New York State Court of Claims

New York State Court of Claims
SWEENEY v. STATE OF NEW YORK, # 2018-05-128, Claim No. 111990, Motion No. M-91812

Synopsis

Claim for personal injury and property damage was dismissed following trial. Based upon the evidence adduced at trial, claim was time barred.

Case information

UID: 2018-05-128
Claimant(s): BENJAMIN SWEENEY and BARBARA SWEENEY
Claimant short name: SWEENEY
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111990
Motion number(s): M-91812
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Bosman Law Firm, LLC
By: A. J. Bosman, Esq.
Defendant's attorney: Honorable Barbara D. Underwood, Attorney General
By: G. Lawrence Dillon, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: August 9, 2018
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimants, the prior owners of a dairy farm on State Route 26 in Boonville, New York, seek damages for personal injuries, property damage and loss of income allegedly caused by the State's recurring use of salt during the course of maintaining the highway in the winter months. The trial of this claim was held on March 5, 2018 and March 6, 2018.

The claimants' first witness was Benjamin Sweeney. Mr. Sweeney testified that he purchased property at 1439 State Route 26 in Boonville, New York in 1964 and operated a dairy farm there until he sold the farm to his son in "2008 or 2009."(1) He testified that during the period 2002 through 2004 his herd consisted of 120 dairy cows with an average production of 3600 pounds of milk every other day. According to Mr. Sweeney, he first began to notice a reduction in the milk output of his herd beginning in approximately 2000, and milk production was "really getting bad" by 2003. He stated at that time, in 2003, his cows became sick and overall milk production fell. In addition to having his herd seen by a veterinarian, Mr. Sweeney also testified that a stray voltage test was performed in 1997 to exclude the possibility that the problem he had been experiencing with reduced milk production was attributable to stray voltage in the area around the farm affecting his cows. Exhibit 14 was identified as correspondence received by the witness from Kenneth P. Stabb of the Municipal Commission of Boonville dated November 7, 2005. In his letter, Mr. Stabb recounts that a stray voltage test was performed at the Sweeney farm on Route 26 on February 28, 1997 and sets forth the data recorded during the test. In an effort to address the reduced milk production of his herd, the claimant contacted Timothy Smithling, a dairy nutritionist, who recommended various changes in the herd's nutrition regime. Mr. Sweeney testified that he implemented Mr. Smithling's recommendations but observed no subsequent changes in the continuing depressed levels of milk production. As changes in the nutritional components of the feed provided the cows proved ineffectual, livestock water analyses were performed at the claimants' farm by the end of October 2003 and continuing through May 2004 (Exhibit 4). The witness testified that in 2003 there were three wells on his property. One provided water to the family home, a second well serviced the cow barn and the third was located in or near a pond. The water analysis report from Dairy One Forage Analysis Laboratory of the sample taken on October 30, 2003 for the well servicing the cow barn indicates substantially raised levels of sulfates, chlorides, sodium and hardness. The report of the analysis performed on water in the pond on claimants' property in November 2003 similarly shows levels of sulfates, chloride, sodium and hardness substantially above expected levels. In December 2003 a new well dug in the rear portion of claimants' property was connected to the cow barn. According to Mr. Sweeney, several weeks after the cow barn was connected to the new well he noticed an increase in milk production as well as an increase in the amount of water consumed by the herd as measured by a water meter installed in the barn to measure water usage.

Mr. Sweeney identified Exhibit 13 as milk production data for the period 2000 through 2003 compiled monthly for claimants' dairy farm by the Dairy Farmers of America.(2) He next identified Exhibit 17 as correspondence he received from Dennis Pawlicki, Region 7 Assistant Transportation Maintenance Engineer for the Department of Transportation (DOT). The correspondence indicates that Mr. Pawlicki was contacted by the claimants' son, Brian, in December 2003 and that Mr. Pawlicki visited the claimants' farm on December 19, 2003. The Pawlicki letter states that water samples taken at the site indicate "relatively high levels of sodium and chloride (the components of salt) in the existing barn well and in the house well". Mr. Pawlicki indicated that it is DOT's policy not to pay damages for injuries to private water supply wells resulting from routine road salting. He also states that he had reviewed salt application records on Route 26 in the area of claimants' farm and determined that "the amount of salt applied over the past several years has been within our guidelines."

