Demasi v. Dutchess Cnty. Dep't of Pub. Works

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: DANIEL D. ANGIOLILLO
• Citation: Demasi v. Dutchess Cnty. Dep't of Pub. Works, 101 A.D.3d 668, 955 N.Y.S.2d 366, 2012 N.Y. Slip Op. 8275 (N.Y. App. Div. 2012)
• Decision Date: 05 December 2012
• Parties: Douglas D. DEMASI, Sr., appellant, v. DUTCHESS COUNTY DEPARTMENT OF PUBLIC WORKS, et al., respondents.

101 A.D.3d 668

955 N.Y.S.2d 366

2012 N.Y. Slip Op. 08275

Douglas D. DEMASI, Sr., appellant,

v.DUTCHESS COUNTY DEPARTMENT OF PUBLIC WORKS, et al., respondents.

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

Dec. 5, 2012.

Mitchell L. Perry, White Plains, N.Y., for appellant.

James M. Fedorchak, County Attorney, Poughkeepsie, N.Y. (Keith P. Byron of counsel), for respondents.

DANIEL D. ANGIOLILLO, J.P., RUTH C. BALKIN, PLUMMER E. LOTT, and SHERI S. ROMAN, JJ.

In an action to recover damages for injury to property, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Brands, J.), dated May 9, 2011, as granted that branch of the defendants' motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.

ORDERED that the order is affirmed insofar as appealed from, with costs.

General Municipal Law § 50–i requires that an action against a municipality to recover damages for personal injury or injury to property be commenced within one year and 90 days after “the happening of the event upon which the claim is based.” Here, the plaintiff alleged, inter alia, that the construction and installation of a drainage system, completed pursuant to a work permit issued by the Dutchess County Department of Public Works, caused water and pollutants to be diverted onto his property. The plaintiff made no allegation of negligent maintenance, as he did not allege that the defendants owned or maintained the drainage system.

Under the circumstances of this case, “the happening of the event upon which the claim [was] based” (General Municipal Law § 50–i[1] ) was the approval of the work permit and completion of the project, which occurred in 1994 ( see Klein v. City of Yonkers, 53 N.Y.2d 1011, 1013, 442 N.Y.S.2d 477, 425 N.E.2d 865;Liston v. Town of Newburgh, 90 A.D.3d 861, 934 N.Y.S.2d 712;Scarzfava v. City of Newburgh, 255 A.D.2d 436, 680 N.Y.S.2d 595;Johnson v. Marianetti, 202 A.D.2d 970, 609 N.Y.S.2d 494;Pleasant Ridge Townhouses Homeowners' Assn. v. T & D Constr. Corp., 181 A.D.2d 871, 581 N.Y.S.2d 857;Nebbia v. County of Monroe, 92 A.D.2d 724, 461 N.Y.S.2d 127). Therefore, as measured from the date of this “occurrence,” the plaintiff's commencement of this action in June 2010 was untimely ( Liston v. Town of Newburgh, 90 A.D.3d at 862, 934 N.Y.S.2d 712;see Regatta Condominium Assn. v. Village of Mamaroneck, 303 A.D.2d 737, 738, 758 N.Y.S.2d 348).

The...