BOARD OF MANAGERS OF LIDO BEACH TOWERS CONDOMINIUM v. CITY OF LONG BEACH (2024)

DECISION & ORDER

In an action, inter alia, to recover damages for inverse condemnation, the defendant appeals from an order of the Supreme Court, Nassau County (Christopher G. Quinn, J.), entered August 3, 2022.  The order denied the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In the fall of 2018, the plaintiff and the defendant entered into an agreement permitting the defendant a temporary easement over the plaintiff's property for certain public works.  The agreement required the defendant to seek a permanent easement via condemnation.  The defendant began work on January 29, 2019.

In response to the defendant's failure to timely condemn the easement, the plaintiff commenced this action, alleging inverse condemnation and seeking, inter alia, just compensation.  The defendant moved pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred under CPLR 217–a.  In an order entered August 3, 2022, the Supreme Court denied the defendant's motion.  The defendant appeals.

“An inverse condemnation cause of action accrues at the time of the taking and is subject to the three-year statute of limitations set forth in CPLR 214(4)” (Savo v. City of New York, 208 A.D.3d 1377, 1378, 176 N.Y.S.3d 79 [citations omitted];  see Linzenberg v. Town of Ramapo, 1 A.D.3d 321, 322, 766 N.Y.S.2d 217;  Sarnelli v. City of New York, 256 A.D.2d 399, 401, 681 N.Y.S.2d 578).  Contrary to the defendant's contention, the enactment of CPLR 217–a did not alter the statute of limitations for such actions, since “[a] cause of action sounding in inverse condemnation is not founded in tort, and, therefore, compliance with the notice of claim provisions of General Municipal Law § 50–e” and the provisions of General Municipal Law § 50–i is unnecessary (Clempner v. Town of Southold, 154 A.D.2d 421, 425, 546 N.Y.S.2d 101;  see County of Jefferson v. Onondaga Dev. LLC, 151 A.D.3d 1793, 1797, 59 N.Y.S.3d 203).  Here, since the parties agree that the cause of action alleging inverse condemnation accrued on January 29, 2019, and the plaintiff commenced this action on January 10, 2022, within the three-year statute of limitations, the Supreme Court properly denied the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.

We decline the plaintiff's request to impose a sanction against the defendant for prosecuting this allegedly frivolous appeal (see 22 NYCRR 130–1.1).

IANNACCI, J.P., GENOVESI, DOWLING and WAN, JJ., concur.