Justice Robert McDonald
Toppin moved for summary judgment on liability against Church of God, among others, in this action to recover for damages sustained to property owned by plaintiffs. Church began construction of a two-story building on the subject site, and plaintiffs’ property allegedly sustained severe damage as a result of improper and deficient shoring and underpining during excavation. Plaintiffs sued alleging defendants were negligent and strictly liable for causing damage to the property. The court noted it found no case on the question of whether there was absolute liability under the new Administrative Code §3309.4, and adhered to the reasoning in Yenem Corp v. 281 Broadway Holdings holding the original purpose of shifting the risk of injury from an injured landowner to the excavator of adjoining land remained constant. Hence, to hold that a violation of the provision was merely evidence of negligence would defeat the legislation’s basic goal that those who undertake excavation work should bear its costs than adjoining landowners harmed by the work. Thus, plaintiff was entitled to summary judgment.
