alternative argument, Arcadis and Applemon contended they were not parties who “cause[d]” the soil or foundation work and thus fell outside § BC 3309.4. Applying Winegrad, the court ruled they failed to meet their initial evidentiary burden as movants, so summary judgment could not be affirmed on that ground. The decision does not resolve the ultimate question whether such entities can be liable; it simply holds that the present record does not warrant summary judgment for them.

Impact

This decision refines the practical operation of § BC 3309.4 in two important respects:

Conditional consent and negotiations can defeat a “refusal” theory at the summary judgment stage. Excavators and project teams must document a clear, unequivocal refusal to access by the adjoining owner to trigger the devolution of the protection duty. Where the adjoining owner proposes reasonable risk-transfer or safety conditions (e.g., additional insured status, monitoring, protective measures) and the project team engages in discussions or indicates agreement, whether access was “refused” becomes a fact question impeding summary judgment. Practically, this discourages precipitous reliance on a duty-shift theory while negotiations are ongoing.
Burdened movants on “causing party” issue. Consultants, construction managers, and design professionals seeking to avoid § BC 3309.4 cannot simply assert non-involvement. They must marshal evidence demonstrating they did not “cause” the excavation—e.g., lack of control, direction, or contractual authority over the soil or foundation work. Absent such proof, courts will deny summary judgment, preserving claims for factual development.

For owners and contractors, the ruling underscores the importance of:

Making and preserving a “duly requested” access record that is clear, specific, and comprehensive.
Responding to conditional consents and documenting whether terms are accepted, modified, or rejected; ambiguity will cut against a duty-shift argument.
Maintaining robust pre-construction surveys, photographic baselines, and vibration/settlement monitoring to meet the statutory obligation to protect adjoining structures.
Clarifying in contracts and communications who directs and controls excavation decisions to manage potential § BC 3309.4 exposure.

Complex Concepts Simplified

Strict (absolute) liability under § BC 3309.4: Liability that does not depend on proving negligence. If excavation or foundation work causes damage to an adjoining structure, the “person who causes” the work is liable for protection failures, reflecting a policy that excavators bear the cost of risks they create.
License to enter / protect: To perform protective measures, the excavator typically needs access to the neighbor’s property. The Building Code places a reciprocal obligation on the neighbor to grant such a license when duly requested so the excavator can comply with its protective duty.
Devolution of duty upon refusal: If the adjoining owner refuses a duly requested license, the duty to protect shifts to the adjoining owner. But the excavator must be able to show an actual refusal; ongoing negotiations or conditional assent create factual disputes.
“Person who causes” the work: The statutory phrase can encompass the party or parties who direct, control, or set in motion the excavation/soil/foundation work. Determination is fact-specific; contractors, owners, or other project participants may be included depending on their roles. On summary judgment, the movant must present evidence negating such status.
Summary judgment standard: The moving party must establish entitlement to judgment as a matter of law by eliminating all triable issues of fact. Failure to meet that initial burden mandates denial without regard to the opponent’s papers.
Secant piles and underpinning (context): Underpinning stabilizes an existing structure’s foundation; secant piles create an interlocking pile wall on the project side to retain soil and limit movement. Both are protective methods relevant to compliance with § BC 3309.4’s duty to preserve adjacent structures during excavation.

Conclusion

K.K. Machine Co., Inc. v. Grillo reinforces that New York City’s excavation regime is fundamentally protective of adjoining structures and skeptical of attempts to shift the statutory duty without a clear, documented refusal of access. Conditional consent and negotiations for reasonable risk allocation—such as additional insured status and monitoring—can preclude summary judgment on the theory that an adjoining owner refused access, thereby preserving strict liability claims under § BC 3309.4.

The decision also serves as a procedural reminder: entities that contend they did not “cause” the soil or foundation work must substantiate that position with competent evidence to obtain summary judgment. Absent such proof, courts will allow § BC 3309.4 claims to proceed for factual resolution.

In the broader legal context, the ruling aligns with the Court of Appeals’ policy in Yenem allocating excavation risks to those who create them, while refining Second Department guidance in 211-12 N. Blvd. on when and how the protection duty can shift. Going forward, parties should expect closer scrutiny of access negotiations and sharper demands for evidentiary clarity on who truly “caused” excavation work when seeking early dismissal.