CRISTINEL PINTILIE ELLEN CORWIN LORI WEINSTEIN AS TRUSTEE OF THE MERCHANTS PATH TRUST VINCENT COVELLO KEVIN COYLE AS TRUSTEE OF THE KEVIN COYLE REVOCABLE TRUST AND TRACY CAREY AS TRUSTEE OF THE TRACY CAREY REVOCABLE TRUST v. AND MAIDSTONE GUN CLUB INC (2026)

Upon the E-file document list numbered 528 to 531, 534 to 536, 548 to 553, 555, 563 to 565, 568 to 569, and 573, read and considered on the motion by plaintiffs Kevin B. Coyle as Trustee of The Kevin B. Coyle Revocable Trust and Tracy E. Carey as Trustee of The Tracy E. Carey Revocable Trust, for an order pursuant to CPLR 3103 (a), 3120, 3124, and 6301, the cross-motion of defendant Maidstone Gun Club for a protective order pursuant to CPLR 3103, and on the motion of defendant Maidstone Gun Club for an order pursuant to CPLR 3211 (a)(3), (5), and (7), dismissing all claims asserted against it by plaintiffs Kevin B. Coyle as Trustee of The Kevin B. Coyle Revocable Trust and Tracy E. Carey as Trustee of The Tracy E. Carey Revocable Trust, or in the alternative, striking allegations in the complaint pursuant to CPLR 3024 (b); it is

ORDERED that the respective motions are consolidated for purposes of a determination herein; and it is further

ORDERED that the motion of defendant Maidstone Gun Club for an order pursuant to CPLR 3211 (a)(3), (5), and (7), dismissing all claims asserted against it by plaintiffs Kevin B. Coyle as Trustee of The Kevin B. Coyle Revocable Trust and Tracy E. Carey as Trustee of The Tracy E. Carey Revocable Trust, is granted, for the reasons set forth herein; and it is further

ORDERED that the motion by plaintiffs Kevin B. Coyle as Trustee of The Kevin B. Coyle Revocable Trust and Tracy E. Carey as Trustee of The Tracy E. Carey Revocable Trust, for an order pursuant to CPLR 3103 (a), 3120, 3124, and 6301, is denied, as academic; and it is further

ORDERED that the cross-motion of defendant Maidstone Gun Club for a protective order pursuant to CPLR 3103, is denied, as academic.

This action alleging claims against defendant Maidstone Gun Club ("the Gun Club" or "defendant") sounding in private nuisance, public nuisance, trespass, and for a permanent injunction, was commenced by the filing of a summons and complaint on November 29, 2022.¹ The complaint alleges that stray bullets coming from the Gun Club located at Daniels Hole Road, East Hampton, New York, are striking homes located in close proximity to the residence of plaintiffs Kevin B. Coyle as Trustee of The Kevin B. Coyle Revocable Trust and Tracy E. Carey as Trustee of The Tracy E. Carey Revocable Trust ("within plaintiffs" or "remaining plaintiffs"). As to the within plaintiffs, the complaint alleges incidents on June 25, 2004 and on an unspecified date in 2015, each time involving a stray bullet or bullets that struck their residence at 131 Merchants Path in East Hampton. Maidstone filed its answer on March 24, 2023 interposing nine affirmative defenses.²

"A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired" (Sullivan v Keyspan Corp., 155 AD3d 804, 805, 64 NYS3d 82, 84 [2d Dept 2020][internal quotations and citations omitted]). Once the defendant has made this prima facie showing, the "burden then shifts to the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations, or raising an issue of fact as to whether such exception applies" (Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403,405, 840 NYS2d 417, 419 [2d Dept 2007]) or that the plaintiff actually commenced the action within the applicable limitations period (Sullivan v Keyspan Corp., 155 AD3d at 805, 64 NYS3d at 84).

