New York State Court of Claims

New York State Court of Claims

PRISCO v. THE STATE OF NEW YORK, #2008-010-007, Claim No. 105242, Motion No. M-74543


Synopsis


Court granted defendant’s motion to dismiss claim as untimely because claim was not a continuing wrong and did not fall within toxic tort statute.

Case Information

UID:
2008-010-007
Claimant(s):
DINO PRISCO
Claimant short name:
PRISCO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105242
Motion number(s):
M-74543
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
ROBINSON, BROG, LEINWAND, GREENE, GENOVESE & GLUCK, P.C.
By: John D. D’Ercole, Esq.Roger A. Raimond, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 8, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on defendant’s motion to dismiss:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1

Claimant’s Memorandum of Law, Attorney’s Affirmation in Opposition and Exhibits.....................................................................................................................2

Reply Affirmation......................................................................................................3
Background
On November 15, 2000, defendant received a notice of intention which stated in pertinent part that the State, in designing, building, repairing and/or maintaining its road, Yonkers Avenue, the storm sewers, sanitary sewers, and the water main pipes of the roadway caused the channeling of water to discharge below the soil surface of claimant’s property at 1031 Yonkers Avenue, Yonkers (Defendant’s Ex. A). The notice of intention further alleged that the water has eroded and continues to erode the soil upon which claimant’s building is situated, thereby causing the building to shift, move or settle and has caused structural damage to the building causing damages in an amount yet to be determined, but believed to be not less than $2,000,000. Additionally, the notice of intention alleged that such “latent problems” have resulted in the collapse of a retaining wall on claimant’s property (id. at 3). The notice of intention also stated:
“The claimant is unable to specify the date that the injury arose because *** the underlying cause of the structural defects to the building is a latent injury to the claimant’s property. Moreover the claim is of a continuous nature and the claimant is unsure of the nature and source of the water, therefore the claimant is unable to identify the date the problem arose. Significantly the claimant retained AMM Engineering, P.C., (“AMM”) an engineering firm in October 1999 to investigate the settlement and movement of the Premises. AMM was unable to obtain from NYSDOT [New York State Department of Transportation] Region 8 (NYSDOT”) records pursuant to a Freedom of Information request (“FOIL”) that would establish with certainty the source of the water. In addition AMM was unable to obtain any information at all in response to its FOIL request The City of Yonkers (“Yonkers”). The County of Westchester Department of Public Works has denied they do any work on Yonkers Avenue as it is a state road.”

(id.). A claim was subsequently filed with the Clerk of the Court and, on November 26, 2001, the claim was served upon defendant (Defendant’s Ex. B). The claim alleged, “[t]he first day the claimant became aware that a claim existed against New York State was October 6, 2000 when claimant’s engineer reported such conditions” (Defendant’s Ex. B, ¶2 [e] 4).

Defendant timely served and filed an answer asserting lack of jurisdiction due to claimant’s failure to either timely serve a notice of intention or timely serve and file a claim within 90 days of accrual of the claim (Defendant’s Ex. C, ¶ 12).
Defendant’s Motion to Dismiss
  1. Court of Claims Act Jurisdictional Mandates
Defendant moves to dismiss on the ground that, inter alia, the notice of intention was defective because it failed to state when the claim accrued. Court of Claims Act §11(b) provides in pertinent part:
“The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, *** the total sum claimed. *** The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated.”

A notice of intention which does not conform to the statutory mandates of the Court of Claims Act is a nullity (see Fulton v State of New York, 35 AD3d 977). Defendant also argues that the claim accrued prior to October 8, 1999 and therefore the claim was not timely commenced. The requirements of §11 of the Court of Claims Act are to be strictly construed and failure to comply with the service provisions is a jurisdictional defect compelling the dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [“the failure to satisfy any of the (statutory) conditions is a jurisdictional defect”]; Welch v State of New York, 286 AD2d 496, 497-98). A claim accrues when damages are “reasonably ascertainable” (see Bullard v State of New York, 307 AD2d 676, 677), even if the damages “might be indefinite to some extent” (Ton-Da-Lay, Ltd. v State of New York, 70 AD2d 742, 743). The inability to ascertain the proper party responsible for the alleged wrong is not a valid excuse for failing to comply with the jurisdictional mandates for timely service under the Court of Claims Act (see Gatti v State of New York, 90 AD2d 840 [claimant’s mistaken belief that the town, rather than the State, owned the roadway was not a reasonable excuse for the delay in failing to timely file a claim against the State]).

