Claim for damages arising from a continuing trespass due to the increased flow of water in underground structures allegedly caused by construction-site runoff was dismissed for failure to allege the date the claim accrued or the date the damages were repaired.
|Claimant(s):||BUFFALO YACHT CLUB|
|Claimant short name:||BUFFALO YACHT CLUB|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK, acting through New York State Department of Transportation and NEW YORK STATE THRUWAY AUTHORITY|
|Footnote (defendant name) :|
|Motion number(s):||M-91713, M-91740|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||The Knoer Group, PLLC
By: Robert E. Knoer, Esq.
Julia H. Purdy, Esq.
|Defendant's attorney:||For Defendant, New York State Thruway Authority:
Honorable Barbara D. Underwood, Attorney General
By: Darren Longo, Esq., Assistant Attorney General
For Defendant, State of New York:
Harris Beach PLLC
By: Allison B. Fiut, Esq.
Pietra G. Zaffram, Esq.
|Third-party defendant's attorney:|
|Signature date:||August 13, 2018|
|See also (multicaptioned case)|
Defendants State of New York (M-91713) and the New York State Thruway Authority (M-91740) move for dismissal of the claim on the grounds it fails to meet the pleading requirements of Court of Claims Act § 11 (b) and, in any event, is barred by the time limitations set forth in Court of Claims Act § 10 (3). Claimant, Buffalo Yacht Club, opposes the motions and cross-moves (CM-91894) for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6).
Claimant alleges in its Notice of Intention to File a Claim that beginning in 2014 the New York State Department of Transportation (DOT) commenced certain improvements in the area of the Peace Bridge Plaza in Buffalo, New York, including the installation of certain "modifications and infrastructure" to address storm-water runoff during the project (Fiut Affidavit, Exhibit 1, ¶ 3). The substance of the claim, as set forth in the notice of intention, is alleged as follows:
"Upon information and belief, the modifications and installation of the infrastructure has damaged the subsurface infrastructure and / or increased flow in certain drains and pipes maintained by the Buffalo Sewer Authority or others that run underneath property owned by the Buffalo Yacht Club at 190 Porter Avenue, Buffalo, New York 14201 . . . The pipes and drains have been compromised. As a result, water is undermining the parking lot and break wall owned and maintained by the Buffalo Yacht Club. Such subsurface discharge is not open or obvious" (id.).
Attached to the notice of intention were materials entitled Hydro International Storm Water Downstream Defender Technical Submittal and a partial photocopy of a Field Revision Sheet prepared by MJ Engineering & Land Surv. on January 27, 2015.
The claim, filed on November 15, 2017, alleges improvements to the Peace Bridge Plaza in Buffalo included "the use of a drainage pipe running under the Claimant's property to the Niagara River" (Longo Affidavit, Exhibit B, Notice of Claim, ¶ 5), that the pipes are maintained by the Thruway Authority as a benefit to the DOT (id. at ¶¶ 6,7), that "the modifications and installation of the infrastructure damaged the subsurface infrastructure and/or increased flow in certain drains and pipes that run underneath [claimant's property]" (id. at ¶ 8) and that, "[a]s a result, water was undermining the parking lot and break wall owned and maintained by the [claimant]" (id. at ¶ 9). While claimant alleges in the claim that "[d]rainage through the drains and pipes constitutes a continuing trespass and nuisance to Claimant's property" (id. at ¶ 10), it also alleges that this trespass and nuisance caused "damage to the Claimant's property up through the Claimant's repair of the drain line and reconstruction of the break wall" (id. at ¶ 14).
Defendants contend that neither the Notice of Intention to File a Claim nor the claim meet the pleading requirements of Court of Claims Act § 11 (b) because both fail to allege the date the claim accrued. In the alternative, defendants contend that the claim is untimely as it accrued more than 90 days before the notice of intention was served. In this regard defendants contend the claimant became reasonably aware of its damages no later than November 9, 2016 when it received the inspection report prepared by McMahon & Mann Consulting Engineers, P.C. (MMCE), which identified a misaligned 18-inch concrete drainage pipe and movement of the concrete bulkhead on claimant's property. MMCE was able to provide recommendations to repair the concrete pipe but not the bulkhead, which required further investigation. The cause of the problems was not set forth in the report (Fiut Affidavit, Exhibit 3).
Claimant opposes the motion on the ground it was unable to allege a more definitive date of accrual in either the notice of intention or the claim as its damages were continuing with each heavy rainstorm and the entity responsible for the damage was unknown. Claimant argues that its notice of intention sufficiently alleged the continuing nature of its claim by stating, in the present tense, that "water is undermining the parking lot and break wall owned and maintained by the Buffalo Yacht Club" (Exhibit 1, ¶ 3). Claimant also contends that the portion of the claim expressly alleging a continuing trespass fulfills the pleading requirements of Court of Claims Act § 11 (b), and that the claim was timely because it did not become aware of the entity responsible for the damage until January 24, 2017 when it received the DOT's response to its request for information under the Freedom of Information Law (FOIL). Claimant indicates that this FOIL response included a permit application from the DOT for the Peace Bridge Plaza identifying the Niagara River as the nearest waterbody into which construction-site runoff would discharge. Claimant, surmising that this water was discharged through the pipes underneath its property, served a notice of intention, according to claimant's counsel, on February 28, 2017.(1) The claim was thereafter filed on November 15, 2017. The date the claim was served has not been established.
