Forst v Long Is. Power Auth.

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Forst v Long Is. Power Auth. 2015 NY Slip Op 31622(U) July 23, 2015 Supreme Court, Suffolk County Docket Number: 14-10675 Judge: Jr., Andrew G. Tarantino Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] - - · --INDEX No. SHORT FORM ORDER 14-10675 COPY SUPREME COURT - STATE OF NEW YORK I.AS. PART S - SUFFOLK COUNTY O PRESENT: Hon. MOTION DATE ADJ. DATE ANDREW G. TARANTINO. JR. Acting Justice of the Supreme Court 8-29-14 12-16-14 Mot. Seq.# 001-MotD --------------------------------·-------------------------------X HELENE FORST, JACK FORST, FRED BUTTI, MICHAEL FORST, AMY FORST, BARRY WAYNE,LARRYPENNY, BETHMORAN, i DAVID GRESHAM, SABRINA PAGANI, THOMAS A. 'PIACENTINE, FOUAD 1 CHARTOUNI, RICHARD DOTY, JOHN MCGUIRK, NANCY MCGUIRK, REBECCA : SINGER, STEPHEN BRADBURY, ROBERT l BARRON, SUSAN HOLGATE, EDOUARD J DEJOUX and other members of the class similarly [ situated with the named Plaintiffs, l l REILLY, LIKE, TENETY, ESQS. Attorney for Plaintiffs 179 Little East Neck Road North Babylon, New York 11702 GREENBERG TRAURIG, LLP Attorney for Defendants LIPA and PSEGLI 54 State Street, 6th Floor Albany, New York 12207 I J>laintiffs. I i l - against - : i LONG ISLAND POWER AUTHORITY (LIPA) and PUBLIC SERVICE ELECTRIC AND GAS COMPANY (PSEGLI), Defendants. ! l I -----------------------·-------------··-------------------------X Upon the following papers numbered 1 to~ read on this motion to d ismiss ; Notice of Motion/ Order to Show Cause and supporting papers I - ll ; Notice of Cross Motion and supporting papers _ ; Answering Affidavits and supporting papers 12 - 41 ; Replying Affidavits and supporting papers 42 - 46 ; Other affirmation, 43 - 48: memoranda oflaw. 49 - 50: 51 : 52 ; (a11d after hearing eottnsel in sttpport attd opposed to the n1otion) it is, ORDERED that the motion by defendants Long Island Power Authority and Public Service Electric and Gas Company to dismiss the complaint against them is determined as follows. In 2013, defendant Long Island Power Authority (LIPA) decided to upgrade its transmission and distribution systems to meet the projected growth in demand for electricity and to reinforce the reliability of the electrical system by construction of the East Hampton to Amagansett transmission line and [* 2] Forst v Long Island Power Authority Index No. 14-10675 Page 2 expansion of the Amagansett substation project. Defendant Public Service Electric and Gas Company (PSEGLI) has been assigned responsibility for the operation of the electrical system by LIPA. As a part of the project, 267 wood utility poles, covering 6.2 miles, were to be placed along the existing transmission lines. AKRF, Inc. was retained by defendant LIPA to prepare an Environmental Assessment Fonn (EAF), which is dated October 2, 2013. On September 25, 2013, a memorandum dated September 25, 2013 was sent from Michael Deering, Vice President ofEnvironmental Affairs, to Nicholas Lizanich, Vice President of Transmission and Distribution Operations, requesting approval of the Envirorunental Assessment and the issuance of a negative declaration for the proposed project. In a document dated September 25, 2013, LIPA issued a negative declaration, stating that pursuant to the requirements of the State Environmental Quality Review Act (SEQRA), the proposed action will not have a significant environmental impact and that a draft Environmental Impact Statement (EIS) will not be prepared. This action was commenced on behalf of certain residents in the Town of East Hampton who reside in close proximity to the utiiity poles. The complaint alleges that the poles and lines have caused serious injury and will continue to cause serious injury to plaintiffs. Specifically, the complaint alleges that the poles have been treated with a wood preservative containing pentachlorophenol (penta), which leaches into the soil surrounding the poles, and that it is a dangerous poison that causes serious injury to humans when its fumes are inhaled. It also alleges that the transmission lines transmit harmful and dangerous electric magnetic fields (EMFs), that the poles and lines have damaged the vegetation and scenic quality Qf East Hampton, and that they have significantly lowered the value of residential properties near the power lines. The amended complaint contains causes of action for physical taking, private nuisance, negligence, trespass, design defect, duty to warn, negligent infliction of emotional distress, fraud, and violation of the Environmental Conservation Law. Defendants now move to dismiss the complaint, arguing that the action is an untimely and impennissible collateral attack on a final administrative determination. They also argue the first eight causes of action should be dismissed for failure to