Mr. Sweeney testified that the new well dug in December 2003 serviced only the cow barn. He later connected his home to the water line servicing the cow barn because the well servicing his home was also contaminated by salt. A second well was dug sometime in 2004-2005 because the amount of water servicing both the barn and house was insufficient given that it was "a dry year". The witness stated that he and his family did not taste salt in the water which came to the house, but testified that during this period he was diagnosed with hypertension and his doctor suggested that he reduce his use of salt.

On cross-examination Mr. Sweeney acknowledged that various factors can affect the milk production of a herd. These factors include the number of cows "drying off", the number of cows which are lame, sick or decreasing in milk production as a result of age, and the number of heifers within a herd. He reiterated his testimony on direct examination that he began digging a new well in December 2003 and that following installation of the well he observed an increase in milk production and that the cows began drinking more water.

On redirect examination the witness testified that in 2003 twenty milking cows in his herd died over a five-month period. His herd was routinely seen by a veterinarian and he confirmed that a stray voltage test was performed in 1997 "because the [milk] production was down". He testified that following installation of the new well in December 2003, milk production increased during the spring of 2004.

The claimants called Brian Sweeney who testified that he has resided on the claimants' dairy farm since his birth in 1977, and that he took over ownership of the farm from his father in January 2009. The witness described problems experienced with the farm's dairy herd during 2003 stating that the cows became sickly (udder edema, loose manure) and that milk production decreased as did the quality of the milk, which showed an increase in bacterial content. In an attempt to address these problems the family had a stray voltage test performed and employed a nutritionist from the Lowville Farmers Cooperative who assisted the claimants in changing the nutritional content of the food fed to the dairy herd. The nutritionist, Tim Smithling, also took water samples which, once tested, revealed that the water servicing the cow barn had been contaminated by salt. Immediately thereafter the family installed a new well and dug a 1,500 foot ditch in which they laid pipe connecting the well to the dairy barn. A second well was dug in 2007 when the volume of water provided by the new well proved to be insufficient. The witness identified various costs incurred in constructing the new well in 2003, including payments to Seneca Plumbing and Hardware, to Gary Spaven and Sons contractors for concrete work, and additional expenditures for an excavator to dig the well. According to Brian Sweeney, as reflected on page 1 of Exhibit 11, the claimants borrowed $8,000.00 from a bank to finance construction of the new well installed in December 2003. He also identified entries on the final page of Exhibit 11 as costs incurred in the construction of the second well in 2007, including $2,520.00 to Jefferson Concrete and $1,210.00 to Robert Andrews, an excavator.

The witness testified that the claimants' farm has two tanks into which milk is deposited and from which it is later taken and sold. He explained that Exhibit 13 contains data on the amount of milk received from the claimants' farm by the Dairy Farmers of America, Inc. for the period 2000 through 2003. The data demonstrates a consistent reduction in the annual weight received from one tank from a high of 436,594 pounds in 2000 to a low of 369,519 pounds in 2003. Data with regard to the second tank likewise indicates a consistent reduction in overall milk produced from a high of 443,302 pounds in 2000 to a low of 369,169 pounds in 2003. The witness testified that following installation of a new well in 2003 the claimants' cows became less sick and drank more water than they had previously. The witness also related that during the same time period his daughters had experienced rashes for which they had sought medical treatment, although the rashes gradually improved after the family home was connected to the new well in the summer of 2004.

On cross-examination the witness agreed that various issues including sickness, lameness and the age of cows in the herd can affect overall milk production. In addition, heifers do not produce milk for the first one and one-half to two years of their lives. The effect of "drying off" periods surrounding the birth of a new calf may also effect production

On redirect examination the witness testified that the claimants began experiencing problems with the herd in the form of reduced milk production beginning in 1995.

