Dabb v. NYNEX Corp.

• Decision Date: 18 June 1999
• Citation: 691 N.Y.S.2d 840,262 A.D.2d 1079
• Parties: Penny DABB, Individually and as Executrix of the Estate of Gordon L. Dabb, Deceased, Plaintiff-Respondent, v. NYNEX CORPORATION, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 840

691 N.Y.S.2d 840

Penny DABB, Individually and as Executrix of the Estate of Gordon L. Dabb, Deceased, Plaintiff-Respondent, v. NYNEX CORPORATION, Defendant-Appellant.

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

June 18, 1999.

Paul Morrison-Taylor, Buffalo, for defendant-appellant.

John A. Collins, Buffalo, for plaintiff-respondent.

PRESENT: LAWTON, J.P., HAYES, WISNER, HURLBUTT and SCUDDER, JJ.

MEMORANDUM:

Defendant appeals from an order denying those parts of its motion seeking dismissal of the complaint on the grounds that it is time-barred and defendant is the wrong party, or, alternatively, seeking dismissal of the sixth and seventh causes of action on the ground that they are facially deficient. Plaintiff commenced this action, individually and as executrix of the estate of her husband (decedent), alleging that high levels of stray voltage from alternating current on defendant's telephone line entered plaintiff's dairy farm and came into contact with the cows, causing them to become ill and diminishing their milk production. The complaint asserts causes of action for negligence, private nuisance, trespass to land and chattels, and prima facie tort, and seeks damages for injury to the cows, plaintiff's business and for personal injury and wrongful death.

Supreme Court properly refused to dismiss the complaint as time-barred under CPLR 3211(a)(5) because it was not conclusively established when the causes of action accrued (see, Glod v. Morrill Press Div. of Engraph, 168 A.D.2d 954, 955-956, 564 N.Y.S.2d 905). The court erred, however, in considering the Statute of Limitations issue under CPLR 214-c, rather than CPLR 214(4). CPLR 214-c applies to cases in which the adverse effects of exposure to a toxin do not manifest themselves for many years after the exposure takes place (see, Matter of New York County DES Litig., 89 N.Y.2d 506, 514, 655 N.Y.S.2d 862, 678 N.E.2d 474). In this case, however, the alleged harmful effect of electricity upon the cows is in fact patent, not latent, and thus there is no interval between the alleged exposure and resulting harm (see, Sweeney v. General Print., 210 A.D.2d 865, 621 N.Y.S.2d 132, lv. denied 85 N.Y.2d 808, 628 N.Y.S.2d 50 651 N.E.2d 918). We note that, although the Court in Jensen v. General Elec. Co., 82 N.Y.2d 77, 82, 603 N.Y.S.2d 420, 623 N.E.2d 547, held that the doctrine of continuing tort does not apply to property damage actions under CPLR 214-c except insofar as they seek injunctive relief, the doctrine is available to plaintiff under CPLR 214(4). The causes of action for trespass and nuisance would be timely with respect to any interference with plaintiff's property occurring within three years of commencement of the action (see, Sporn v. MCA Records, 58 N.Y.2d 482, 488, 462 N.Y.S.2d 413, 448 N.E.2d 1324).

The court further erred in denying that part of defendant's motion seeking dismissal of the sixth and seventh causes of action for decedent's personal injury and wrongful death and plaintiff's loss of consortium. There is no recovery for "emotional distress caused by the negligent destruction of one's property * * * nor for emotional distress caused by the observation of damage to one's property" (Jensen v. L.C. Whitford Co., 167 A.D.2d 826, 562 N.Y.S.2d 317). Defendant is not liable for decedent's psychic or...