state a cause of action and upon defenses based on documentary evidence. Furthennore, defendants argue the Court lacks subject matter jurisdiction over them with respect to the first eight causes of action because plaintiffs failed to comply with the notice of claim requirements. In support of their motion, defendants submit, among other things, copies of the environmental assessment form prepared by AKRF, Inc., the negative declaration, and the work permits issued to LIPA. Plaintiffs oppose the motion, arguing that they properly pleaded claims for taking, trespass and nuisance. Plaintiffs also argue that defendant LIPA failed to properly publish the negative declaration and provide notice to them regarding the use of penta on the electric poles. The Court notes that the sur reply filed by plaintiffs was not considered in the determination of this motion (see CPLR 2214; McMuUln v Walker, 68 AD3d 943, 892 NYS2d 128 [2d Dept 2009]; Boockvor v Fischer, 56 AD3d 405, 866 NYS2d 767 [2d Dept 2008]). Under CPLR 3211 (a)(l), a dismissal may be granted only if the documentary evidence submitted by the movant "conclusively establishes a defense to the asserted claims as a matter of law." (Held v Kaufman, 91 NY2d 425, 671 NYS2d 429 (1998]). On a motion to dismiss a complaint [* 3] Forst v Long Island Power Authority Index No. 14-10675 Page 3 pursuant to CPLR 3211 (a)(7), the Court must afford the complaint a liberal construction, accept all facts as alleged in the complaint to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, . 84 NY2d 83, 614 NYS2d 972 [1994]; Melnicke v Brecher, 65 AD3d 1020, 886 NYS2d 406 [2d Dept 2009]; Fishberger v Voss, 51 AD3d 627, 858 NYS2d 257 [2d Dept 2008]). If from the four comers of the complaint factual allegations are discerned which taken together manifest any cause of action cognizable at law, the motion will fail, regardless of whether the plaintiff will ultimately prevail on the merits (see Danna v Ma/co Realty, Inc., 51 AD3d 621, 857 NYS2d 688 (2d Dept 2008]; Bovino v Village of Wappingers Falls, 215 AD2d 619, 628 NYS2d 508 [2d Dept 1995]). The Court notes that as the amended complaint supersedes the original complaint (see Poly Mfg. Corp. v Dragonides, 109 AD3d 532, 970 NYS2d 589 [2d Dept 2013); Elegante Leasing, Ltd. v Cross Trans Svc, Inc., 11 AD3d 650, 782 NYS2d 919 [2d Dept 2004]), and the subsequent correspondence to the Court from counsel for both parties indicates their agreement that the amended complaint should be the topic of this motion, the Court will consider the dismissal motion as addressed to the amended compl. int (see Sobel v Ansanelli, 98 AD3d 1020, 951 NYS2d 533 [2d Dept 2012]; Union State Bank v a Weiss, 65 AD3d 584, 884 NYS2d 136 [2d Dept 2009]; Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 675 NYS2d 14 [lst Dept 1998]). Initially, the Court finds that contrary to defendants' contention that the first eight causes of action must be dismissed as to LIPA because plaintiffs failed to serve LIPA with a notice of claim, the requirement is not applicable in this case. The law has long recognized an exception to the notice of claim requirement where the primary purpose of the action is to enjoin a continuing wrong by a municipality, rather than to obtairi money damages (see Picciano v Nassau County CivU Serv. Commn,, 290 AD2d 164, 736 NYS2d 55 [2d Dept 2001); Robertson v Town of Carmel, 276 AD2d 543, 714 NYS2d 442 [2d Dept 2000]). Here, the first eight causes of action seek essentially equitable relief and the demand for money damages is incidental (see American Pen Corp. v City ofNew York, 266 AD2d 87, 698 NYS2d 472 [1st Dept 1999]; Fontata v Hempstead, 18 AD2d 1084, 239 NYS2d 512 [2d Dept 1963]). The first cause of action in the complaint, which is entitled "physical taking of property," does not allege a physical taking, but rather a regulatory taking. Under a takings claim, the contention is that the state has taken property for a governmental purpose or that it has gone "too far" in exercising its police power to regulate property and thus deprives the owner of all economically beneficial use (Town ofOrangetown v Magee, 88 NY2d 41, 643 NYS2d 21 [1996]). While the typical taking occurs when the government acts to physically intrude upon private property, governmental regulations which limit owners' rights to possess, use or dispose of property may also amount to a ''taking" of the affected property (Manocherian v Lenox Hill Hosp., 84 NY2d 385, 618 NYS2d 857 [1994]). Here, the complaint alleges that the placement of the poles by defendants greatly reduced the value of plaintiffs' property, rendering their property unmarketable. The Court rejects the contention by plaintiffs that the alleged lowered value of their property due to the close proximity of the transmission lines is sufficient to support