New York Law Review

Tag: Continuing Nuisance

  • Village of Lindenhurst v. J.D. Posillico, Inc., 21 N.Y.3d 1024 (2013): Statute of Limitations for Defective Construction Claims by Third-Party Beneficiaries

    Village of Lindenhurst v. J.D. Posillico, Inc., 21 N.Y.3d 1024 (2013)

    A cause of action for defective construction, even when brought as a claim of continuing public nuisance by a third-party beneficiary to the construction contract, accrues upon completion of the construction work for statute of limitations purposes.

    Summary

    Ten related actions were brought by municipalities against contractors alleging faulty workmanship in sewer construction performed decades earlier, causing damage to roadways. The municipalities claimed the faulty work constituted a continuing public nuisance. The New York Court of Appeals affirmed the dismissal of the actions as time-barred, holding that the claims, even if characterized as continuing public nuisance, arose from defective construction and accrued upon completion of the work. The court applied the rule from *City School Dist. of City of Newburgh v Stubbins & Assoc.*, extending it to third-party beneficiaries who are not strangers to the contract, and also rejected the argument that the ongoing damage constituted a continuing tort.

    Facts

    In the 1970s and 1980s, Nassau and Suffolk Counties contracted with various construction companies (the defendants) to build a sewer system. The contracts included “protection clauses” requiring the contractors to restore roadways to their “usual condition” post-construction, as per County Law § 263. After the sewer construction was finished, the areas surrounding the sewer lines settled, leading to damage to adjacent roadways, sidewalks, and curbs within the plaintiff municipalities.

    Procedural History

    In July 2009, ten municipalities filed separate actions against the contractors, alleging a continuing public nuisance due to faulty workmanship. The Supreme Court dismissed each complaint, and the Appellate Division affirmed, holding the actions were time-barred under the six-year statute of limitations for breach of contract (as the claims were viewed as third-party beneficiary claims). The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s decisions.

    Issue(s)

    1. Whether a claim by a third-party beneficiary against a contractor for faulty workmanship in construction accrues, for statute of limitations purposes, upon completion of the construction, even when framed as a continuing public nuisance?

    2. Whether the continued presence of roadway defects resulting from the contractor’s alleged negligence constitutes a continuing tort that gives rise to successive causes of action?

    Holding

    1. Yes, because the essence of the claim arises out of defective construction, and under City School Dist. of City of Newburgh v Stubbins & Assoc.*, such claims accrue upon completion of performance, regardless of how the claim is characterized.

    2. No, because the tortious conduct consisted of discrete acts (negligent excavation and backfilling) that ceased upon completion of the sewer construction, and there was no unlawful encroachment or continuous interference with property easements.

    Court’s Reasoning

    The Court of Appeals relied on the precedent set in *City School Dist. of City of Newburgh v Stubbins & Assoc.*, 85 N.Y.2d 535 (1995), which established that in cases against contractors, the statute of limitations begins to run upon completion of the contractual work. The court stated, “In cases against architects or contractors, the accrual date for Statute of Limitations purposes is completion of performance.” The court reasoned that the municipalities’ claims, though framed as continuing public nuisances, were fundamentally based on the contractors’ alleged breach of duty under the construction contracts’ protection clauses. The court emphasized the language in the complaints where the municipalities specifically alleged that the defendants “committed faulty workmanship under said contracts.” The Court extended the *Newburgh* rule to third-party beneficiaries, noting that the counties contracted with the defendants to install the sewer system for the benefit of the municipalities.

    The Court rejected the municipalities’ attempts to distinguish *Newburgh*, stating that the rule is not limited to owners of real property and that the counties’ intention to retain ownership of the sewer lines did not diminish the municipalities’ status as intended beneficiaries. The Court also dismissed the argument that the municipalities’ lack of involvement in the construction process was a distinguishing factor, noting that they at least consented to the project and allowed the contractors to work on their property. The court determined there was not such a “lack of privity” that plaintiffs’ claims should “not fall under the general rule of accrual” articulated in *Newburgh*.

