Greco v Incorporated Vil. of Freeport

[*1] Greco v Incorporated Vil. of Freeport 2007 NY Slip Op 51635(U) [16 Misc 3d 1129(A)] Decided on June 11, 2007 Supreme Court, Nassau County Palmieri, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 14, 2007; it will not be published in the printed Official Reports.

Decided on June 11, 2007
Supreme Court, Nassau County

Vincent Greco and Regina Greco, Plaintiff,

against

Incorporated Village of Freeport, Defendants.



3672/02



Genevieve Lane LoPresti, Esq.

Attorney for Plaintiffs

552 Broadway Ste. B

Massapequa, NY 11758

Incorporated Village of Freeport

Harrison J. Edwards,

Village Attorney

Attorney for Defendant

46 North Ocean Avenue

Freeport, NY 11520

Daniel R. Palmieri, J.

Upon the foregoing papers it is ordered that this motion pursuant to CPLR 3212 and, in effect, CPLR 3211(a)(5), for summary judgment dismissing the complaint on the ground that the action was commenced after the applicable statute of limitations had expired, is granted to the extent that the fifth cause of action sounding in negligence is dismissed, and the first, second and fourth causes of action sounding in nuisance and trespass are dismissed with regard to all acts complained of occurring prior to one year and ninety days of the filing of the summons and complaint, commencing the action. Upon a search of the record, the third cause of cause of action for a permanent injunction is dismissed as moot. The motion is otherwise denied.

This is an action sounding in public and private nuisance, trespass and negligence, all [*2]connected to the defendant Incorporated Village of Freeport ("Village" or "Freeport")'s operation of an electric generating facility located near the plaintiffs' home. Plaintiffs also seek a permanent injunction of the power plant's continued operation.

The complaint alleges that plaintiffs acquired title to a parcel and residence on East Bedell Street in Freeport in 1966, next to a marina which is described as "plaintiffs' adjoining premises." In 1969 or 1970, the Village erected a diesel and turbine powered electrical generating facility some 200-300 feet from the plaintiffs' property line.

All causes of action are based on the deleterious effects caused by the operation of the Village's facility. The plaintiffs allege that the plant was negligently and defectively designed and constructed, and that "[e]ver since the date of the installation and operation of the power plant" there has been shaking and vibration, with the infiltration of fumes and noise, at all hours of the day and night. The complaint further alleges that discharge of heated water has caused algae plumes and nuisance bacteria. Plaintiffs contend that these conditions have been detrimental to their health and general well-being, has caused damage to their property, and has impaired the operation of the marina and their property's rental and actual value.

On this motion the Village moves to dismiss based on the expiration of the applicable statute of limitations. In his moving affirmation its counsel avers that the action was commenced on June 2, 2002, and also claims that plaintiffs' own testimony establishes that the damage claimed occurred prior to March 1, 2001.Donald A. Perkins, the Electric System Operations Coordinator for Freeport Electric, has submitted an affidavit in which he states that in response to growing concerns about emissions, the Village voluntarily agreed in March 2002 to limit operation to emergencies, and to buy replacement power from the Long Island Power Authority. According to Perkins, the operation of the two diesel engines that supplied generating power was extremely limited from 1998 through 2004. Further, in 2003 a decommissioning project began, and was completed in April, 2004. The engines were completely disabled in August of 2004. Also submitted is the affidavit of Carolyn Thomas, the Village Clerk, who states that the only notice of claim from the plaintiffs was served on the Village on April 27, 2002 the summons and complaint were served on June 2, 2002.

Based on the foregoing, the defendant claims that all causes of action except the one sounding in injunction should be dismissed as time barred pursuant to the General Municipal Law, which provides that an action against a village must be commenced within one year and ninety days of the happening of the event upon which the claim is based. General Municipal Law § 50-i(1). As to the injunction claim, defendant claims that it should be dismissed as moot, as the power plant no longer is in operation.

In response, the plaintiffs contend that the action is not time-barred because the acts complained of are continuous, resulting in the accrual of a new cause of action every day. They support these contentions with the affidavit of Vincent Greco, one of the named plaintiffs, who describes the "recurrent, intermittent, and ongoing operation" of the power [*3]plant and its diesel engines, and the resulting effects on the plaintiffs, including significant health problems and property damage.

He also supports the plaintiffs' claims regarding the negligent design and operation of the plant by dint of his work history and education in the engineering field, and as a former employee of the Village. He states that for a period of time he was employed as a resident engineer, and even worked "to assist them in resolving the problems associated with the power plant usage." He thus asserts that he is personally familiar with the internal structure of the power plant and its diesel engines. He also presents a record of the plant's operation and proof of fuel usage, which he contends demonstrates heavy usage from February 2001 through February 2002, and adds that intermittent usage continued into 2004. He does not contest the defendant's assertion that the plant is now decommissioned and disabled from operating.

Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor (CPLR 3212 [b]), which may include deposition transcripts and other proof annexed to an attorney's affirmation. Olan v Farrell Lines, 64 NY2d 1092 (1985). Absent a sufficient showing, the court should deny the motion, irrespective of the strength of the opposing papers. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985).