a takings claim, and notes that the case cited in their opposition papers does not stand for that proposition. Accordingly, the first cause of action is dismissed. [* 4] Forst v Long Island Power Authority Index No. 14-10675 Page 4 With regard to the second cause of action, to recover damages for private nuisance, a plaintiff must establish an interference with his or her right to use and enjoy land, substantial in nature, intentional or negligent in origin, unreasonable in character, and caused by the defendant's conduct (see Copart Indus. v Consolidated Edison Co. ofN.Y., 41 NY2d564, 394 NYS2d 169 [1977]). Discomfort and inconvenience caused by the disturbance of property are valid grounds for recovery in an action for nuisance (see Dixon v New York Trap Rock Corp., 293 NY 509, 58 NE2d 517 [1944]). To constitute a nuisance, the use must be such as to produce a tangible and appreciable injury to neighboring property or to render its enjoyment specially uncomfortable or inconvenient (see Copan Indus. v Consolidated Edison Co. ofN. Y. supra). As a private nuisance claim involves the right to use and enjoy the land in question, no actual intrusion onto the plaintifrs property is required, and no actual damage to the property itself need be shown (Schillaci v Sarris, 122 AD3d 1085, 1087, 997 NYS2d 504 [2d Dept 2014]). Here, plaintiffs have sufficiently stated a cause of action for a private nuisance, as the complaint alleges that the leaching of penta into the soil and air, and the proposed emissions of high levels of EMFs onto plaintiffs' properties, interfere with their use and enjoyment of the land. To prevail on a cause of action alleging negligence, a plaintiff must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages (see Malone v County ofSuffolk, 128 AD3d 651, 8 NYS3d 408 [2d Dept 2015]). Here, plaintiffs' allegations sufficiently.allege that defendants owed plaintiffs a duty of care, and that they breached that duty and caused damages to plaintiffs when they installed the electric poles. In strict products liability, a manufacturer, wholesaler, distributor, or retailer who sells a product in a defective condition is liable for injury which results from the use of the product regardless of privity, foreseeability or the exercise of due care (see Godoy v Abamaster ofMiami, Inc., 302 AD2d 57, 754 NYS2d 301 [2d Dept 2003]). Here, plaintiffs have failed to sufficiently plead a cause of action for strict liability as defendants were not a manufacturer, wholesaler, distributor or retailer of the allegedly defective product. Thus, the causes of action for design defect and failure to warn are dismissed. "The elements of a cause of action sounding in trespass are an intentional entry onto the land of another without justification or permission" (Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 101 AD3d 853, 956 NYS2d 102 [2d Dept 2012); Carlson v Zimmerman, 63 AD3d 772, 882 NYS2d 139 (2d Dept 2009]; Woodhull v Town of Riverhead, 46 AD3d 802, 849 NYS2d 79 [2d Dept 2007]). Here, accepting the allegations set forth under the sixth cause of action as true, and affording plaintiffs the benefit of every favorable inference, plaintiffs adequately pleaded a cause of action to recover damages for trespass (see Hill v Murphy, 63 AD3d 680, 881 NYS2d 133 (2d Dept 2009]). While defendants are correct that there is no validity to plaintiffs' trespass claims relating to vapor intrusion or contamination of groundwater, plaintiffs have a valid trespass claim based on the alleged contamination of the soil (see Ivory v International Bus. Machines Corp., 116 AD3d 121, 983 NYS2d 110 [3d Dept 2014]). The seventh cause of action for negligent infliction of emotional distress is dismissed because the defendants' alleged conduct was not sufficiently outrageous to support such a claim (see Stein v 92n11 St. YM-YWHA, Inc., 273 AD2d 181, 710 NYS2d 68 [1st Dept 2000]). Moreover, a claim of negligent [* 5] Forst v Long Island Power Authority Index No. 14-10675 Page 5 infliction of emotional distress may not be entertained where, as in this case, it falls within the ambit of other traditional tort claims asserted by plaintiffs (see Fischer v Maloney, 43 NY2d 553, 402 NYS2d 991 [ 1978]; Butler v Delaware Otsego Corp., 203 AD2d 783, 610 NYS2d 664 [3d Dept 1994]). To plead a valid cause of action sounding in fraud, the complaint must set forth all the elements of fraud, including the making of material misrepresentations by the defendant to the plaintiff (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 919 NYS2d 465 [2011]). Here, the alleged misrepresentation involved defendants submissions in the Environmental Assessment Form, which stated that the subject project would not have a significant adverse impact on the environment, and misled the Town of East Hampton, a