    The Court also addressed the municipalities’ argument that the continuing presence of roadway defects constituted a continuing public nuisance, giving rise to successive causes of action. The Court disagreed, stating that the contractors’ tortious conduct consisted of discrete acts of negligence that ceased upon completion of the sewer construction. “Although plaintiffs allege that the injuries to their property are ongoing, defendants’ tortious conduct consisted of discrete acts (i.e., negligent excavation and backfilling) that ceased upon completion of the sewer construction over 20 years ago.” The court distinguished this situation from cases involving an unlawful encroachment or continuous interference with property easements. Because the municipalities commenced the actions more than three years after the contractors completed the construction work, these claims were also time-barred.

  • Bloomingdales, Inc. v. New York City Transit Authority, 13 N.Y.3d 65 (2009): Statute of Limitations for Continuing Trespass and Nuisance Claims

    Bloomingdales, Inc. v. New York City Transit Authority, 13 N.Y.3d 65 (2009)

    When a trespass or nuisance is continuous, resulting in successive causes of action, the statute of limitations does not begin to run from the initial act but accrues as long as the trespass or nuisance persists, until it ripens into a prescriptive right.

    Summary

    Bloomingdales sued the New York City Transit Authority (NYCTA) for trespass and nuisance after a contractor, Janus Industries, cut Bloomingdales’ drainpipe during excavation and installed a conduit in its place, causing flooding. The NYCTA argued the suit was time-barred under Public Authorities Law § 1212 and General Municipal Law § 50-i, as it was filed more than one year and 90 days after the drainpipe was severed. The Court of Appeals held that the placement of the conduit constituted a continuing trespass and nuisance, meaning the statute of limitations had not yet run, as the damages stemmed from the ongoing encroachment, not solely from the initial severance of the pipe.

    Facts

    In September 1999, Janus Industries, working on a NYCTA project, cut Bloomingdales’ drainpipe, mistakenly believing it to be a “dead” water main. Janus installed a concrete-encased conduit in its place. Bloomingdales experienced flooding and, in February 2002, discovered the cut drainpipe and the conduit. Bloomingdales then installed a new drainpipe above the conduit at a cost exceeding $165,000.

    Procedural History

    Bloomingdales sued the NYCTA in January 2003, alleging negligence, trespass, and nuisance. The Supreme Court granted summary judgment to the NYCTA and third-party defendants, dismissing the complaint based on the statute of limitations. The Appellate Division reversed, reinstating the trespass and nuisance claims, holding it was a continuing tort. The NYCTA appealed, and the Appellate Division certified the question of whether its order was properly made to the Court of Appeals.

    Issue(s)

    Whether the placement of a concrete conduit in place of a severed drainpipe constitutes a continuing trespass and nuisance, such that the statute of limitations for those claims begins to run from the cessation of the encroachment, rather than the initial act of severing the pipe?

    Holding

    Yes, because the placement of the concrete conduit interfering with Bloomingdales’ access to its drainpipe constitutes a continuous trespass and nuisance, giving rise to successive causes of action for which the statute of limitations had not yet run.

    Court’s Reasoning

    The Court of Appeals reasoned that while Public Authorities Law § 1212 (2) and General Municipal Law § 50-i require actions for property damage to be commenced within one year and 90 days after the event, this period does not apply to continuous trespasses or nuisances. Citing 509 Sixth Ave. Corp. v New York City Tr. Auth., the Court emphasized that a trespass that unlawfully encroaches on a plaintiff’s property is considered a continuous trespass, giving rise to successive causes of action. The statute of limitations only bars suits after the time required to create an easement by prescription or change of title. Here, the conduit’s presence interfered with Bloomingdales’ access to its drainpipe and the city sewer, forcing the installation of a new pipe. The Court stated that “[t]hus, for purposes of the statute of limitations, suits will only be time-barred by the expiration of such time as would create an easement by prescription or change of title by operation of law.” The Court found the actual damages arose from the need to install a new drainpipe in a different location due to the conduit. The Court considered the nuisance claim another way of characterizing the trespass, subject to the same statute of limitations analysis. Thus, the Appellate Division’s order was affirmed.