Dennis Pawlicki was called as the claimants' next witness. Mr. Pawlicki testified that he is currently Assistant Regional Director of Operations in DOT Region 7. In December 2003 Mr. Pawlicki, then an Assistant Regional Transportation Maintenance Engineer, received a call from the claimants' son Brian who advised him that the wells on the family farm were contaminated by salt. In response, Mr. Pawlicki visited the farm and conducted an investigation, the results of which are set forth in correspondence addressed to the claimant, Benjamin Sweeney, dated February 12, 2004 (Exhibit 17). In his correspondence, Mr. Pawlicki notes that water samples were taken from the claimants' well by Upstate Laboratories on January 14, 2004 (sample results for the existing and new barn wells and the well serving the family residence were attached to the correspondence).

Summarizing the results, Mr. Pawlicki stated "[b]ased on these sample results, it appears that your existing wells have been contaminated with road salt. The problem is most likely due to the fact that your farm lies near the bottom of a long slope, and the drainage from a fairly long stretch of highway finds it's [sic] way onto your property" (Exhibit 17). Mr. Pawlicki further set forth in his letter that "[t]he Department of Transportation's current policy is that we can not pay for damages to private water supply wells resulting from routine road salting" (id., p. 2). According to the witness, the sample results demonstrated that sodium and chloride levels in the well serving the barn and family residence exceeded New York State Department of Health standards and guidelines for salt content in drinking water.

The witness identified Exhibit 6 as a topographical map showing the contours and elevation of lands along a certain portion of Route 26, specifically including the location of the claimants' dairy farm. Mr. Pawlicki stated that he utilized the map to identify drainage patterns at and surrounding the Sweeney farm. Based on his investigation of the matter, including a site visit to the claimants' farm and the topographical map received as Exhibit 6, the witness concluded that because the claimants' farm was at the end of a long vertical curve, runoff from the highway was directed onto the claimants' property. Asked his professional opinion, Mr. Pawlicki stated: "My professional opinion is that the road salt is the source of contamination of the wells at the Sweeney farm".

Mr. Pawlicki testified that, as part of his investigation of the claimants' complaint regarding contamination of their wells, he reviewed records maintained by DOT regarding the amount of road salt used on Route 26 in the vicinity of claimants' farm. In particular, the witness reviewed snow and ice reconciliation data for salt usage in the Lyons Falls sub-residency where trucks salting Route 26 in the area of claimants' farm originated. He identified Exhibit 1 as containing snow and ice materials reconciliation data for DOT sub-residencies located in Lowville, Harrisville and Lyons Falls, New York, for the period 1998/1999 through 2002/2003. He explained that historically DOT exclusively utilized sand to address snow and ice on state highways, although salt would be added to the sand in an approximately 5% mixture to prevent the sand from freezing while it was stored. Beginning in the mid-1990s, the Department began to change from pure sand to the use of pure salt, and the proportion of salt used increased over time until approximately 2002-2003 when the conversion to pure salt was completed. The witness acknowledged that the number of complaints regarding contamination of wells, and other environmental complaints, increased following the conversion to the use of pure salt on winter roadways.