An action to recover damages for personal injury or injury to property must be commenced within three years from the date of the injury (CPLR 214 [4], [5]; Benjamin v Assad,186 AD3d 549, 129 NYS3d 126 [2d Dept 2020][trespass, nuisance, and negligence claims are governed by the three-year statute of limitations found in CPLR 214]; City of New York v College Point Sports Assn., Inc.,61 AD3d 33, 876 NYS2d 409 [2d Dept 2009][3 year statute of limitations applies to nuisance claims]; Lucchesi v Perfetto, 72 AD3d 909, 912, 899 NYS2d 341, 343 [2d Dept 2010][dismissal of claims of nuisance and trespass alleged to have occurred more than three years before action commenced] ). An action for nuisance and trespass accrues when the damage is apparent (Klostermeier v City of Port Jervis,200 AD3d 866, 160 NYS3d 291 [2d Dept 2021]). A negligence action accrues when the injury occurs (Lucchesi v Perfetto, 72 AD3d 909, 912, 899 NYS2d 341, 343 [2d Dept 2010]; Sultan v King, 73 Misc 3d 338, 152 NYS3d 777 [County Ct Suffolk County 2021]).

The complaint alleges that the within plaintiffs' nuisance, trespass, and negligence claims accrued, at the latest, in 2015. This action was commenced in 2022, thus defendant has met its prima facie burden of establishing that the claims are not timely (CPLR 214 [4]). Indeed, a private nuisance claim requires an allegation of an "interference with the use or enjoyment of land" (Copart Indus., Inc. v Consolidated Edison Co. of NY,41 NY2d 564, 568, 394 NYS2d 169, 172 [1977]) and trespass requires an intentional entry onto the land of another without justification or permission (Reyes v Carroll, 137 AD3d 886, 888, 27 NYS3d 80 [2d Dept 2016]; Zimmerman v Carmack,292 AD2d 601, 602, 739 NYS2d 430, 432 [2d Dept 2002["the essence of trespass is the invasion of a person's interest in the exclusive possession of land"). Negligence claims require an allegation of a breach of a duty of care (Klein v Catholic Health Sys. of Long Is., Inc.,231 AD3d 797, 799, 220 NYS3d 757 [2d Dept 2024]; Cadet v James B. Nutter & Co., 133 AD3d 561, 562, 19 NYS3d 307 [2d Dept 2015]). Here, any alleged interference, unlawful entry or breach, occurred as to the within plaintiffs, at the latest, in 2015, more than three years prior to the commencement of this action. Defendant also established, prima facie, that the public nuisance claim is time-barred, as a public nuisance claim requires an allegation of a special injury, which here is alleged to have occurred to the within plaintiffs, at the latest, in 2015 (see Gellman v Sewane Golf & Country Club, Inc.,24 AD3d 415, 805 NYS2d 411 [2d Dept 2005][public nuisance claim dismissed as special injury was not alleged by plaintiffs]; see also 532 Madison Ave. Gourmet Foods, Inc. v Finlandia Ctr., Inc.,96 NY2d 280, fn.11, 727 NYS2d 49 [2001][public nuisance only actionable by private person who suffers special injury]). The burden now shifts to plaintiffs to establish that the causes of action fall within an exception to the statute of limitations, or to raise a question of fact as to whether such exception applies.

The Court rejects the argument by plaintiffs that the "continuing wrong" doctrine  ³ applies to extend the statute of limitations on plaintiffs' claims sounding in nuisance and trespass  ⁴ nor is there any question of fact raised by plaintiffs as to the applicability of this doctrine to the allegations in the complaint. The 2022 and 2020 stray bullet incidents alleged in the complaint do not involve the within plaintiffs' residence at all. Rather, and it is conceded by plaintiffs, that the August 5, 2022 and 2020 stray bullet incidents involved neighboring properties. These alleged stray bullet incidents not involving plaintiffs' property do not give rise to successive causes of action under the continuing wrong doctrine. The stray bullet incidents alleged in the complaint, while grouped together in the complaint, are personal to the respective owners and properties affected. The complaint does not allege any nuisance, trespass or negligence that could be considered to be in common with or shared by all of the plaintiffs to this action. For example, the complaint does not allege noise, pollution, contamination, flooding, unlawful encroachments, or any other intrusions or wrongful conduct by defendant that could be said to have impacted all of the plaintiffs equally and at the same time. There are no such allegations alleged in the nuisance and trespass claims in the complaint and in this regard, the within plaintiffs are not united in interest with the settling plaintiffs. The alleged stray bullet incidents are single, discrete wrongs against the particular property or property owners affected and, in particular, the 2022 and 2020 alleged incidents cannot be viewed as wrongs committed against all of the plaintiffs. As such, plaintiffs have not met their burden in opposition and their nuisance, trespass, and negligence claims against defendant are dismissed as time-barred.