Here, defendant argues that damages were reasonably ascertainable as early as 1995 as evidenced by claimant’s own examination before trial testimony wherein he stated that he noticed cracks in his building in “ ‘95 or ‘96 or ‘97, somewhere in that period” (Defendant’s Ex. D, p. 46, ll. 20-21) and when asked if the cracking had remained the same since he had first observed it or whether it has worsened, claimant responded “I don’t know, I didn’t measure” (id. at l. 25). In 1999, claimant hired an engineer to evaluate the cracks in the building (Defendant’s Ex. E, p. 338). The engineer prepared a report dated March 10, 2000 which indicated that he had first met with claimant on October 8, 1999 (id. at 339). At that initial meeting, claimant informed the engineer that it was claimant’s opinion that the sewer on Yonkers Avenue “had collapsed” and “had been broken for many years” and the roadway “has been settling for a number of years” (id.). Claimant also told the engineer that the building was constructed on an ancient underground creek. The engineer informed claimant that, based upon the preliminary information that claimant had provided, if true, it was very likely that the broken sewer could have contributed to the settlement of the building; “[h]owever to determine the exact cause of the settlement *** will require an extensive inspection and investigation” (id.). Claimant then retained the engineer to prepare a detailed report addressing the possible causes of the cracks (id.). Thus, it is clear that claimant was aware of the cracks in the building prior to retaining an engineer in October 1999 and that claimant did not timely commence an action within 90 days of accrual, i.e. when damages were reasonably ascertainable. Defendant adequately pleaded the jurisdictional defect of untimeliness in its answer (Defendant’s Ex. C, ¶ 12).
  1. Applicability of CPLR 214-c
Claimant argues that his claim is timely under CPLR 214-c(4) because the notice of intention was served within one year of discovery of the cause of the injury. Notably, the notice of intention was served on November 15, 2000 and the date of claimant’s engineer’s initial report was October 8, 1999. However, claimant points to exhibit A of his engineer’s affidavit, which is a letter dated October 6, 2000 wherein the engineer informs claimant that the FOIL requests for documents concerning water records from the Yonkers Department of Public Works and information on the construction of the concrete chamber connecting two sewers on Yonkers Avenue have not been fruitful and that “[w]ithout these records it is impossible to prepare a final report for this project, therefore my advice is to have your attorney contact them for the records”(Claimant’s Ex. A to Monaco Affidavit). Accordingly, claimant thereafter served the notice of intention on November 15, 2000, which claimant argues is within one year of the discovery of the cause of injury, i.e. the engineer’s report dated October 6, 2000.

Claimant also contends that his claim is covered by the statute because the damage to his building was caused by the latent effects of exposure to water flowing underground and that the technical information to ascertain the cause of his injury had not been discovered, identified or determined until the conclusion of the State’s and the City’s investigations regarding the roadway settlement in 2002 and 2003. CPLR 214-c provides that where an injury to property is caused by the “latent effects of exposure to any substance,” the three-year statute of limitations for injury to property shall be computed from the date of discovery of the injury by claimant or the date when, through the exercise of reasonable diligence, such injury should have been discovered by claimant, whichever is earlier (CPLR 214-c[2]). The statute further provides that where the discovery of the cause of the injury is alleged to have occurred less than five years after discovery of the injury or when with reasonable diligence such injury should have been discovered, whichever is earlier, an action may be commenced within one year of discovery of the cause of the injury, “provided, however, if any such action is commenced *** after the period in which it would otherwise have been authorized pursuant to subdivision two or three of this section the *** claimant shall be required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized and that he has otherwise satisfied the requirements of subdivisions two and three of this section [emphasis added]” (CPLR 214-c[4]).

