Pilatich v. Town of New Balt.

• Decision Date: 21 November 2012
• Citation: 954 N.Y.S.2d 663,100 A.D.3d 1248,2012 N.Y. Slip Op. 07941
• Parties: Stephan A. PILATICH, Appellant, v. TOWN OF NEW BALTIMORE et al., Defendants, and William M. Hamilton et al., Respondents.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 1248

954 N.Y.S.2d 663

2012 N.Y. Slip Op. 07941

Stephan A. PILATICH, Appellant,

v. TOWN OF NEW BALTIMORE et al., Defendants,andWilliam M. Hamilton et al., Respondents.

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

Nov. 21, 2012.

David Woodin, LLC, Catskill (David E. Woodin of counsel), for appellant.

McHugh Law Firm, PC, Ravena (Christina A. Cronin of counsel), for respondents.

Before: MERCURE, J.P., MALONE JR., KAVANAGH, STEIN and GARRY, JJ.

KAVANAGH, J.

Appeal from an order of the Supreme Court (Pulver Jr., J.), entered September 7, 2011 in Greene County, which, among other things, granted a motion by defendants William M. Hamilton and Donna R. Hamilton for, among other things, summary judgment dismissing the complaint against them.

Plaintiff owns property on Jennings Road in the Town of New Baltimore, Greene County, on which he operates a farm. Defendants William M. Hamilton and Donna R. Hamilton (hereinafter collectively referred to as defendants) own and reside on a parcel of real estate located across the road from plaintiff's farm. Between 1991 and 1994, defendants constructed a stone wall at the entrance of their driveway alongside Jennings Road to deter vehicles from driving over their lawn. Sometime later, defendants installed several iron pipes on their property running from the far end of the stone wall along Jennings Road. According to plaintiff, the installation of the stone wall and pipes, coupled with defendant Town of New Baltimore adding “new paving and road material” on his side of Jennings Road, caused the roadway to “shift” toward his property, and large trucks are no longer able to access the driveway leading to his farm. He also argues that defendants' placement of the rock wall and pipes constituted a private nuisance that has substantially interfered with his use and enjoyment of his property.

In 2010, plaintiff commenced this action seeking, among other things, damages as well as an order directing defendants to remove the wall and pipes from their property. Prior to filing an answer to the complaint, defendants moved to dismiss pursuant to CPLR 3211(a)(7), asserting that plaintiff had failed to state a cause of action. In the alternative, defendants also moved for summary judgment dismissing the complaint on the ground that plaintiff's claims were barred by the statute of limitations( seeCPLR 3212). Supreme Court denied defendants' motion to dismiss, but granted defendants' motion for summary judgment concluding that plaintiff's claims were time-barred. Plaintiff now appeals.

Initially, we disagree with Supreme Court's conclusion that plaintiff's claim of private nuisance is untimely. While an action to recover damages for injury to property must be commenced within three years from the date of the injury ( seeCPLR 214[4] ), actions premised on a continuing nuisance involve a continuous wrong and, therefore, “generally give rise to successive causes of action that accrue each time a wrong is committed” ( Smith v. Town of Long Lake, 40 A.D.3d 1381, 1383, 837 N.Y.S.2d 391 [2007] ). In such cases, “damages are only recoverable to the extent that they were sustained during the three years immediately preceding commencement” of the action ( Cippitelli v. Town of Niskayuna, 203 A.D.2d 632, 634, 610 N.Y.S.2d 622 [1994];see Kearney v. Atlantic Cement Co., 33 A.D.2d 848, 849, 306 N.Y.S.2d 45 [1969] ). Here, plaintiff's claim of private nuisance is premised upon the existence of on-going damage being caused to his property by defendants' wall and iron posts. Thus, his claim for damages for the three-year period immediately prior to the commencement of this action is not untimely ( see Petti v. Town of Lexington, 92 A.D.3d 1111, 1114–1115, 939 N.Y.S.2d 144 [2012];Lucchesi v. Perfetto, 72 A.D.3d 909, 911, 899 N.Y.S.2d 341 [2010] ).

We also find that Supreme Court erred in granting summary judgment dismissing the complaint. Defendants' motion was made before issue was joined by the service of an answer ( seeCPLR 3212[a]; Berle v. Buckley, 57 A.D.3d 1276, 1277–1278, 869 N.Y.S.2d 679 [2008] ). Further, defendants limited their motion for summary judgment to whether the statute of...