BLOOMINGDALES v. N.Y. CITY TR

LIPPMAN, P.J.

In 1999, defendant New York City Transit Authority had undertaken a project for the rehabilitation of an electrical power substation on 57th Street between Lexington and Third Avenues. As part of the work on that project, excavation was performed on Third Avenue between 59th and 60th Streets, outside plaintiff Bloomingdales, Inc.'s location at 1000 Third Avenue. In late 2000 or early 2001, when it would rain heavily, Bloomingdales would experience flooding in its lower level on the Third Avenue side of the building. Philip Bottcher, Bloomingdales' facility manager, testified at his examination before trial that backups occurred on several occasions, but that Bloomingdales did not associate the backups with any work done by or for the Transit Authority. He testified that, at first, Bloomingdales assumed there was a stoppage in the storm drainpipe. However, when they were unable to clear the pipe, they assumed that it was broken and in need of repair.

In February 2002, Bloomingdales hired a contractor to repair the pipe. When the contractor excavated the street, he discovered that Bloomingdales' storm drainpipe had been cut and that a concrete duct was bisecting the pipe. Bloomingdales' storm drainpipe was supposed to run west to east from the building to the main storm sewer. However, the pipe had been severed, and a 30-inch square concrete duct containing fiberglass conduits was running north-south through the pipe. As a result, water from the storm drainpipe was escaping into the ground, and at times backing up into the building, rather than flowing to the sewer. Bloomingdales had to install a new storm drainpipe above the concrete duct because the drainpipe needed to be pitched in order for the water to reach the sewer.

Bloomingdales filed a notice of claim against the Transit Authority for property damage, dated April 19, 2002, alleging that its storm drain lateral had been cut or damaged. Plaintiff then commenced this action in January 2003, asserting causes of action for negligence, trespass and private nuisance in order to recover the costs involved in replacing the pipe. Several third-party actions ensued. The Transit Authority filed a third-party action against M-Track Enterprises, Inc. for contribution and indemnification, alleging that it and its subcontractor, Mass. Electric Construction Co., failed to render proper services. M-Track, in turn, commenced a second third-party action against its subcontractors, Judlau Contracting, Inc. and Mass. Electric. Judlau then commenced a third third-party action against its subcontractor Janus Industries, Inc.

Judlau moved to dismiss the complaint pursuant to CPLR 3211 and 3212, asserting that it was barred by the applicable statutes of limitations (General Municipal Law § 50-e, 50-i; Public Authorities Law § 1212; CPLR 214). The Transit Authority and M-Track cross-moved for the same relief, and counsel for Janus submitted an affirmation in support of the motions by Judlau and the Transit Authority.

Supreme Court granted the motion and cross motions and dismissed the complaint. The court found that the cause of action for negligence accrued when the drainpipe was severed in September 1999. As a result, it determined that the action was untimely because it was not commenced within one year and 90 days after that event, as required by General Municipal Law § 50-i and Public Authorities Law § 1212. The court also found the nuisance cause of action time-barred, rejecting the argument that there was a continuing tort. Finally, the court stated that Bloomingdales could not circumvent the notice-of-claim requirement by characterizing its claim as an equitable action for continuing trespass instead of a tort claim for damages. We disagree with Supreme Court and reinstate plaintiffs causes of action for trespass and nuisance.

The Court of Appeals has held that a claim involving an underground trespass was not barred by the three-year statute of limitations for injury to property ( see 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48). In that case, the plaintiff, while excavating its property in 1960, discovered an encroachment belonging to the Sixth Avenue Subway which had been completed in 1939. The Court found that the resulting action was not time-barred because "an encroaching structure is a continuing trespass which gives rise to successive causes of action" ( id. at 52).

More recently, the Court of Appeals applied the continuous wrong doctrine in the context of an action for divorce premised on the ground of spousal imprisonment ( see Covington v Walker, 3 NY3d 287, cert denied 545 US 1131).

"Th[e] Court has applied the doctrine in certain cases such as nuisance or continuing trespass where the harm sustained by the complaining party is not exclusively traced to the day when the original objectionable act was committed. The rule is based on the principle that continuous injuries create separate causes of action barred only by the running of the statute of limitations against each successive trespass. The repeated offenses are treated as separate rights of action and the limitations period begins to run as to each upon its commission" ( id. at 292 [citations omitted]).

Here, the concrete duct physically interrupted plaintiffs storm drainpipe and interfered with plaintiffs easement and right of access to the sewer. This constituted a continuing trespass and resulted in successive causes of action. Thus, plaintiffs claim is not tied to the single negligent act of severing the drainpipe and was timely commenced.