The State's waiver of immunity from suit is contingent upon compliance with the specific conditions set forth in article II of the Court of Claims Act, including the pleading requirements set forth in § 11 (b) (Court of Claims Act § 8; Lepkowski v State of New York, 1 NY3d 201 ; Davis v State of New York, 64 AD3d 1197 [4th Dept 2009], lv denied 66 AD3d 1504 [4th Dept 2009], lv denied 13 NY3d 717 ). "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruwau Auth., 81 NY2d 721, 724 ).
Section 11 (b) of the Court of Claims Act requires that a claim state "the time when and the place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." "Failure to abide by these pleading requirements constitutes a jurisdictional defect mandating dismissal of the claim, even though this may be a harsh result" (Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015], quoting Morra v State of New York, 107 AD3d 1116 [3d Dept 2013]; see also Dinerman v NYS Lottery, 69 AD3d 1145, 1146 , lv dismissed 15 NY3d 911 ; Nasir v State of New York, 41 AD3d 677 [2d Dept 2007]; Mujica v State of New York, 24 AD3d 898 [3d Dept 2005], lv denied 7 NY3d 701 ). The guiding principle in determining the sufficiency of a claim is whether it is sufficiently definite " 'to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances' . . ." (Lepkowski v State of New York, 1 NY3d at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). While pleading with "absolute exactness" is not required, a cause of action must be pled with sufficient specificity so as not to mislead, deceive or prejudice the rights of the State (Heisler v State of New York, 78 AD2d at 767). Here, defendants contend that the allegations in both the notice of intention and the claim are insufficiently specific to meet this standard in that they fail to allege facts from which the date of the claims accrual could be established or inferred.
For 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 ). Where a continuing wrong or occurrence prevents an evaluation of 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]). 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 ; see also Bloomingdales, Inc., v New York City Tr. Auth., 13 NY3d 61 ; Covington v Walker, 3 NY3d 287 , rearg denied 4 NY3d 740 , cert denied sub nom. 545 US 1131 ; Izzo v Town of Smithtown, 151 AD3d 1035 [2d Dept 2017]; cf. Town of Oyster Bay v Lizza Indus., Inc., 22 NY3d 1024 , rearg denied 23 NY3d 934 ; 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 ; 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, successive breaches constitute continuing wrongs that give rise to a new cause of action for each injury that occurs (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 ; Gates v AT&T Corp., 100 AD3d 1216 [3d Dept 2012]). While claimant alleged in the claim that the trespass and nuisance continued until the "repair of the drain line and reconstruction of the break wall" (Longo Affidavit, Exhibit B, claim, ¶ 14), it failed to allege the date of the repairs or the date by which the damages became reasonably ascertainable. Thus, even assuming that the nuisance and trespass complained of was a continuing wrong, claimant's failure to allege the date it discovered the extent of its damages requires dismissal of the claim.
Claimant's contention that it did not discover the entity responsible for the damage until January 24, 2017 when it received a response to its FOIL request from the DOT misses the point. Accrual of a claim is not deferred until claimant discovers the identity of the alleged tortfeasor. Rather, it accrues when damages are complete. The rule that a claim accrues when damages are reasonably ascertainable, sometimes referred to as the 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 ). While claimant's counsel acknowledges the fact that the damage to its property was repaired before the claim was served and filed, it failed to allege in the claim when the repairs were made or, more to the point, when it discovered the extent of its damages. Accordingly, the claim must be dismissed for failing to set forth the date the claim accrued as required by Court of Claims Act § 11 (b).
Turning to claimant's request to file a late claim nunc pro tunc, Court of Claims Act § 10 (6) specifically requires that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . ." Although claimant requests the Court to consider its previously filed claim as its proposed claim, the filed claim, as set forth previously, fails to comply with the jurisdictional pleading requirements of Court of Claims Act § 11 (b). Accordingly, claimant's failure to support its cross motion with a copy of a proposed claim that contains all of the information required by Court of Claims Act § 11 (b) mandates denial of its cross motion on this basis alone (see Davis v State of New York, 28 AD2d 609, 610 [3d Dept 1967]; Greene v The State of New York, UID No. 2017-040-082 [Ct Cl, McCarthy J., 2017]; Dennis v The State of New York, UID No. 2015-045-008 [Ct Cl, Lopez-Summa, J., 2015].
Based on the foregoing, defendants' motions are granted and the claim is dismissed. Claimant's cross motion is denied without prejudice.
August 13, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. While claimant's counsel indicates the notice of intention was served on February 28, 2017, counsel for the State of New York indicates that it was served on March 1, 2017. In addition, while counsel for the Thruway Authority indicates it was not served with the notice of intention until November 15, 2017, he relies upon paragraph 6 of the affidavit of Marcy Dikeman which indicates that the Notice of Claim, not the Notice of Intention to File a Claim, was served on November 15, 2017. Neither an affidavit of service nor an affidavit from either defendant has been provided establishing the date of receipt of the notice of intention.