Bloomingdales v. New York City Transit

• Decision Date: 11 June 2009
• Docket Number: No. 99,99
• Parties: BLOOMINGDALES, INC., Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant. New York City Transit Authority, Third-Party Plaintiff-Appellant, v. M-Track Enterprises, Inc., Third-Party Defendant-Appellant. M-Track Enterprises, Inc., Second Third-Party Plaintiff-Appellant, v. Judlau Contracting, Inc., Second Third-Party Defendant-Appellant, et al., Second Third-Party Defendant. Judlau Contracting, Inc., Third Third-Party Plaintiff-Appellant, v. Janus Industries, Inc., Third Third-Party Defendant-Appellant.
• Court: New York Court of Appeals Court of Appeals

915 N.E.2d 608

886 N.Y.S.2d 663

13 N.Y.3d 61

BLOOMINGDALES, INC., Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, Appellant.

New York City Transit Authority, Third-Party Plaintiff-Appellant, v. M-Track Enterprises, Inc., Third-Party Defendant-Appellant.

M-Track Enterprises, Inc., Second Third-Party Plaintiff-Appellant, v. Judlau Contracting, Inc., Second Third-Party Defendant-Appellant, et al., Second Third-Party Defendant.

Judlau Contracting, Inc., Third Third-Party Plaintiff-Appellant, v. Janus Industries, Inc., Third Third-Party Defendant-Appellant.

No. 99

Court of Appeals of New York.

June 11, 2009.

Fabiani Cohen & Hall, LLP, New York City (Lisa A. Sokoloff of counsel), for appellant.

Cerussi & Spring, P.C., White Plains (Kevin P. Westerman and Deborah R. Brancato of counsel), for third-party defendant-appellant.

Biedermann, Reif, Hoenig & Ruff, PC, New York City (Peter H. Cooper and Peter Hoenig of counsel), for second third-party defendant-appellant and third third-party plaintiff-appellant.

Ahmuty, Demers & McManus, Albertson (Brendan T. Fitz-Patrick of counsel), for third third-party defendant-appellant.

Lester Schwab Katz & Dwyer, LLP, New York City (Harry Steinberg and Steven B. Prystowsky of counsel), for respondent.

OPINION OF THE COURT

PIGOTT, J.

In September 1999, third-party defendant Janus Industries, Inc., as part of a project undertaken by defendant New York City Transit Authority, began excavation work between 59th Street and 60th Street on the west side of Third Avenue in Manhattan. In the course of the work, Janus cut a working drainpipe that ran down from plaintiff Bloomingdales, Inc.'s roof, believing it to be a "dead" water main. It then installed a conduit encased in concrete in its place. Sometime thereafter, Bloomingdales experienced flooding on the lower level of its store when it rained. In February 2002, Bloomingdales hired a contractor, who excavated the area of the drainpipe, determined that it had been cut and discovered the conduit. Bloomingdales alleges it was required to install a new drainpipe above the conduit costing in excess of $165,000.

After filing a notice of claim, Bloomingdales then commenced an action against the New York City Transit Authority, in January 2003, alleging causes of action for negligence, trespass and nuisance. Third- and fourth-party actions ensued involving various contractors and subcontractors on the project.

The Transit Authority and third-party defendants moved for summary judgment dismissing the complaint, invoking Public Authorities Law § 1212, General Municipal Law §§ 50-e and 50-i and CPLR 214, arguing that Bloomingdales' claim was barred by the statute of limitations because the action was commenced more than one year and 90 days after the complained-of negligent act — the severing of the drainpipe.

Supreme Court concluded that the moving parties established their entitlement to summary judgment, finding that, pursuant to the controlling statutes, the statute of limitations was triggered when the drainage pipe was severed in September 1999 (13 Misc.3d 1202[A], 824 N.Y.S.2d 752, 2006 N.Y. Slip Op. 51642[U]). Bloomingdales appealed.

The Appellate Division reversed and reinstated the trespass and nuisance causes of action (52 A.D.3d 120, 859 N.Y.S.2d 22 [2008]). The majority held that the concrete conduit "physically interrupted [Bloomingdales'] storm drainpipe and interfered with [Bloomingdales'] easement and right of access to the sewer" (id. at 123-124, 859 N.Y.S.2d 22). Thus, it held that this was a "continuing" tort resulting in successive causes of action and because the claims were not tied to the single negligent act of severing the drainpipe, the actions were timely commenced (id. at 124, 859 N.Y.S.2d 22).

The Appellate Division certified the following question to this Court: "Was the order of this Court, which reversed the order of Supreme Court, properly made?" We now answer the question in the affirmative.

Public Authorities Law § 1212(2) and General Municipal Law § 50-i both require that an action for damage to real property be commenced within one year and 90 days after the occurrence of the event upon which the claim is...