New York Law Review

Tag: Continuing Trespass

  • 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.

  • 509 Sixth Avenue Corp. v. New York City Transit Authority, 15 N.Y.2d 48 (1964): Statute of Limitations for Underground Trespass

    509 Sixth Avenue Corp. v. New York City Transit Authority, 15 N.Y.2d 48 (1964)

    An unlawful encroachment, even if underground, constitutes a continuing trespass that gives rise to successive causes of action until title or an easement is acquired by operation of law.

    Summary

    509 Sixth Avenue Corp. sued the City of New York and the New York City Transit Authority for trespass after discovering an underground subway encroachment while excavating its property. The defendants moved to dismiss based on the three-year statute of limitations for injury to property. The Court of Appeals reversed the lower courts, holding that the encroachment was a continuing trespass, not a permanent one. Therefore, each day the encroachment continued created a new cause of action, and the statute of limitations had not run on the claim. The court distinguished a permanent structure from a permanent trespass, emphasizing that New York law treats unlawful encroachments as continuous trespasses. The case was remanded for further proceedings.

    Facts

    Plaintiff owned premises at 509/511 Avenue of the Americas and 103/105 West 13th Street in Manhattan. While excavating for a 16-story apartment building in March 1960, the plaintiff discovered an underground encroachment by the Sixth Avenue Subway, completed in 1939, at a depth of approximately ten feet. The plaintiff claimed damages because it had to redesign its substructure and foundations, lost basement space, and incurred increased construction costs due to the encroachment.

    Procedural History

    The plaintiff sued the City of New York and the New York City Transit Authority. The defendants moved to dismiss the complaint, arguing that the three-year statute of limitations for injuries to real property barred the action. Special Term granted the defendants’ motion. The Appellate Division affirmed. The New York Court of Appeals granted permission to appeal.

    Issue(s)

    Whether the three-year statute of limitations for injury to property applies to an underground trespass, such that the cause of action accrued when the trespass was initially committed, or whether it constitutes a continuing trespass giving rise to successive causes of action.

    Holding

    Yes, the encroachment constitutes a continuing trespass because New York law characterizes unlawful encroachments as continuous trespasses giving rise to successive causes of action.

    Court’s Reasoning

    The court reasoned that under New York law, an unlawful encroachment is considered a continuing trespass, giving rise to successive causes of action. The court distinguished its prior holding in Schwartz v. Heyden Newport Chem. Corp., explaining that while a cause of action typically accrues upon the violation of a legal right, regardless of actual pecuniary damage, this principle does not apply to continuing trespasses. The court rejected the argument that the lack of knowledge of the trespass prevented the cause of action from accruing in 1939, stating, “Except in cases of fraud where the statute expressly provides otherwise, the statutory period of limitations begins to run from the time when liability for wrong has arisen even though the injured party may be ignorant of the existence of the wrong or injury.” However, even if the trespass were considered constructive fraud, the action would still be timely under the ten-year statute of limitations for fraud actions. The court emphasized that New York law differed from the California rule, which treats permanent structures as creating permanent trespasses, giving rise to a single cause of action. The Court stated, “From the above, the New York rule is readily perceived: an encroaching structure is a continuing trespass which gives rise to successive causes of action, except where barred by acquisition of title or an easement by operation of law.” Since the case was before the court on a motion to dismiss, the possibility of acquiring title by adverse possession was not considered. The court specifically noted that it was not addressing other grounds urged for dismissal, including whether the complaint stated a cause of action against the Transit Authority.