Judge Denies Namibia’s Appeal

     (CN) – The 2nd Circuit denied the Republic of Namibia’s appeal of its alleged failure to comply with the New York City Building Code, saying that there is “at a minimum, evidence of negligence and can give rise to tort liability under New York law.”
     The case stems from the Republic’s December 2008, when renovation of a Manhattan townhouse to make it suitable for a diplomatic mission. During the renovation, Federation Development Corporation, the Republic’s contractor, hired Ryback Development (both named defendants in the case) as a subcontractor to pour concrete to reinforce a wall between their property and that of a neighbor.
     During this work the existing wall collapsed, causing substantial damage to the adjacent property. Owner Robert Adelman filed a claim with USAA, which paid him $397,000 for his damages. USAA as subrogee then brought suit against the contractors and the Namibian Mission in New York Supreme Court in April 2010, claiming negligence, nuisance, trespass and ultrahazardous activity.
     The Republic then sought to have the charges dismissed on grounds that the District Court “lacked subject matter jurisdiction over the Mission because it is entitled to sovereign immunity.”
     The District Court dismissed the counts for nuisance, trespass and ultrahazardous activity in November 2010, but ruled that the Mission “was not entitled to sovereign immunity” and denied the complete dismissal of the case because it “falls squarely within the tortious activity exception.”
     The Mission appealed, arguing they should be freed from liability “for negligence of independent contractors who were hired to renovate a building.”
     The 2nd Circiot upheld that ruling, noting that the NYC Building Code “imposes upon the person causing construction within a building the duty to maintain the structural integrity of party walls and to take all necessary steps to protect such walls.”
     Since the Mission is the owner of the property and hired the contractor to perform the work, “the regulation imposes its duty of care directly upon the Mission.”
     The decision continues, “The failure to comply with a duty imposed by the Building Code is, at a minimum, evidence of negligence and can give rise to tort liability under New York Law.”
     The court concluded that “although the Mission was not under an obligation to construct the chancery at any particular location, once it decided to do so it could not disregard the non-delegable duty of care imposed upon it by the New York City Building Code.”
     It held “the obligation to protect the party wall was not discretionary, and that the Mission cannot avail itself of the protections of the Foreign Sovereign Immunities Act’s discretionary function exception.”

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