TJO INC v. KEYSPAN CORP

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

TJO, INC., Appellant, v. KEYSPAN CORP., et al., Respondents, et al., Defendants.

(Index No. 2084/10)

Decided: October 16, 2019

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, BETSY BARROS, LINDA CHRISTOPHER, JJ. McCallion & Associates LLP, New York, N.Y. (Kenneth F. McCallion and Reilly, Like & Tenety [Irving Like], of counsel), for appellant. John F. Hastings, Hicksville, N.Y. (McLane Middleton, Professional Association [Bruce W. Felmly and Rachel A. Hampe], of counsel), for respondents.

DECISION & ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Keyspan Corp., Keyspan Energy Corp., and Keyspan Gas East Corp. which was for summary judgment dismissing, as time-barred, those causes of action which sought to recover damages for public and private nuisance allegedly resulting from remediation work conducted by those defendants insofar as asserted against them, and substituting therefor a provision denying that branch of the motion;  as so modified, the order is affirmed, without costs or disbursements.

The plaintiff is a corporation that owns several rental properties, including a multifamily dwelling, located in Bay Shore (hereinafter the subject property).  It commenced this action against the defendants Keyspan Corp., Keyspan Energy Corp., and Keyspan Gas East Corp. (hereinafter collectively the defendants) and others on January 13, 2010, seeking, inter alia, to recover damages for injury to the subject property resulting from alleged contamination emanating over the course of decades from the former site of a manufactured gas plant, and from subsequent remediation work performed by the defendants.  The defendants moved for summary judgment dismissing the first through seventh causes of action insofar as asserted against them as time-barred or, in the alternative, for summary judgment dismissing those causes of action insofar as asserted against them on the merits.  By order dated January 7, 2016, the Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing those causes of action as insofar as asserted against them as time-barred.  The court did not address that branch of the defendants' motion which was for summary judgment dismissing those causes of action insofar as asserted against them on the merits, nor have the defendants pursued that relief on this appeal.  The plaintiff appeals.  We modify.

We agree with the Supreme Court's determination granting that branch of the defendants' motion which was for summary judgment dismissing the causes of action seeking damages for exposure-related injuries insofar as asserted against them as time-barred.  “Generally, an action to recover damages for personal injury or injury to property must be commenced within three years of the injury” (Sullivan v. Keyspan Corp., 155 A.D.3d 804, 805, 64 N.Y.S.3d 82;  see CPLR 214[4], [5];  Kamath v Building New Lifestyles, Ltd., 146 A.D.3d 765, 767, 44 N.Y.S.3d 532).  “[T]he three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances,” however, “shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier” (CPLR 214–c[2];  see Jensen v. General Elec. Co., 82 N.Y.2d 77, 83–84, 603 N.Y.S.2d 420, 623 N.E.2d 547;  Sullivan v. Keyspan Corp., 155 A.D.3d at 805–806, 64 N.Y.S.3d 82).  “For purposes of CPLR 214–c, discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, ‘the injured party discovers the primary condition on which the claim is based’ ” (MRI Broadway Rental v United States Min. Prods. Co., 92 N.Y.2d 421, 429, 681 N.Y.S.2d 783, 704 N.E.2d 550, quoting Matter of New York County DES Litig., 89 N.Y.2d 506, 509, 655 N.Y.S.2d 862, 678 N.E.2d 474).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of a triable issue of fact with respect to the untimeliness of the plaintiff's causes of action to recover damages for exposure-related injuries (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Semerjian v. County of Suffolk, 282 A.D.2d 518, 518, 722 N.Y.S.2d 896).  Specifically, as in Sullivan v. Keyspan Corp., 155 A.D.3d 804, 64 N.Y.S.3d 82, the defendants here demonstrated that they undertook extensive efforts beginning in 1999 to inform and engage with property owners potentially affected by the contamination and remediation by conducting, among other things, door-to-door canvassing, direct mailings of newsletters and fact sheets, numerous public meetings, and highly visible and disruptive remediation work.  The defendants also submitted a transcript of the deposition testimony of the plaintiff's principal, who, among other things, admitted that he and tenants at the subject property regularly smelled a foul odor emanating from the building's foundation near the time that the plaintiff first acquired the subject property in 1997.  The defendants established, prima facie, that the plaintiff discovered or should have discovered, through the exercise of reasonable diligence, the primary condition upon which its exposure-related claims were based prior to January 13, 2007 (see Sullivan v. Keyspan Corp., 155 A.D.3d at 806, 64 N.Y.S.3d 82;  Benjamin v. Keyspan Corp., 104 A.D.3d 891, 892, 963 N.Y.S.2d 128).

In opposition, the plaintiff failed to raise a triable issue of fact as to the applicability of an exception to the statute of limitations, or whether the statute of limitations was tolled or whether the causes of action to recover damages for exposure-related injures were interposed within the applicable limitations period (see Suffolk County Water Auth. v Dow Chem. Co., 121 A.D.3d 50, 58–61, 991 N.Y.S.2d 613;  Benjamin v. Keyspan Corp., 104 A.D.3d at 892, 963 N.Y.S.2d 128).  In particular, the plaintiff failed to identify any misrepresentation made by the defendants that induced it to refrain from timely commencing the action, or show that the contamination independently resulted in some new injury within the statue of limitations period that was distinct and qualitatively different from prior injuries (see Sullivan v. Keyspan Corp., 155 A.D.3d at 806–807, 64 N.Y.S.3d 82;  Suffolk County Water Auth. v. Dow Chem. Co., 121 A.D.3d at 60, 991 N.Y.S.2d 613).

We disagree, however, with the Supreme Court's determination that the causes of action to recover damages for public and private nuisance allegedly arising from the defendants' remediation work were time-barred (see Sullivan v. Keyspan Corp., 155 A.D.3d at 807, 64 N.Y.S.3d 82).  These causes of action are subject to the limitations period in CPLR 214(4) rather than CPLR 214–c(2) because they do not seek “to recover damages for personal injury or injury to property caused by the latent effects of exposure” (CPLR 214–c[2];  see CPLR 214[4];  Sullivan v. Keyspan Corp., 155 A.D.3d at 807, 64 N.Y.S.3d 82;  Scheg v. Agway, Inc., 229 A.D.2d 963, 964, 645 N.Y.S.2d 687).  Here, the papers submitted in support of the defendants' motion, which included a transcript of the deposition testimony of the plaintiff's principal, established that the defendants conducted remediation work in close proximity to the subject property in 2009, and that the work allegedly caused tenant complaints about vibrations and pounding noises, and resulted in physical damage to the subject property, including a chimney that gradually became separated from the main structure, cracks in a stoop, and cracks in numerous parts of the foundation.  Accordingly, the defendants failed to establish their prima facie entitlement to summary judgment dismissing, as time-barred, the causes of action to recover damages for public and private nuisance allegedly resulting from remediation work conducted by the defendants insofar as asserted against them.

MASTRO, J.P., BALKIN, BARROS and CHRISTOPHER, JJ., concur.

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