A trespass claim arises when a party's easement is obstructed or infringed upon ( see Bogan v Town of Mt. Pleasant, 278 AD2d 264, lv dismissed 97 NY2d 638; Oliphant v McCarthy, 208 AD2d 1079, 1081), which is exactly what happened here. The dissent maintains that any "trespass lasted no longer than the act of cutting plaintiffs drainage pipe." However, it is clear that "we have consistently characterized an unlawful encroachment as a continuous trespass giving rise to successive causes of action" ( 509 Sixth Ave., 15 NY2d at 52).

Contrary to the arguments made by the moving parties and the dissent, Nebbia v County of Monroe ( 92 AD2d 724) is not controlling here. In Nebbia, the County had severed plaintiffs lateral sewer line in 1979, causing a backup of sewage onto plaintiffs property in 1982. The court found that the claim was based on the severing of the sewer line, not the resulting backup of sewage onto plaintiffs property. As a result, the claim was deemed untimely under General Municipal Law § 50-i because it was not commenced within one year and 90 days after the sewer line was severed ( see Nebbia, 92 AD2d at 725).

Nebbia bears some superficial similarity to this case because both cases deal with a severed pipe. However, there are significant differences. Nebbia does not address claims of trespass or nuisance. Rather, it seems that the plaintiff in that case sought to recover only upon the theory that the negligent severing of the pipe had caused damage to his property. Notably, Blooming-dales does not dispute that its negligence claim is time-barred and does not seek to recover for the property damage caused when water backed up into its store. Instead, it seeks to recover only for the cost of restoring the use of its easement, i.e., the cost of installing a new drainpipe.

A similar distinction was drawn in Cranesville Block Co. v Niagara Mohawk Power Corp. ( 175 AD2d 444), where the plaintiff had an easement allowing the use of two railroad spur lines over the defendant's property. In 1983, the defendant replaced an underground gas transmission line and severed one of the spur lines' tracks. The plaintiff discovered the damage in 1986 and commenced an action for nuisance, trespass and fraud the following year. The court found that the claims based upon the act of severing the tracks were time-barred because those claims accrued at the time the tracks were damaged. However, the court reached a different conclusion regarding the claim for damages due to defendant's interference with plaintiffs easement through the placement of its gas line. "Whether pleaded in trespass or nuisance, this continuous interference with plaintiffs right to use of the easement gives rise to successive causes of action, and the Statute of Limitations would only bar recovery of damages more than three years prior to commencement of the action" ( id. at 446).

Correspondingly, as noted above, Bloomingdales' claims are not based upon the act of severing the drainpipe. Instead, plaintiff seeks to recover for the continuous interference with its right to use its easement. As in Cranesville, whether plaintiffs claims are pleaded in continuing trespass or nuisance, the conduct was a continuing wrongful intrusion upon or interference with plaintiffs easement, interfering with the use and enjoyment of the property. Therefore, the claims asserting trespass and nuisance were timely commenced within the one-year-and-90-day limitations period.

We reject the assertion that the Court of Appeals eliminated the continuing tort theory for all trespass and nuisance claims in Jensen v General Elec. Co. ( 82 NY2d 77). In Jensen, the Court determined that CPLR 214-c required that an action for damage to property caused by exposure to substances be commenced within three years of the date of discovery ( see id. at 83). However, the date of discovery rule imposed by CPLR 214-c was intended to apply to injuries arising from exposure to toxic substances ( Blanco v American Tel. Tel. Co., 90 NY2d 757, 767 [CPLR 214-c held inapplicable to repetitive stress injuries caused by the use of a keyboard]). Likewise, this action is not rendered untimely by the requirement that the statute of limitations for a claim of property damage against a municipality begins to run within one year and 90 days after "the happening of the event, irrespective of when the action accrued" ( Klein v City of Yonkers, 53 NY2d 1011, 1013). Here, "the event," the interference with the easement, was by nature not discrete.

Having established a timely claim of trespass upon and interference with its easement, Bloomingdales should be allowed to recover for the cost of bringing that trespass to an end and restoring the functionality of the easement. To deny such a claim, as distinguished from one for the recovery of the cost of the water damage to the store, would preclude separate rights of action for the continuing interference with the use and enjoyment of property, in this case the easement to the sewer. Applying General Municipal Law § 50-i to these facts, using the single event of the pipe's severance to commence the running of the statutory period, would be inconsistent with existing case law and leave plaintiff without a remedy for a continuous trespass upon and interference with its easement.

Accordingly, the order of the Supreme Court, New York County (Robert D. Lippmann, J.), entered August 7, 2006, which, insofar as appealed from as limited by the briefs, granted motions by defendant Transit Authority and certain of the third-party defendant contractors to dismiss, as time-barred, plaintiffs causes of action for trespass and nuisance, should be reversed, on the law, without costs, the motions denied, and the trespass and nuisance causes of action reinstated.