Legal Question in Construction Law in New York

Re: Possible Foundation Damage

These cases are never easy. There are several legal standards that apply, and the final outcome is unpredictable.

The one certain thing is that you should have an attorney look at your insurance policy: you may have an obligation to notify the insurance company of these events, even if you do not (yet) have a loss or a claim. The insurance company might even pay to have the foundation inspected: one would have to read the policy to tell. Do not worry too much about the failure to tell the insurance company back in June 2005...the law in this area is fuzzy about when the obligation to notify the carrier becomes due. However, the insurance checkup is a little bit overdue.

The legal case you present here goes to the obligation of lateral support that every parcel of real estate owes to its neighbors.

The technical standard for "lateral support" goes the question whether there has been subsidence of land that would have occurred even if the land was in its natural condition. To put it the other way, if the subsidence was caused by the fact that the land was holding up your house, then the neighbor has less exposure to a claim from you. A second line of inquiry would be to doublecheck the Hempstead Town Building Ordinance against what the neighbor did. One item that comes to mind is Section 29.6 of the Town Building & Zoning Ordinance, which says (for Residence AA zones):

� 29.6. Excavations.

No excavation for purposes other than the construction of a driveway, walk, a permitted wall or building or part thereof or accessory thereto or to remove topsoil from one part of the lands of an owner to another part of the same premises, when such removal is necessary as an accessory use or is for the purpose of farming or improving said property, shall be made unless approved by the Board of Zoning Appeals.

There are similar provisions for other building zones.

IF the excavation caused damage to your house...and if you are in a Building Zone that requires a permit for this excavation...and a permit was not secured (or if there was funny stuff, such as perjured affidavits of service of the notice of the application on you) then you can certainly sue, and you might even win that lawsuit.

You should consult with a lawyer. And look I'm not far away from Malverne, am I? Feel free to call; I make house calls; and we can certainly take a look at what's going on.

The bottom line is that there is no immediate or easy answer to your questions, but it would not be a bad idea to talk to a lawyer about these issues. If you write back to me at [email protected] with your contact information, I will respond and we can make arrangements for a meeting.