Lucchesi v. Perfetto

• Decision Date: 20 April 2010
• Citation: 72 A.D.3d 909,899 N.Y.S.2d 341
• Parties: Michael LUCCHESI, et al., appellants, v. Cesar PERFETTO, et al., respondents.
• Court: New York Supreme Court — Appellate Division

899 N.Y.S.2d 341

72 A.D.3d 909

Michael LUCCHESI, et al., appellants,

v.Cesar PERFETTO, et al., respondents.

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

April 20, 2010.

David G. Ironman, Staten Island, N.Y., for appellants.

John Gulino, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E. DiJoseph III], of counsel), for respondents.

JOSEPH COVELLO, J.P., ANITA R. FLORIO, HOWARD MILLER, and RANDALL T. ENG, JJ.

In an action, inter alia, to recover damages for nuisance, trespass, and negligence, the plaintiffs appeal from an order of the Supreme Court, Richmond County (Maltese, J.), dated November 19, 2008, which granted the defendants' motion for summary judgment dismissing the complaint, and denied their cross motion for summary judgment on the complaint and for an award of costs pursuant to CPLR 8303-a.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the first cause of action to recover damages for nuisance, and substituting therefor a provision granting that branch of the motion only to the extent that it seeks damages for acts of nuisance alleged to have occurred more than three years prior to the commencement of this action, and otherwise denying that branch of the motion, and (2) by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the second cause of action to recover damages for trespass, and substituting therefor a provision granting that branch of the motion only to the extent that it seeks damages for acts of trespass alleged to have occurred more than three years prior to the commencement of this action, and otherwise denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

On September 5, 1996, the defendants purchased a vacant parcel of land in Staten Island. Over the next several months, the defendants constructed a new house on their property, which was completed in late 1996 or early 1997. During construction, a contractor deposited fill consisting of topsoil and dirt on the defendants' property, which raised the elevation grade of the property approximately five to six feet. The defendants admit that some of the fill was also deposited on the adjacent parcel of property located to the southeast of their premises, which was vacant at the time they constructed their home. More than four years later, on August 14, 2001, the plaintiffs purchased the adjacent southeast parcel, and also constructed a new home on it.

On or about November 21, 2003, the plaintiffs commenced this action against the defendants seeking, inter alia, to recoverdamages for nuisance, trespass, and negligence. In their complaint, the plaintiffs allege that the deposits of fill which raised the elevation grade of the defendants' property created an unsupported steep embankment near the property line between the two parcels. They further allege that the steep embankment constituted a nuisance because it has caused boulders, mud, and debris to fall onto their property, and that the deposit of some ofthe fill onto their property without the permission of their predecessor-in-title constituted a continuing trespass. After depositions were completed, the defendants moved for summary judgment, contending that the nuisance, trespass, and negligence causes of action were time-barred by the three-year statute of limitations governing injury to property. The defendants also argued that the sole proximate cause of any damages that the plaintiffs had sustained was their failure to install a retaining wall when they constructed their home, as the plaintiffs' own builder and architect had recommended. The defendants further maintained that the plaintiffs could not recover damages for trespass based upon the spillover of fill onto their property because their predecessor-in-title had consented to the placement of the fill. The plaintiffs countered by cross-moving for summary judgment on the complaint, and for an award of costs pursuant to CPLR 8303-a. The Supreme Court granted the defendants' motion and denied the plaintiffs' cross motion, concluding, inter alia, that the plaintiffs' claims were barred by the applicable statute of limitations. We modify.

Contrary to the plaintiffs' contention, the Supreme Court properly awarded summary judgment to the defendants dismissing the fifth cause of action to recover damages for negligence, which is predicated upon the defendants' alleged failure to ensure that the elevation grade of their property was raised in a safe manner. The defendants made a prima facie showing that the negligence claim was barred by the applicable three-year statute of limitations ( see CPLR 214[4] ) through the submission of evidentiary proof that the fill which raised the elevation grade of their property was deposited during the construction of their home, which was...