Referring to Exhibit 1, the witness testified that the snow and ice reconciliation data indicates that the Lyons Falls residency utilized 1,011.5 tons of salt per truck in 1998-1999. The amount utilized per truck was 1,261 tons in 1999-2000, 2,108.5 tons in 2000-2001, 1,779.5 tons per truck in 2001-2002 and 2,680.5 tons per truck in 2002-2003. The data further disclosed that the application rate of salt per mile in the Lyons Falls sub-residency in 1998-1999 was 163.6 pounds. The application rate in 2002-2003 was 218.3 pounds of salt per mile. There was a similar increase in the total amount of salt used in the Lyons Falls sub-residency from 2,023 tons in 1998-1999 to 5,361 tons in 2002-2003. Because the severity of winters is variable, Exhibit 1 also provides a five-year average regarding the amount of salt used per lane mile within the sub-residencies listed. In the case of the Lyons Falls sub-residency, the five-year average of the amount of salt used per lane mile was 46.5 tons or 93 tons per mile (two lanes). Applying that five-year average, the witness computed that an annual maximum of 31 tons of salt would flow onto the claimants' property from the one-third mile slope on Route 26. The data compiled for the winter of 2002-2003 indicates a usage rate of 87.9 tons per lane mile which would result in a maximum of 58 tons of salt migrating down the slope of Route 26 and onto the claimants' property. In concluding his testimony on direct examination, Mr. Pawlicki testified that his investigation confirmed that claimants' well had been contaminated by road salt.

On cross-examination the witness confirmed that a new well servicing the claimants' cow barn had already been installed at the time he wrote to Mr. Sweeney in February 2004. He also confirmed that the DOT Highway Maintenance Guidelines include recommended rates of application for salt and other deicing materials. He stated that as the Assistant Regional Transportation Maintenance Engineer for the seven counties included in DOT Region 7, he was aware that the area where the claimants' farm is located consistently experiences some of the most severe winter driving conditions of any county within the region.

The Court received in evidence Exhibit Q, a certified copy of the DOT Highway Maintenance Guidelines regarding snow and ice control in effect from December 1993 through April 2006. Referring to page 17 of the exhibit, the witness testified that DOT salt application rate guidelines differ depending upon whether the application occurs during periods of light to moderately accumulating snow, rapidly accumulating dense snow or high ice content conditions including freezing rain and sleet. With regard to light or moderately accumulating snow, the guidelines provide for an initial application of 225 pounds of salt per mile, per lane. Follow-up applications when required are to be disbursed at 115 pounds of salt per lane mile. With regard to rapidly accumulating dense snow or high ice content events, initial applications are to be made at 270 pounds of salt per lane mile. Follow-up applications are dependent upon conditions. Road surfaces which are glazed or packed following initial applications require a follow-up application at 270 pounds of salt per lane mile. For surfaces which are "mealy or slushy" follow-up applications shall be at 115 pounds of salt per lane mile.

Referring next to the Snow and Ice Material Reconciliation Data Sheet received as Exhibit 1, the witness testified that the application rate for vehicles originating from the Lyons Falls sub-residency in 2002-2003 was 218.3 pounds of deicing material per lane, per mile. Thus, the application rate for vehicles from the Lyons Falls sub-residency during that period was below the application rate guidelines established for both light to moderately accumulating snow (225 pounds of deicing material per lane mile) and for rapidly accumulating dense snow and high ice content conditions (270 pounds of deicing material per lane mile). In addition, the witness testified that although the claimants' farm experienced run- off from the one-third mile slope on Route 26, not all of the salt applied would run down the slope and onto the claimants' property.

On redirect examination the witness testified that the DOT discontinued the use of pure sand in favor of pure salt beginning in the mid-1990s as a result of various studies which showed that pure salt was superior to sand in controlling snow and ice on road surfaces. He was aware of alternative deicing products, but stated that those products are generally either less effective than salt or prohibitively expensive. Finally, the witness confirmed that the analyses of the water samples obtained by both the claimants and DOT demonstrated elevated levels of the components of road salt in the claimants' wells.

The claimants' next witness was Mr. Kenneth Stabb, a former superintendent with the Municipal Commission of Boonville, a public utility providing electrical and water service in southern Lewis County. Mr. Stabb testified that in 1997 he performed a stray voltage test at the claimants' property on Route 26 at the claimants' request. The impetus for the request was Mr. Sweeney's concern regarding reduced milk production. He provided a technical description of stray voltage which essentially indicated that parallel electrical currents flowing from or through electrical equipment and distribution lines can affect the environment in close proximity to the lines and equipment. With regard to dairy farms, he testified that stray or errant voltage can change the behavior of cows and thereby affect milk production. He cited examples such as electrical shock while drinking water, while the cows are being milked or in instances where they might rub against a metal stanchion or pole. Mr. Stabb testified that the claimants' property is not served by high power lines but rather an electrical distribution line operating at a lower level of intensity.

