ROCHESTER GAS ELECTRIC CORPORATION v. CITY OF ROCHESTER (1999)

Plaintiff commenced this action to recover damages for injury to its property allegedly resulting from a break in defendant's water main in 1994.   Supreme Court erred in denying defendant's motion to dismiss the complaint on the ground that it is barred by the Statute of Limitations (see, CPLR 3211 [a] [5] ).   The action was commenced in 1997, more than one year and 90 days “after the happening of the event upon which the claim is based”, i.e., the water main break in 1994 (General Municipal Law § 50-i[1][c];  see, Nebbia v. County of Monroe, 92 A.D.2d 724, 725, 461 N.Y.S.2d 127, lv. denied 59 N.Y.2d 603, 463 N.Y.S.2d 1028, 450 N.E.2d 252).   We reject plaintiff's contention that the time to commence the action should be computed from the date of discovery of the injury pursuant to CPLR 214-c(3).  “While CPLR 214-c does nominally cover situations where a plaintiff is injured due to ‘contact’ with a ‘substance,’ it is plain from reading the statute as a whole that the types of substances intended to be covered are toxic substances” (Blanco v. American Tel. & Tel. Co., 90 N.Y.2d 757, 767, 666 N.Y.S.2d 536, 689 N.E.2d 506, rearg. denied 91 N.Y.2d 922, 669 N.Y.S.2d 264, 692 N.E.2d 133).   Water is not a toxic substance, and the discovery rule of CPLR 214-c is therefore inapplicable to this action (see, Blanco v American Tel. & Tel. Co., supra, at 767, 666 N.Y.S.2d 536, 689 N.E.2d 506;  Martzloff v. City of New York, 238 A.D.2d 115, 116-117, 655 N.Y.S.2d 43, lv. dismissed 90 N.Y.2d 935, 664 N.Y.S.2d 273, 686 N.E.2d 1368;  Noce v. Wilmorite, Inc., 166 Misc.2d 103, 106-107, 631 N.Y.S.2d 476).

Order unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: