KORNBLUH v. NYSARC INC (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for private nuisance, the plaintiff appeals from an order of the Supreme Court, Rockland County (Christie L. D'Alessio, J.), dated September 3, 2024.  The order, insofar as appealed from, granted that branch of the motion of the defendants Homeland Towers, LLC, and NYSARC, Inc., which was pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time-barred.

ORDERED that the order is reversed, insofar as appealed from, on the law, with costs, that branch of the motion of the defendants Homeland Towers, LLC, and NYSARC, Inc., which was pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time-barred is denied, so much of the order as denied, as academic, the remaining branches of the motion is vacated, and the matter is remitted to the Supreme Court, Rockland County, for a determination on the merits of the remaining branches of the motion, and for further proceedings, if necessary, thereafter.

In August 2023, the plaintiff commenced this action against NYSARC, Inc., and Homeland Towers, LLC (hereinafter Homeland and, together with NYSARC, Inc., the defendants), among others.  The amended complaint sought declaratory and injunctive relief enjoining the defendants' use of a cell tower site located near the plaintiff's home and to recover damages for private nuisance, negligence, and negligent infliction of emotional distress.

The defendants moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time-barred.  In an order dated September 3, 2024, the Supreme Court granted that branch of the motion and denied, as academic, the remaining branches of the motion.  The plaintiff appeals from so much of the order as granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted them.

“A defendant who seeks dismissal of a complaint 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 commence an action has expired.  The burden then shifts to the plaintiff to present evidence raising a triable issue of fact as to whether the action falls within an exception to the statute of limitations or whether the statute of limitations has been tolled” (BCVAWCA–DOE v. Cerone, 243 A.D.3d 866, 867, 247 N.Y.S.3d 103 [internal quotation marks omitted] ).

Here, the defendants failed to establish, prima facie, that the plaintiff's claims were time-barred.  Contrary to the defendants' contention, this action is not a challenge to a town's determination to issue the defendants a building permit to construct a facility, which would have been subject to a four-month statute of limitations (see CPLR 217[1] ).  Rather, this is an action to enjoin and recover damages for private nuisance and for related relief, stemming from the defendants' construction of a cell tower facility, which the plaintiff alleges has diminished the fair market value of his property, interfered with his use and enjoyment of his property, and hindered his ability to safely travel to and from his home.  Thus, the action against the defendants sounding in private nuisance, negligence, and negligent infliction of emotional distress arises from the defendants' construction and use of the cell tower facility, not from a determination of a planning or zoning board (see Little Joseph Realty v. Town of Babylon, 41 N.Y.2d 738, 744, 395 N.Y.S.2d 428, 363 N.E.2d 1163;  Sweet v. Campbell, 282 N.Y. 146, 149, 25 N.E.2d 963), and the action was commenced within any applicable statute of limitations period (see CPLR 214[4], [5];  Stein v. Garfield Regency Condominium, 65 A.D.3d 1126, 1127, 886 N.Y.S.2d 54).

Accordingly, the Supreme Court should have denied that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against them as time-barred.

Homeland's remaining contentions are either improperly raised for the first time on appeal, improperly based on matter dehors the record, or without merit.

Since the Supreme Court denied, as academic, the remaining branches of the motion which were to dismiss the amended complaint insofar as asserted against the defendants on alternative grounds, we vacate so much of the order as denied, as academic, those remaining branches of the motion and remit the matter to the Supreme Court, Rockland County, for a determination on the merits of those remaining branches of the motion, and for further proceedings, if necessary, thereafter.

DUFFY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.