The witness testified that at the claimants' request he prepared the letter dated November 7, 2005, received as Exhibit 14, in which he sets forth the results of the stray voltage test he performed at claimants' farm in 1997. He also related that in 2005 the Public Service Commission (PSC) required utilities such as the Municipal Commission of Boonville to perform stray voltage testing every five years for electrical transmission lines and equipment which the general public is unlikely to interact with, and annually for equipment and lines in areas where the general public is likely to come into close contact with the electrical infrastructure. Mr. Stabb was not aware of any reports indicating that the periodic testing required by the PSC had determined the presence of stray voltage at the claimants' farm on Route 26.

The claimants next called Timothy Smithling. Mr. Smithling retired after 18 years as a dairy nutritionist with the Lowville Farmers Co-Op in Lowville, New York, a farm supply cooperative. He testified that he first met the claimants in May 2003 when they requested nutritional assistance from the cooperative. In response to the claimants' request, Mr. Smithling went to the farm on Route 26 where the Sweeneys expressed their concerns regarding reduced milk production. The witness observed the claimants' herd and noticed that the cows were "a little thinner" than normal and that their manure was "looser than you might expect". Mr. Smithling checked the claimants' forage and recommended various nutritional supplements which, once implemented, failed to produce any noticeable improvement in the health of the herd. His experiences with the Sweeney farm were memorialized in correspondence from the witness to Dennis Pawlicki of the DOT dated January 19, 2004 (Exhibit 2, pp. 7-8). The witness's testimony at trial closely followed his recounting of events in his 2004 correspondence to Mr. Pawlicki.

Mr. Smithling testified that the claimants again contacted him in late July or early August 2003, reporting declining milk production, and that various changes made thereafter in the herd's feeding program over the next few months had no apparent effect on the herd or its milk production. Around this time the witness determined that the reduction in milk production appeared to coincide with the cows returning to the barn in July and August. Surmising that the water within the barn might be affecting the herd, he took a water sample, the results of which indicated high levels of both sodium and chloride. In response to this information the claimants switched the water supply to the barn from a well to a pond on the property. When there was no noticeable improvement, a sample of pond water was taken in November 2003, which also found high levels of both sodium and chloride. The witness also tested the new well installed by the claimants in December 2003 which, when tested, revealed low levels of salt.

According to his testimony at trial, milk production at the claimants' dairy farm increased after installation of the new well and both the weight of the cows and the consistency of their manure improved. The witness noted that the livestock water analysis reports received from Dairy One Forage Analysis Laboratory with regard to each of his three samplings of claimants' water were attached to this correspondence to Mr Pawlicki. Referencing the water analysis from claimants' milk barn, Mr. Smithling testified that in addition to the actual test results the report sets forth levels for each of the components analyzed which, when exceeded, may pose "possible problems for mature cattle" (Exhibit 2, p. 9). The document indicates that the stated levels that may pose potential problems for mature cattle are "based primarily on research, literature and field experiences" and cites the third edition of the Dairy Reference Manual as a source.

Finally, Mr. Smithling testified that, following receipt of the initial livestock water analysis reports, he was speaking to the claimants in their home when Mrs. Sweeney went to the freezer and removed an ice cube tray. From the tray she removed several ice cubes and the witness observed a white powder at the bottom of the tray. Mr. Smithling used his finger to sample the white powder which he testified at trial tasted like salt.

Claimants re-called Benjamin Sweeney who testified that he provided background documentation used by their former attorney, Leon Koziol, to compile responses to the defendant's demand for a verified bill of particulars. In particular, Mr. Sweeney testified that he provided Mr. Koziol documentation regarding the losses attributable to reduced milk production, the cost of replacement of wells and the amounts of loans taken to offset reduced milk production set forth on page 11 of Exhibit 18. He testified that the dollar values set forth on page 11 detailing economic damages arising from contamination of their wells are accurate. Mr. Sweeney concluded his testimony by identifying Exhibit 15 as containing medical records relating to medical treatment provided to him and his wife.