nonparty. The complaint, however, fails to allege material misrepresentations by defendants to plaintiffs. Thus, the cause of action sounding in fraud is dismissed. Finally, as to the ninth cause of action for violation of the Environmental Conservation Law, plaintiffs' challenge of the SEQRA negative declaration of defendants must be brought pursuant to an Article 78 proceeding. Under the circumstances and pursuant to CPLR 103 (c), the Court converts this portion of the complaint to a hybrid Article 78 proceeding. A SEQRA challenge is generally brought as a "special proceeding" under Article 78 and is subject to a four-month statute of limitations after the determination to be reviewed becomes final and binding upon the petitioner" (see CPLR 217; Save Pine Bush, Inc. v City ofAlbany, 10 NY2d 193, 518 NYS2d 943 [1987]). "For a determination to be final 'upon the petitioner' it must be clear that the petitioner seeking review has been aggrieved by it" (Matter ofMartin v Ronan, 44 NY2d 374, 380, 405 NYS2d 671 [1978]). "A detennination generally becomes binding when the aggrieved party is 'notified'" (Matter of Vil. of Westbury v Department of Transp. ofState ofN. Y. , 75 NY2d 62, 72, 550 NYS2d 604 [1989]). Further, the party seeking to assert the statute of limitations as a defense bears the burden to establish that its decision provided notice more than four months before the Article 78 proceeding was commenced (see Berkshire Nursing Ctr., Inc. v Novello, 13 AD3d 327, 786 NYS2d 209 [2d Dept 2004]; see also Matter of Vil of Westbury v Departnrent of Transp. ofState of N. Y., 75 NY2d 62, 550 NYS2d 604 [1989]; Matter of Chaban v Board ofEduc. of City ofN. Y., 20 I AD2d 646, 608 NYS2d 229 [1994]). To determine which event triggered the running of the statute of limitations, the Court must first ascertain the administrative decision for which petitioner is actually seeking judicial review and then find the point when the decision became final and binding and thus had an impact upon petitioner (see Monteiro v Town of Colonie, 158 AD2d 246, 558 NYS2d 730 [3d Dept 1990); Haggerty v Planning Bd. of Town ofSand Lake, 166 AD2d 791, 563 NYS2d 151 [3d Dept 1990]). Here, the statute of limitations began to run when the negative declaration was issued and filed (see Stop-The-Barge v Cahill, 1NY3d218, 771NYS2d40 [2003]; Wertheim vAlbertson Water Dist., 207 AD2d 896, 616 NYS2d 778 [2d Dept 1994]). However, a defendant seeking to establish a statute of limitations defense bears the burden of proving through documentary evidence that the action was commenced after the expiration of the statute of limitations period (see Matter ofRichmond Med. Ctr. v Daines, 1O1 AD3d 1434, 957NYS2d 764 [3 Dept 2012]; Matter ofSchwartz, 44 AD3d 779, 843 NYS2d 403 [2d Dept 2007]; Hoosac Valley Farmers Exchange, Inc. v AG Assets, Inc., 168 AD2d 822, 563 NYS2d 954 [3d Dept 1990]). In support of the motion, counsel for defendants submits a docwnent purporting to be the [* 6] Forst v Long Island Power Authority Index No. 14-10675 Page6 Ziemba v City of Troy, 295 AD2d 693, 743 NYS2d 199 [3d Dept 2002]; Gagliardi v Board ofAppe· ls a of Village ofPawling, 188 AD2d 923, 591 NYS2d 629 [3d Dept 1992]; Pickett v Town of Tusten Zoning Bd. ofAppetlls, 169 AD2d 906, 564 NYS2d 625 [3d Dept 1991]), or documentary evidence with a date-stamp. Absent prima facie proof of such filing, the burden does not shift to the party opposing the limitations defense (see Swift v New York Medical College, 25 Ad3d 686, 808 NYS2d 731 [2d Dept 2006]). In addition, all actions subject to SEQRA initially require the preparation of an EAF, whose purpose is to aid an agency "in determining the environmental significance or nonsignificance of actions" (see 6 NYCRR 617.2 [m]; see also 617.6 [a][2],[3]). After reviewing the EAF, the lead agency may issue a negative declaration if it concludes that "there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant" (6 NYCRR 617.7 [a][2]). Here, while the negative declaration is dated September 25, 2013, the EAF is dated October 3, 2013. Furthermore, absent from the record is proof of coordinated review or that LIPA contacted other involved agencies during the SEQRA process. Accordingly, the branch of defendants' motion to dismiss the ninth cause of action as untimely is denied. Defendants are directed to serve and file their answers to the petition within 1Odays of service of a copy of this order with notice of entry. Any party may re-notice this matter for hearing upon appropriate notice pursuant to CPLR 7804 (f). As to the surviving causes of action, all parties are directed to appear for a Preliminary Conference in PART 50 on SEPTEMBER 29, 2015 at 9:30AM. Dated:- JUL23- 2015 - -- - FINAL DISPOSITION _x_ NON-FINAL DISPOSmON

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