The following papers have been considered by the Court on this motion submitted February 9, 2018Papers NumberedNotice of Motion w/ annexed supporting pape 1Memorandum of Law in Opposition 2Affirmation in Reply 3 By this action, plaintiffs seek to recover monies for property damage allegedly resulting from certain construction work authorized by defendant, under the theories of negligence/continuous tortious conduct (First Cause of Action), continuing trespass (Second Cause of Action), continuing nuisance (Third Cause of Action), and misrepresentation/fraud (Fourth Cause of Action). Defendant now moves, pursuant to CPLR §3211(a)(5), for an order dismissing the complaint as time-barred. The motion is decided as follows. In their complaint, plaintiffs allege that in or around Spring 2007, defendant retained contractors to install a catch basin in the street in front of their property. In the course of such installation, a backhoe broke the main sewer line running the length of the street, the waste pipe connecting plaintiffs’ property to the main sewer line, and the water main connecting plaintiffs’ house to defendant’s water service. Thereafter, the same contractors made repairs to each of the broken pipes before installing the catch basin, refilling the excavation, and re-tarring the street.Plaintiffs further allege that on or about February 4, 2017, waste water began flowing into their kitchen sink. Assuming a blockage in the waste pipe, they contacted Roto-Rooter to snake the pipe. When it happened again in or around April 2017, plaintiffs engaged AWS Mechanical (“AWS”), to investigate the cause. Upon examination, AWS informed plaintiffs that the backflow of waste water was related to the pipe itself. Plaintiffs then contacted Roto-Rooter to snake the pipe again and restore sewer service. However, after conducting a visual inspection of plaintiffs’ waste pipe, Roto-Rooter found that the area or joint connecting plaintiffs’ waste pipe to the main sewer line had separated, “allowing ‘heavy root infiltration’, and ‘preventing proper flow’ of waste water” (Marten complaint at 16). On or around April 11, 2017, plaintiffs had the pipe repaired.Additionally, plaintiffs assert that before commencing repairs they notified defendant. Moreover, they allege that the Superintendent of the Village’s Department of Public Works observed the repair work while it was in progress, and directed them to submit their expenses to the Village of Lynbrook for reimbursement. Plaintiffs state that on or about April 17, 2017, Mr. Marten hand-delivered a letter to defendant’s office, detailing what had occurred, along with receipts totaling the claimed amount. In May 2017, defendant served plaintiffs with a notice scheduling a GML §50-h hearing, which took place on July 7, 2017. Following the hearing, plaintiffs state that defendant declined to reimburse them. Thereafter, plaintiffs commenced this action by filing their Summons and Complaint on September 21, 2017.General Municipal Law Section 50-i(1)(c), provides that an action against a municipality for property damage must be commenced “within one year and ninety days after the happening of the event upon which the claim is based” (GML §50-i[1][c]). “[C]ourts have uniformly concluded that the limitation period begins to run upon the happening of the event, irrespective of when the action accrued” (Sniper v. City of Syracuse, 139 AD2d 93, 94-95 [4th Dept 1988]; Klein v. City of Yonkers, 53 NY2d 1011, 1013 [1981]). Thus, in order to achieve dismissal of the action on statute of limitations grounds, “defendant must show that no act of which the plaintiffs complain occurred within one year and ninety days of the commencement of the action” (Greco v. Incorporated Vil. of Freeport, 16 Misc3d 1129[A] at *2 [Sup Ct, Nassau County 2007]).Negligence and Continued Tortious ConductBased upon a fair reading of the complaint, plaintiffs claim that defendant’s first act of negligence was its failure to properly and adequately repair plaintiffs’ waste pipe when first made in 2007 while defendant’s continuous tortious conduct includes having caused plaintiff to incur monetary damages “to remediate” in April 2017 (complaint at36) and its subsequent refusal to reimburse the cost of same.“The statute of limitations for a negligence claim against a municipality begins to run when the alleged negligent act first occurred” (id. at *4). Thus, plaintiff’s claims of negligence are clearly time barred if they stem solely from the allegedly negligent installation of the catch basin in 2007 (see Liston v. Town of Newburgh, 90 AD3d 861 [2d Dept 2011] [limitations period measured from negligent installation of storm drainage system in May 2007, not resultant property flooding in March 2008]; see also Demasi v. Dutchess County Dept. of Pub. Works, 101 AD3d 668 [2d Dept 2012] [happening of the event was completion of construction and installation of drainage system in 1994, not resulting pollution of property]).However, plaintiffs’ claim of neglience/continued tortious conduct, when considered in the