The defendant moved for a directed verdict following the completion of claimants' direct case. The court reserved on the motion.

The defendant called Carl Kochersberger, Jr. who testified that he joined the New York State DOT in 2006. Since 2014 Mr. Kochersberger has been an Environmental Specialist 2 which he testified, in part, includes involvement with issues involving the environmental impact of contaminants such as salt in soil and ground water. The witness testified as an expert at the trial.

Mr. Kochersberger testified that when salt is applied to a highway it begins to melt, reverting back to sodium and chloride ions and draining into available drainage systems along the perimeter of the highway. After reviewing Exhibits C through O, photographs of Route 26 and the claimants' dairy farm, he testified that the photos depict an open drainage system along Route 26 in the vicinity of the claimants' farm. Although no ditches are shown in the photographs, the contours of the roadway in conjunction with the surrounding topography constitute an open drainage system. He testified that he was unaware of any complaints prior to 2003 regarding contamination of wells by road salt in the area at or near the claimants' farm on Route 26.

On cross-examination, Mr. Kochersberger stated that although he was not aware of any complaints regarding salt contamination on Route 26 in the vicinity of claimants' farm prior to 2003, it is possible that the local regional office might receive such complaints without his knowledge. Having testified that he reviewed the report prepared by Mr. Pawlicki, the witness stated that in his opinion it appears that the accumulation of road salt on the claimants' property was a contributing factor in the contamination of their water wells.

The defendant called Michael Lashmet, a DOT Snow and Ice Program Engineer for the past 13 years. Mr. Lashmet testified that as part of his duties he is familiar with the Highway Maintenance Guidelines for snow and ice control in effect between 1993 and 2006, received in evidence as Exhibit Q. He stated that the claimants' farm is located within the Tug Hill Plateau which frequently receives heavy lake-effect snows from Lake Ontario. He confirmed that the snow and ice control guidelines establish specific application rates depending upon whether snow is lightly accumulating or heavy in nature. Referring to Exhibit 1, the witness testified that the snow and ice reconciliation data for 2002-2003 demonstrates that vehicles from the Lyons Falls sub-residency applied 218.3 pounds of deicing material per lane, per mile. He stated that the Lyons Falls application rate is within the limits set in the highway maintenance guidelines for the application of salt per lane mile under both light and heavy snow conditions.

On cross-examination the witness confirmed that he possesses no specific snowfall data regarding the Tug Hill Plateau and that the DOT guidelines for snow and ice removal in effect until 2006 did not address runoff from highways or the contamination of water, other than with regard to the storage and stockpiling of salt.

The first issue for determination is the timeliness of the claim. After twelve years of litigating this claim, defendant moved for dismissal on the ground it was untimely filed and served. The motion was returnable March 7, 2018, subsequent to the start of trial, and was adjourned to July 5, 2018. Defendant's sole argument on the motion was that the claim was untimely filed and served if it accrued on February 12, 2004, the date of the letter from Mr. Pawlicki of DOT confirming, based upon the water sample test results, that "it appears that your existing wells have been contaminated with road salt" (Exhibit 17). In its motion papers, counsel for the defendant admits that a notice of intention was properly served on February 19, 2004 but argues that the claim, filed on February 17, 2006 and served on February 27, 2006, more than two years after the date of Pawlicki's letter, is untimely under Court of Claims Act 10 and 11.

