LICHTER v. 349 AMSTERDAM AVENUE CORPORATION (2004)

Order, Supreme Court, New York County (Joan A. Madden, J.), entered November 18, 2003, which granted plaintiff's motion for summary judgment, denied defendant's cross motion for summary judgment and for dismissal of the complaint on unspecified grounds, and directed an inquest as to damages, unanimously affirmed, with costs.

There are no factual issues with respect to defendant's responsibility to maintain its chimney.   Any responsibility that plaintiff may have had at one time, pursuant to § 27-860 of the New York City Administrative Code, as the neighboring owner of a taller, later-built building, was extinguished in or about 1947, when defendant discontinued the use of the chimney, and was not reactivated when such use was resumed almost 40 years later.   Defendant failed to establish that this action was time-barred (Savarese v. Shatz, 273 A.D.2d 219, 708 N.Y.S.2d 642).   In any event, the cause of action for nuisance is timely under the doctrine of continuing tort (CPLR 214[4];  Dabb v. NYNEX Corp., 262 A.D.2d 1079, 691 N.Y.S.2d 840).

We have considered defendant's remaining contentions and find them unavailing.