  • Jensen v. General Electric Co., 82 N.Y.2d 77 (1993): Statute of Limitations for Toxic Tort Property Damage Claims

    82 N.Y.2d 77 (1993)

    CPLR 214-c(2), the statute of limitations for property damage caused by exposure to substances, applies to actions for damages resulting from continuing trespass and nuisance, limiting the time to bring suit to three years from the date of discovery of the injury.

    Summary

    Plaintiffs sued General Electric (GE) and Albert J. Smaldone, Sr. and Sons, Inc., alleging property damage from hazardous waste contamination. GE had disposed of waste on a site later purchased by Smaldone. Plaintiffs discovered the contamination in 1986 but did not sue until 1990. The lower courts disagreed about whether the claim was time-barred under CPLR 214-c(2). The Court of Appeals held that the statute applied to continuing trespass and nuisance claims, barring the recovery of damages because the suit was filed more than three years after discovery, but did not affect the availability of equitable injunctive relief.

    Facts

    From 1958 to 1969, General Electric disposed of hazardous waste at the Moreau Site. In 1970, Albert J. Smaldone, Sr. and Sons, Inc. purchased the site. In 1984, GE contacted plaintiff Perkett for permission to place monitoring wells on her property. GE informed Perkett in December 1984 that her property was contaminated with trichloroethylene (TCE). In 1986, Perkett and Jensen took title to the property as joint tenants. GE sent Jensen technical data and notified him that wells on his property showed contamination.

    Procedural History

    Plaintiffs commenced an action in June 1990, seeking damages and an injunction. The defendants moved to dismiss based on CPLR 214-c(2). The Supreme Court granted the motion. The Appellate Division modified the order and reinstated the causes of action for damages and injunctive relief based on continuing trespass and nuisance. The Court of Appeals then modified the Appellate Division’s order, dismissing the damages claims.

    Issue(s)

    Whether CPLR 214-c(2) applies to actions for damages caused by continuing trespass and nuisance, thereby limiting the time to bring such actions to three years from the date the injury was discovered.

    Holding

    Yes, because CPLR 214-c(2) applies to actions for “injury to property caused by the latent effects of exposure to any substance,” encompassing continuing trespass and nuisance actions seeking damages. It does not affect the availability of equitable injunctive relief.

    Court’s Reasoning

    The court reasoned that CPLR 214-c(2) is a comprehensive statute designed to provide relief to injured parties who were previously barred from suing due to the old accrual rule, which started the statute of limitations running from the date of exposure. The court found no evidence that the legislature intended to exempt continuing nuisance and continuing trespass actions from the statute’s scope. The statute’s language is broad and inclusive, covering “injury to property caused by the latent effects of exposure to any substance.” The Court emphasized that it would be ironic for the courts to reformulate the enacted version of this statute. The purpose of CPLR 214-c (2) was to replace the archaic rule, which commences the three-year period for suit on the date that an exposure occurs. The court acknowledged that pre-CPLR 214-c(2), a common-law exception existed for continuing wrongs, but found that the new statute displaced the rationale for this exception, providing a balanced approach that protects both plaintiffs and defendants. The discovery rule allows plaintiffs who act timely to sue for all damages incurred since the wrong began, while defendants are not left potentially liable in perpetuity. As the statute applies only to actions “to recover damages,” it does not affect the availability of injunctive equitable relief. Dissenting opinions argued that the statute was only intended to address the accrual rule and not to abrogate common law rights related to continuing wrongs and that the majority’s approach compels plaintiffs to speculate about future economic loss.