Court of Claims Act 10 (3) and 10 (3-b) require that claims for both unintentional and intentional torts be filed and served within 90 days of accrual unless a notice of intention is served within that same time. The difference between the two sections is that when a notice of intention is timely served, a claim alleging an unintentional tort must be filed and served within two years after accrual of the claim, whereas a claim alleging an intentional tort must be filed and served within one year following accrual. The State's waiver of immunity under Section 8 of the Court of Claims Act is conditioned upon claimants' compliance with the specific conditions to suit set forth in article II of the Court of Claims Act, which include the time limitations set forth in Court of Claims Act 10 (Lyles v State of New York, 3 NY3d 396, 400 [2004]; Alston v State of New York, 97 NY2d 159 [2001]). As a result, "[a] failure to comply with the time provisions of Court of Claims Act 10 divests the Court of Claims of subject matter jurisdiction" (Steele v State of New York, 145 AD3d 1363, 1364 [3d Dept 2016]; see also Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [2011]; Miranda v State of New York, 113 AD3d 943 [3d Dept 2014]; Encarnacion v State of New York, 112 AD3d 1003 [3d Dept 2013]).

In determining the timeliness of a claim, the date of accrual is critical. "The expression 'claim accrued' is not identical with the expression 'cause of action accrued.' The claim accrues when it matures, and the words 'claim accrued' have the same meaning as 'damages accrued.' " (Waterman v State of New York, 19 AD2d 264, 266 [4th Dept 1963), affd sub nom. Williams v State of New York, 14 NY2d 793 [1964]). Thus, for the purposes of applying the time limitations contained in Court of Claims Act 10, a claim accrues when damages are "reasonably ascertainable" (Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept 2016] [inner quotation marks and citation omitted]; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009], lv denied 13 NY3d 706 [2009]).

Where a continuing injury prevents an evaluation of the damages at the time of the occurrence or wrong, the time for commencing an action against the State in the Court of Claims does not begin to run until the extent of the damage can be ascertained (Chartrand v State of New York, 46 AD2d 942, 942 [3d Dept 1974]). The rule, sometimes referred to as "[t]he complete wrong rule[,] was created and applied to save a just claim and to recognize that ordinarily, but not invariably, one sues when one's damages are ascertained to be complete and calculable" (Boland v State of New York, 30 NY2d 337, 341 [1972]). Claims like the instant one alleging causes of action for trespass and nuisance "generally give rise to successive causes of action that accrue each time a wrong is committed" (Smith v Town of Long Lake, 40 AD3d 1381, 1383 [3d Dept 2007]; see also Petti v Town of Lexington, 92 AD3d 1111, 1114-1115 [3d Dept 2012]). In such cases, "[t]he harm does not consist of the lingering effects of a single, discrete incursion, but rather is a continuous series of wrongs" (Capruso v Village of Kings Point, 23 NY3d 631, 640 [2014]; see also Bloomingdales, Inc., v New York City Tr. Auth., 13 NY3d 61 [2009]; Covington v Walker, 3 NY3d 287 [2004], rearg denied 4 NY3d 740 [2004], cert denied sub nom. 545 US 1131 [2005]; Izzo v Town of Smithtown, 151 AD3d 1035 [2d Dept 2017]; cf. Town of Oyster Bay v Lizza Indus., Inc., 22 NY3d 1024 [2013], rearg denied 23 NY3d 934 [2014]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]; Watson v State of New York, 35 AD3d 985 [3d Dept 2006], lv denied 8 NY3d 816 [2007]; Selkirk v State of New York, 249 AD2d 818 [3d Dept 1998]). Where the State or a municipality is alleged to have breached a continuing duty, each breach constitutes a continuing wrong giving rise to a new cause of action for each successive injury (461 Broadway, LLC v Village of Monticello, 144 AD3d 1464, 1466 [3d Dept 2016]; New York State Elec. & Gas Corp. v County of Chemung,137 AD3d 1550, 1554 [3d Dept 2016]), lv dismissed, 28 NY3d 1044 [2016]; Gates v AT&T Corp., 100 AD3d 1216 [3d Dept 2012]). Recoverable damages are therefore limited "to those caused by the alleged unlawful acts sustained within 90 days preceding the date of filing of the notice of claim" (461 Broadway, LLC, 144 AD3d at 1466 [internal quotation marks and citations omitted]; see also Lucchesi v Perfetto, 72 AD3d 909, 912 [2d Dept 2010]; see also Cippitelli v Town of Niskayuna, 277 AD2d 540 [3d Dept 2000]; State of New York v General Elec. Co., 199 AD2d 595, 598 [3d Dept 1993]; Kulpa v Stewart's Ice Cream, 144 AD2d 205 [3d Dept 1988]).

