Bloomingdales Inc. v New York City Tr. Auth.

[*1] Bloomingdales Inc. v New York City Tr. Auth. 2006 NY Slip Op 51642(U) [13 Misc 3d 1202(A)] Decided on July 14, 2006 Supreme Court, New York County Lippmann, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 14, 2006
Supreme Court, New York County

Bloomingdales Inc., Plaintiff,

against

The New York City Transit Authority, Defendant,



100214/03

Robert D. Lippmann, J.

The second third-party defendant and third third-party plaintiff Judlau Contracting, Inc. (Judlau) moves, pursuant to General Municipal Law §§ 50-e and 50-i, Public Authorities Law § 1212, and CPLR 214, 3211 (a) and 3212 (b), for an order dismissing the complaint on the ground that it is barred by the statute of limitations.

The third-party defendant and second third-party plaintiff M-Track Enterprises, Inc. (M-Track) cross-moves, pursuant to General Municipal Law §§ 50-e and 50-i, Public Authorities Law § 1212, and CPLR 214, 3211 (a) and 3212 (b), for an order dismissing the complaint on the ground that it is barred by the statute of limitations.

The defendant and third-party plaintiff New York City Transit Authority (Transit Authority) cross-moves, pursuant to General Municipal Law §§ 50-e and 50-i, Public Authorities Law § 1212, and CPLR 214, 3211 (a) and 3212 (b), for an order dismissing the complaint on the ground that it is barred by the statute of limitations.

The plaintiff Bloomingdales Inc. (Bloomingdales) occupies the real estate located at 1000 Third Avenue in Manhattan. In September 1999, the defendant Transit Authority performed excavation work on Third Avenue between 59th and 60th Streets. This is an action to recover damages for basement flooding, allegedly caused when the Transit Authority's work severed Bloomingdales' underground lateral storm drain pipe. After hiring an expert to investigate the source of the water backing up, in February 2002, Bloomingdales discovered the cause of the problem. A notice of claim was served on April 19, 2002. This action was commenced in January 2003.

The complaint pleads causes of action for negligence, common-law trespass, and private nuisance. The third-party actions were commenced against the contractors that, allegedly, actually performed the work.

In support of their motions to dismiss, the movants argue that this action was untimely commenced, and that it is barred by the applicable statute of limitations. In opposition to the motions, the plaintiff Bloomingdales argues that it timely filed a notice of claim, and that the action is not time barred. Bloomingdales also argues that the cause of action for nuisance is timely under the doctrine of continuing tort.

To dismiss a claim because it is barred by the statute of limitations, the movants bear the initial burden of establishing prima facie that the time in which to sue has expired. Once the initial prima facie showing is made, the burden then shifts to the plaintiff to aver evidentiary facts establishing that the case falls within an exception to the statute of limitations (Savarese v Shatz, 273 AD2d 219 [2d Dept 2000]).

The moving defendants establish, prima facie, that Bloomingdales' causes of action to recover damages for tort, accrued, and the relevant statute of limitations began to run, upon the severing of the drain pipe, and not when Bloomingdales allegedly discovered the source of its basement flooding (see.e.g., Germantown Cent. School Dist. v Clark, 100 NY2d 202 [2003]; Paoletti v Karian, 266 AD2d 691 [3d Dept 1999]). Therefore, this action was untimely commenced in January 2003, more than one year and 90 days after the cause of action accrued in September 1999 (General Municipal Law § 50-i [1] [c]; Public Authorities Law § 1212).

In the instant case, the applicable statute of limitation is one year and 90 days (Public [*2]Authorities Law § 1212(2); Pilgrim v New York City Transit Authority, 235 AD2d 527 [2d Dept 1997]). Public Authorities Law § 1212 (2) requires that an action "founded on tort" shall not be commenced against defendant authorities more than one year and 90 days "after the happening of the event upon which the claim is based." General Municipal Law § 50-i, like Public Authorities Law § 1212, requires that any action for personal injury or property damage sustained by reason of the negligence or wrongful act of a municipality has to be commenced within one year and 90 days after the happening of the event (Collins v City of New York, 55 NY2d 646 [1981]; Melendez v Manhattan and Bronx Surface Transit Operating Authority, 137 AD2d 390 [1st Dept 1988]).

Contrary to Bloomingdales' assertion, its cause of action for nuisance is also time-barred. The essence of private nuisance is interference with the use and enjoyment of land (Copart Industries, Inc. v Consolidated Edison Co. of New York, 41 NY2d 564 [1977]). With respect to a nuisance actively created by the defendant, so long as the condition continues, so may the liability of its creator (Restatement, Second, Torts § 834, comment 1). It is a well-settled principle that continuous injuries to real estate caused by the maintenance of a nuisance create separate causes of action barred only by the running of the statute against the successive trespasses (Jensen v General Elec. Co., 82 NY2d 77 [1993]; 509 Sixth Ave. Corp. v New York City Transit Authority, 15 NY2d 48 [1964]; Galway v Metropolitan El. Ry. Co., 128 NY 132 [1891]).

However, here, the drain water did not emanate from the Transit Authority's property. Rather, the source of the water was Bloomingdales' own roof drain. Because all liability has its genesis in the act of severing the pipe, there was no continuing tort. Bloomingdales' claim accrued when the pipe was severed, and not each time the rain flooded Bloomingdales' basement, it being a novel proposition that a claim once accrued, accrues yet again upon inclement weather (Nebbia v County of Monroe, 92 AD2d 724 [4th Dept], appeal denied 59 NY2d 603 [1983]).

Finally, although the notice of claim requirements of General Municipal Law § 50-e are not applicable where the plaintiff seeks equitable relief to abate or enjoin a nuisance and the demand for money damages is incidental and subordinate to the requested injunctive relief (Stanton v Town of Southold, 266 AD2d 277 [2d Dept 1999]), here, Bloomingdales cannot avoid the notice of claim requirement in General Municipal Law by characterizing its claim as one primarily in equity to enjoin a continuing trespass, rather than one for damages based on tort (Smith v Scott, 294 AD2d 11 [2d Dept 2002]).

Accordingly, it is

ORDERED that the motions and the cross motions for summary judgment are granted and the complaint is dismissed with costs and disbursements to the moving defendants as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

Dated: ________________

ENTER:

_______________________

J.S.C. [*3]