If a sufficient prima facie showing is made, however, the burden then shifts to the non-moving party. To defeat the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR 3212 (b); see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980). The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. Donato, 141 AD2d 513 (2d Dept. 1988). Conclusory allegations are insufficient (Zuckerman v. City of New York, supra), and the defending party must do more than merely parrot the language of the complaint or bill of particulars. There must be evidentiary proof in support of the allegations. Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 AD2d 380 (2d Dept. 1994); Toth v. Carver Street Associates, 191 AD2d 631 (2d Dept. 1993).

However, the court must draw all reasonable inferences in favor of the nonmoving party. Nicklas v Tedlen Realty Corp., 305 AD2d 385 (2d Dept. 2003); Rizzo v. Lincoln Diner Corp., 215 AD2d 546 (2d Dept. 1995). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring a trial exist. Dyckman v. Barrett, 187 AD2d 553 (2d Dept. 1992); Barr v County of Albany, 50 NY2d 247, 254 (1980); James v. Albank, 307 AD2d 1024 (2d Dept. 2003); Heller v. Hicks Nurseries, Inc., 198 AD2d 330 (2d Dept. 1993).

Based on these well-established standards, the Court concludes that the defendant has [*4]made a prima facie showing that the statute of limitations operates to bar all claims to the extent they are based on occurrences that predate the filing of the summons and complaint by more than one year and ninety days. While the Court notes that the defendant has not annexed any deposition transcripts to the moving papers, rendering its assertions about plaintiffs' testimony without weight, the allegations contained in the complaint and the Perkins statement are sufficient. It has not, however, made a such a showing with regard to the nuisance and trespass claims to the extent they are based on events that occurred within that one year and ninety day period.

It is settled law that whether pleaded as trespass or nuisance, a continuous interference with a plaintiff's use or enjoyment of real property gives rise to successive causes of action, and would bar recovery only for damages occurring prior to the applicable period of limitations. See, 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48, 52 (1964); Rahabi v Morrison, 81 AD2d 434, 439 (2d Dept. 1981); Cranesville Block Co. v Niagra Mohawk Power Corp., 175 AD2d 444, 446 (3d Dept. 1991). As the time period applicable to the Village is one year and ninety days, damages are recoverable for that period of time prior to commencement of the action by the filing of the summons and complaint. General Municipal Law § 50-i(1).

Accordingly, in order to achieve complete dismissal of the first, second and fourth causes of action on statute of limitations grounds, the defendant must show that no act of which the plaintiffs complains occurred within one year and ninety days of the commencement of the action. As it is undisputed that the action was commenced in 2002, and the defendant acknowledges that there was some use of the subject power plant through 2004, it has not made a prima facie showing that it is entitled to this relief. Insofar as the motion seeks dismissal of the claims for this period, it must therefore be denied, irrespective of the strength of the opposing papers. Winegrad v New York Univ. Med. Ctr., supra. Based on the plaintiffs' submissions, it would have been denied in any event. Nicklas v Tedlen Realty Corp., supra. However, claims based on nuisance and trespass based on incursions that occurred earlier than one year and ninety days before the action was commenced are barred. 509 Sixth Ave. Corp. v New York City Tr. Auth., supra.

The cause of action in negligence is time-barred. A negligence claim against a municipality arises at the time of the act upon which the claim is based, and, unlike the nuisance and trespass claims, which are a series of continuous acts, the statute of limitations begins to run when the alleged negligent act first occurred. See, Klein v City of Yonkers, 53 NY2d 1011 (1981); Condello v Town of Irondequoit, 262 AD2d 940 (4th Dept. 1999). The failure to repair or correct the problem arising from the negligence described does not amount to a continuous wrong. Porcaro v Town of Beekman, 15 AD3d 377 (2d Dept. 2005). Here, defendant's acts of negligence are alleged to be the very design and construction of the power plant, which negligence plaintiffs contend became apparent the moment the facility started operating, producing immediate injury. Under the General Municipal Law section cited above and as alleged in the complaint, the defendant's act of negligence thus occurred, [*5]at the latest, in 1970. Accordingly, this claim can no longer be asserted.

Finally, as there is no factual dispute that the plant has been permanently shut down, the cause of action sounding in injunction barring further operation of the facility is moot. See Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City Landmarks Comm., 2 NY3d 727 (2004); SOS Oil Corp. v Norstar Bank of Long Is., 152 AD2d 223 (2d Dept. 1989).

The Court notes that it has not permitted a sur-reply as no new information relevant to the statute of limitations was presented in the Village's reply, but for purposes of the record preserves the letters from counsel regarding the request to submit such a paper. Moreover, to the extent the Village urges dismissal on the merits of the remaining claims, as opposed to the procedural grounds discussed in this decision, notice thereof was not given in the notice of motion, and the Court therefore should not address it. See, e.g., Vanek v Mercy Hosp., 135 AD2d 707 (2d Dept. 1987).

This shall constitute the Decision and Order of this Court.

E N T E R

DATED: June 11, 2007

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice