461 BROADWAY LLC v. VILLAGE OF MONTICELLO

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Supreme Court, Appellate Division, Third Department, New York.

461 BROADWAY, LLC, Appellant, v. VILLAGE OF MONTICELLO, Respondent.

522490

Decided: November 23, 2016

Before:  Peters, P.J., Garry, Devine, Clark and Aarons, JJ. Billig, Loughlin & Baer, LLP, Monticello (Jacob R. Billig of counsel), for appellant. Drake Loeb PLLC, New Windsor (Ralph L. Puglielle Jr. of counsel), for respondent.

MEMORANDUM AND ORDER

Calendar Date:  October 18, 2016

Appeal from an order of the Supreme Court (Schick, J.), entered May 1, 2015 in Sullivan County, which, among other things, granted defendant's motion for summary judgment dismissing the complaint.

In May 2013, a sewer backup occurred at property leased by plaintiff in the Village of Monticello, Sullivan County.  After the property sustained multiple additional backups through January 2014, plaintiff filed a notice of claim on defendant in March 2014.  In July 2014, plaintiff commenced this negligence action to recover damages sustained as a result of the sewage backups, alleging, among other things, that defendant failed to properly construct, inspect, repair and maintain its sewer system.  Defendant moved to dismiss the complaint pursuant to CPLR 3211 and 3212, asserting, among other things, that the action was barred by the applicable statute of limitations.  Supreme Court agreed and dismissed the complaint.  Plaintiff appeals.

To the extent that plaintiff's claim alleges that defendant negligently constructed and installed the water and sewer main—work which was fully complete by December 2009—we agree with Supreme Court that it cannot be maintained.  General Municipal Law § 50–i(1)(c) requires that an action against a municipality for property damage be commenced within one year and 90 days after “the happening of the event upon which the claim is based.”  Although plaintiff alleges ongoing injury to its property as a result of defendant's actions, the alleged tortious conduct in that regard consisted of discrete acts of negligence that ceased upon completion of the water and sewer main construction (see Town of Oyster Bay v. Lizza Indus., Inc., 22 NY3d 1024, 1031–1032 [2013];  New York State Elec. & Gas Corp. v County of Chemung, 137 AD3d 1550, 1554 [2016], lv dismissed _ NY3d _ [Nov. 1, 2016];  Matter of Witt v. Town of Amherst, 17 AD3d 1030, 1031 [2005];  Nebbia v. County of Monroe, 92 A.D.2d 724, 725 [1983], lv denied 59 N.Y.2d 603 [1983] ).  There being “no continuing, offensive act” (New York State Elec. & Gas Corp. v County of Chemung, 137 AD3d at 1554;  compare Bloomingdales, Inc. v. New York City Tr. Auth., 13 NY3d 61, 65–66 [2009] ), plaintiff's claim arising from defendant's allegedly negligent construction and installation is time-barred (see Town of Oyster Bay v. Lizza Indus., Inc., 22 NY3d at 1032;  New York State Elec. & Gas Corp. v County of Chemung, 137 AD3d at 1554;  Harrington v. County of Suffolk, 102 AD3d 923, 924 [2013];  Liston v. Town of Newburgh, 90 AD3d 861, 862 [2011] ).

We reach a different conclusion with respect to plaintiff's alternative claim that defendant failed to properly maintain and/or repair its sewer and water mains.  It is settled that a municipality is under a continuing duty to maintain and repair its sewage and water systems (see De Witt Props. v. City of New York, 44 N.Y.2d 417, 423 [1978];  New York State Elec. & Gas Corp. v County of Chemung, 137 AD3d at 1554;  Pet Prods. v. City of Yonkers, 290 A.D.2d 546, 547 [2002] ), and this duty is independent of the duty not to create a dangerous or defective condition (see New York State Elec. & Gas Corp. v County of Chemung, 137 AD3d at 1554–1555;  cf.  Kiernan v. Thompson, 73 N.Y.2d 840, 842 [1988];  Sniper v. City of Syracuse, 139 A.D.2d 93, 96 [1988] ).  “[T]he breach of this ongoing duty is the ‘event’ that forms the basis for the claim” for purposes of General Municipal Law § 50–i (New York State Elec. & Gas Corp. v County of Chemung, 137 AD3d at 1554;  see Kiernan v. Thompson, 73 N.Y.2d at 841).  Thus, defendant's negligence, if any, in failing to maintain or repair its water and/or sewage system constitutes a continuing wrong that gives rise to a new cause of action for each injury that occurred (see Kehagias v. Waldo Ave. Bldg., 132 AD3d 615, 615–616 [2015];  Congregation B'nai Jehuda v. Hiyee Realty Corp., 35 AD3d 311, 313 [2006];  Kiernan v. Thompson, 134 A.D.2d 27, 29–30 [1987], affd 73 N.Y.2d 840 [1988];  Sniper v. Syracuse, 139 A.D.2d at 95–96).  Plaintiff's recoverable damages, however, are limited “ ‘to those caused by the alleged unlawful acts sustained within 90 days preceding the date of filing of the notice of claim’ ” (Carhart v. Village of Hamilton, 190 A.D.2d 973, 975 [1993], quoting Goldstein v. County of Monroe, 77 A.D.2d 232, 234 [1980];  see Sutton Investing Corp. v. City of Syracuse, 48 AD3d 1141, 1143 [2008], lv dismissed 10 NY3d 858 [2008];  Doran v. Town of Cheektowaga, 54 A.D.2d 178, 180–182 [1976];  cf.  Meruk v. City of New York, 223 N.Y. 271, 276 [1918] ).

While defendant offers two alternative grounds for affirmance of Supreme Court's dismissal of plaintiff's negligent maintenance claim, neither has merit.  With regard to the first, “a municipality is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature” (Brandenburg v County of Rockland Sewer Dist. # 1, State of N.Y., 127 AD3d 681, 682 [2015] [internal quotation marks and citation omitted];  see De Witt Props. v. City of New York, 44 N.Y.2d at 423–424;  Watt v. County of Albany, 140 AD3d 1260, 1261 [2016];  Biernacki v. Village of Ravena, 245 A.D.2d 656, 657 [1997] ).  Second, defendant argues that plaintiff's negligent maintenance claim must be dismissed because it had not received prior written notice of the alleged defect.  It is axiomatic that prior written notice provisions are in derogation of the common law and must be strictly construed (see Gorman v. Town of Huntington, 12 NY3d 275, 279 [2009];  Poirier v. City of Schenectady, 85 N.Y.2d 310, 313 [1995] ).  By its express terms, the prior written notice requirement of Code of the Village of Monticello § 220–49 is limited to defects or dangerous conditions with regard to highways, bridges and culverts, making no reference to subsurface structures.  Accordingly, it is inapplicable to claims regarding defendant's sewage system (see Windsor Ct. Assoc., LP v. Village of New Paltz, 27 AD3d 814, 815 [2006];  McKinnis v. City of Schenectady, 234 A.D.2d 760, 761 [1996];  Barsh v. Town of Union, 126 A.D.2d 311, 313 [1987];  compare Blanc v. City of Kingston, 68 AD3d 1525, 1526 [2009] ).

Garry, Devine, Clark and Aarons, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as dismissed that portion of plaintiff's cause of action for negligent repair and maintenance that falls within the statute of limitations;  motion denied to that extent;  and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court