Sanders v. Schiffer , 46 A.D.2d 536 ( 1975 )

Kane, J.

The parties to this action are adjoining residential property owners in the City of Albany. The contour of their land is sudh that defendants ’ land is several feeLbelow that of the plaintiffs.' As a result of certain improvements to plaintiffs’ property, and, in particular ¡the construction of a garage addition near the mutual boundary, a retaining wall on defendants’ premises was adversely affected to the extent that its removal was required. It then became necessary for plaintiffs to install a lightweight steel piling on their land to support their higher elevation and the structures thereon. The within action was commenced seeking damages for the expenses incurred in the construction of the steel piling, together with a request for injunctive relief to prevent the defendants from further removing lateral support at the mutual boundary. Plaintiffs have also filed a notice of pendency.

The owner of land contiguous to land owned by another upon which a building is erected is not obligated to protect the owneir of that building from damages which may result thereto from excavation on his own land in the absence of any right by prescription or grant in the owner -of the building to have it supported 'by the land of the person engaged in the excavation (Booth v. Rome, Watertown & Ogdensburg Term. R. R. Co., 140 N. Y. 267; Radcliff’s Executors v. Mayor etc. Brooklyn, 4 N. Y. 195). Any recovery for loss of lateral support accrues only for resulting damages to the soil itself as opposed to those damages resulting from injuries to a building. In the absence of negligence or some special circumstance, there is no cause of action for lateral support between adjacent landowners except when the land is in its natural state (White v. Nassau Trust Co., 168 N. Y. 149; Booth v. Rome, Watertown & Ogdensburg Term. R, R. Co., supra; Benner v. Atlantic Dredging Co., 134 N. Y. 156; Hay v. Cohoes Co., 2 N. Y. 159).

An examination of plaintiffs’ complaint in light of these traditional principles of common law clearly reveals there can be no cause of action predicated on a right of lateral support in this case, and the motion to dismiss should have been granted. It necessarily follows that since plaintiffs have no interest in the lands of defendants the notice of pendency should be canceled (Braunston v. Anchorage Woods, 10 N Y 2d 302).

The orders should be reversed, on the law and the facts; the motion to dismiss the complaint, on the merits, and the motion canceling the notice of pendency should be granted, without costs.