context of plaintiffs’ attempt to collect only the costs of unsuccessful attempted repair on February 4, 2017 ($384.53), diagnosis on April 7, 21017 ($172.71) and successful repair on April 11, 2017 ($5,244.00), focuses on the defendant’s failure to repair or reimburse plaintiffs for the cost of said repair after demand made on April 17, 2017.As stated in 461 Broadway, LLC v. Village of Monticello, 144 AD3d 1464, 1465-1466,We reach a different conclusion with respect to plaintiff’s alternative claim that defendant failed to properly maintain and/or repair its sewer and water mains. It is settled that a municipality is under a continuing duty to maintain and repair its sewage and water systems and this duty is independent of the duty not to create a dangerous or defective condition and this duty is independent of the duty not to create a dangerous or defective condition. The breach of this ongoing duty is the ‘event’ that forms the basis for the claim for purposes of General Municipal Law §50-i. Thus, defendant’s negligence, if any, in failing to maintain or repair its water and/or sewage system constitutes a continuing wrong that gives rise to a new cause of action for each injury that occurred. Plaintiff’s recoverable damages, however, are limited to those caused by the alleged unlawful acts sustained within 90 days preceding the date of filing of the notice of claim. (Internal quotations and citations omitted)With the limited exception of the $557.24 spent on the unsuccessful February, 2017 repair and April, 2017 diagnosis, plaintiffs seek no damages for what transpired as result of the 2007 repair. The April 11, 2017 repair costing $5,244.00 relates directly to defendant’s alleged failure to perform on its continuing duty to repair either by independently arranging and incurring the cost of same once the need for repair became apparent on April 11, 2017 or reimbursing plaintiffs for the reasonable cost of said repair. Thus, the defendant’s reliance on cases in which plaintiffs sought recovery for property damage caused by the municipalities’ long ago prior conduct is largely misplaced.As defendant concededly received plaintiffs’ notice of claim on April 17, 2017 and plaintiffs’ action was commenced on September 21, 2017, plaintiffs’ first cause of action is not subject to dismissal as being time barred by GML §50-i dismissed to the extent it seeks to compel reimbursement for the reasonable costs of repair.Continued Trespass and Continued NuisanceTurning to plaintiffs’ second and third causes of action, plaintiffs allege that defendant’s “failure to ensure lasting, durable seals at the joint where plaintiffs’ waste pipe is affixed to the sewer line” constitutes a continuing trespass and continuous nuisance, by permitting roots and other debris into the pipe. Plaintiffs further allege that this infiltration interfered with their right of access to the sewer line on a continuous basis until April 2017. “The essence of trespass is injury to the right of possession, and such trespass may occur under the surface of the ground.” (New York State Elec. & Gas Corp. v. County of Chemung, 137 AD3d 1550, 1555 [3d Dept 2016]). A nuisance, in this context, is defined as an interference with another’s interest in the private use and enjoyment of land (see generally Copart Indus. v. Consolidated Edison Co. of N. Y., 41 NY2d 564, 568 [1977]). Furthermore, “[i]t 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” (Greco v. Incorporated Vil. of Freeport, 16 Misc3d 1129[A] at *3).In this matter, and notwithstanding the inartful drafting of these causes of action, the vast majority of the recovery for which plaintiffs seek recovery involves a failure by defendant to repair or reimburse for the cost of the sewer repair after allegedly being advised by plaintiffs of the need to do so and well within the period for which the notice of claim and commencement of the action was required under GML §50-i. In view of same, dismissal of these causes of action are also denied.Misrepresentation/FraudAs the only allegations of misrepresentation involve statements made in 2007, these are clearly time barred.In sum, defendant’s motion to dismiss is denied with respect to plaintiff first, second and third cause of action to the extent that plaintiffs’ recovery is limited to the period of 90 days prior to the April 17, 2017 notice of claim. Plaintiffs’ fourth cause of action is dismissed in its entirety.To insure that this action does not languish it shall appear on the pre-trial calendar of this court District Court, Nassau County, Civil Part 3, Room 259, 99 Main Street, Hempstead, New York 11550 on June 1, 2018. The parties shall appear on that date at 9:30 AM with authority to pursue settlement, and failing that, to schedule remaining discovery and the filing of a Notice of Trial.All parties are forewarned that the failure to attend a scheduled court date may result in dismissal of the action or judgment by default (see 22 NYCRR 212.14).This decision constitutes the decision and order of the court.Dated: April 27, 2018