The statute of limitations for a permanent injunction is six years (CPLR 213[1]). The claims asserted in the complaint regarding the plaintiffs' and their residence are from 2015, which required plaintiffs to assert this claim at the latest, in 2021. This action was commenced in 2022. Notwithstanding the untimeliness of this claim, there is no predicate act alleged in the complaint that could give rise to a permanent injunction claim, as all of plaintiffs' claims are dismissed as time-barred (see Klein v Catholic Health Sys. of Long Is., Inc.,231 AD3d 797, 799, 220 NYS3d 757 [2d Dept 2024] ["injunctive relief is simply not available" where a plaintiff has no substantive claims][internal quotations and citations omitted]. Because plaintiffs' claims against defendant are barred by the statute of limitations, the Court need not consider the other basis for dismissal asserted by defendant or the other arguments raised by plaintiffs in connection therewith.

Accordingly, the motion to dismiss by defendant, as against the remaining plaintiffs, is granted and all other motions of the respective parties hereto are denied as academic.

The foregoing constitutes the decision and Order of the Court.

Dated: May 28, 2026

HON. CHRISTOPHER MODELEWSKI, J.S.C.

FOOTNOTES

1.   The other plaintiffs in this action entered into a settlement agreement with defendant and are referred to herein as "the settling plaintiffs."

2.   Maidstone asserted a counterclaim, which was dismissed by prior order of the Court.

3.   Where "a continuing wrong is alleged, the action is not time-barred because the cause of action continues to accrue anew, each day the wrong is perpetrated" (Town of Huntington v County of Suffolk, 79AD3d 207, 215, 910 NYS2d 454 [2d Dept 2020]). There is no continuing wrong here, as the last alleged incident related to the within plaintiffs was sometime in 2015.

4.   There is no argument that the continuing wrong doctrine applies to plaintiffs' negligence claims but rather to their nuisance and trespass claims (see e.g. Capruso v Village of Kings Point,23 NY3d 631, 992 NYS2d 469 [2014][continuing wrong doctrine applies to nuisance and trespass claims involving unlawful encroachment]; Jefferson v New Life Tabernacle, Inc.,225 AD3d 675, 207 NYS3d 122 [2d Dept 2024][negligence claim dismissed as time-barred but plaintiff granted leave to amend complaint as continuous actions could give rise to successive causes of action for nuisance and trespass]; Listwon v 500 Metro. Owner, LLC,188 AD3d 1028, 136 NYS3d 106 [2d Dept 2020][continuing wrong doctrine applied to nuisance and trespass claims]; Garron v Bristol House, Inc., 162 AD3d 857, 858-59, 79 NYS3d 265 [2d Dept 2018 [continuing wrong doctrine applied to intentional wrongful acts]; Lucchesi v Perfetto, 72 AD3d 909, 912, 899 NYS2d 341, 343 [2d Dept 2010]; Gellman v Sewane Golf & Country Club, Inc.,24 AD3d 415, 805 NYS2d 411 [2d Dept 2005][private nuisance and trespass claims established where driving range operated by defendant in a manner that allowed golf balls to continuously escape the range]; Sultan v King, 73 Misc 3d 338, 152 NYS3d 777 [County Ct Suffolk County 2021][continuing wrong doctrine applied to continuous nuisance and trespass arising from unlawful encroachment]; see also Nussbaum v Lacopo,27 NY2d 311, 317 NYS2d 347 [1970][negligence and nuisance claims are treated separately with nuisance claims requiring a continuous invasion of rights rather than occasional impairments]; Hoffman v Foxfire North, Inc., 1 AD3d 1005, 767 NYS2d 352 [2d Dept 2003]). Plaintiffs' negligence claims are time-barred regardless of the continuing wrong doctrine (see CPLR 214 [5]; Jefferson v New Life Tabernacle, Inc.,225 AD3d 675, 207 NYS3d 122 [2d Dept 2024]; see generally Kinder v Braunius,63 AD3d 885, 887, 882 NYS2d 188, 190 [2d Dept 2009]).

Christopher Modelewski, J.