First, defendant's assertion that claimants alleged in both the claim and notice of intention that the claim accrued upon receipt of Mr. Pawlicki's letter on February 12, 2004 indicating, based on the well water test results, that "it appears that your existing wells have been contaminated with road salt", is not entirely correct. While the notice of intention did allege that "[t]he claim arose on or about February 12, 2004", the claim alleges "[t]hat commencing approximately during the Winter of 2003 and continuing to the present, the State of New York deviated from reasonable standards of road maintenance by applying salt in lieu of the former sand and gravel to ice and snow covered public roadway surfaces along New York State Route 26 adjacent to claimants' land" (Claim, 3 [emphasis added]). Thus, notwithstanding defendant's contrary assertion, the accrual date alleged in the claim was not confined to February 12, 2004. Inasmuch as claimants alleged the continuous nature of the violation in their claim, and invoked the doctrine in opposition to the motion, defendant failed to establish its entitlement to dismissal of the claim in its pre-trial motion.(3) Defendant's motion (M-91812) is therefore denied.

Notwithstanding the above, the facts adduced at trial establish that the claimants suffered no damages in the 90-day period preceding the commencement of the instant action (see 461 Broadway, LLC, 144 AD3d at 1466). Mr. Sweeney testified that a new well to service the barn and house was dug in December 2003 and, according to Mr. Smithling, the well was not contaminated with excessive salt. Mr. Pawlicki also testified that milk production at the claimants' dairy farm increased after the installation of the new well and both the weight of the cows and the consistency of their manure improved. Accordingly, damages were complete upon installation of the new well in December 2003, which is the date the claim accrued. While the notice of intention served on February 19, 2004 was timely, the claim dated February 17, 2006 and served on February 27, 2006, more than two years after the date of accrual, was not.

To the extent it could be argued that claimants' cause of action for their personal injuries is not time-barred because their residence was not connected to the new well until the summer of 2004, Mr. Sweeney testified the claimants began using bottled water in 2003. The alleged adverse health effects upon the claimants, therefore, ceased beginning in 2003, at which time their injuries were complete and readily ascertainable. That being the case, the claim is time-barred with respect to claimants' personal injury cause of action. Moreover, with respect to the pond, which may still be contaminated, the property was sold in 2009, rendering this portion of the claim moot.

Inasmuch as defendant preserved its objection to the timeliness of the claim by raising it as an affirmative defense in the answer (Court of Claims Act 11 [c]), the claim must be dismissed.

Based on the foregoing, the claim is dismissed. All motions not otherwise decided herein are denied.

Let judgment be entered accordingly.

August 9, 2018

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

Papers Considered:

  1. Notice of motion, dated February 8, 2018;
  2. Affirmation in support by G. Lawrence Dillon, Esq., dated February 8, 2018, with Exhibits A-D;
  3. Affirmation in opposition by A. J. Bosman, Esq., dated March 4, 2018;
  4. Affirmation in reply by G. Lawrence Dillon, Esq., dated March 6, 2018.

1. All quotes are taken from the audio recording of the trial unless otherwise noted.

2. Although claimant's testimony indicated 2002, the actual report is through 2003.

3. Claimants' contention that defendant's motion was improperly made pursuant to CPLR 3211 (a) (2) is incorrect. The failure to comply with either the filing or service requirements of the Court of Claims Act results in a lack of subject matter jurisdiction requiring dismissal of the claim (Torres v State of New York, 107 AD3d 1471 [4th Dept 2013]). As a result, defendant properly moved pursuant to CPLR 3211 (a) (2).