The Court finds that claimant’s damage to his building does not fall within the parameters of the legislative intent behind the statute. Therefore, claimant cannot avail himself of the time periods set forth in CPLR 214-c(2) or (4). First, even assuming that underground water was indeed the cause of the damage to claimant’s building, water is not a “substance” within the meaning intended by the legislature in enacting CPLR 214-c (see Rochester Gas & Elec. Corp. v City of Rochester, 258 AD2d 945, 946 [“water is not a toxic substance, and the discovery rule of CPLR 214-c is therefore inapplicable to this action”]). Second, the damages to claimant’s building were not caused by “the latent effects of exposure to any substance” within the contemplation of the statute. As the Court of Appeals held in Blanco v American Tel. & Tel. Co., 90 NY2d 757, 767, “it is plain from reading the statute as a whole,” and upon review of its legislative history, “that the types of substances intended to be covered [by CPLR 214-c] are toxic substances.” In Blanco at 766, the Court of Appeals declined to “stretch the statute beyond its intended coverage” and rejected the argument that a keyboard fell within the meaning of “substance” as intended by the legislature.

In Patterson v City of New York, 289 AD2d 213, the Second Department addressed the applicability of CPLR 214-c in a case where miners building a tunnel had suffered from caisson disease due to breathing compressed air that was pumped into the underground chamber where they worked from November 1991 through February 1992. The miners argued that it was not until 1998 that they discovered that the symptoms of their disease were caused by their exposure to the improperly regulated compressed air. According to the miners’ doctor, compressed air is a toxic substance when decompression is not properly regulated. The Second Department noted that the legislature has long recognized caisson disease as an occupational disease of a slow-starting insidious character (id. at 214) and that the Workers’ Compensation Law had been amended to permit workers to file for compensation benefits based upon the date of disablement so that the right to compensation would not be barred before the worker was aware that he/she had the disease. The Second Department held that, “[a]lthough the plaintiffs’ working environment may have produced latent injuries,” the compressed air cannot be considered a toxic substance within the ambit of CPLR 214-c and therefore plaintiffs cannot avail themselves of the time provisions of CPLR 214-c. (id. at 214). Accordingly, their complaint was dismissed as untimely. The Second Department pointed to the Court of Appeals’ reasoning in Blanco and noted that only toxic substances were intended to be covered by the statute. The Second Department further reasoned that “[t]he air breathed by the plaintiffs was benign, and their allegations relate solely to the manner in which the air pressure was regulated in the tunnel and the subsequent decompression process. CPLR 214-c was not intended to apply to nontoxic substances which may, through improper use, cause latent injuries” (id. at 215). So too here, the water was not a toxic substance and claimant’s case does not fall within the ambit of CPLR 214-c because the statute was not intended to apply to nontoxic substances which may cause latent injuries.

In Germantown Cent. School Dist. v Clark, Clark, Millis & Gilson, 294 AD2d 93, 95-96, the Court held that “the statutory words, the legislative history and purpose behind the statute and existing case law support the conclusion that CPLR 214-c is not applicable” in an action where “the injuries to [plaintiff’s] property *** were not ‘caused by the latent effects of exposure’ *** within the intendment of this statute [emphasis in original].” In that case, the property owner hired a company to remove asbestos from the owner’s building. Thirteen years later, the owner discovered that the asbestos had not been entirely removed; however any claims against the company were time barred. Accordingly, the owner tried to invoke the discovery rule of CPLR 214-c (2) arguing that asbestos qualified as a toxic substance under the statute. The Court held, however, that the statute was inapplicable because the injuries “were not ‘caused by the latent effects of exposure’ *** within the intendment of this statute [emphasis in original]” (id. at 96). Rather, the Court held that the injury to the property had occurred 13 years earlier when the asbestos was negligently left in the building.

So too here, the statute is inapplicable because the injury to claimant’s property was not caused by the latent effects of exposure to a toxic substance. Indeed, the damage to claimant’s property was apparent and obvious as noted in the Engineer’s Daily Project Diary for August 28, 1999 regarding the Yonkers Avenue settlement and drainage problems which specifically stated, “adjacent building[1] had obviously [emphasis added] settled already” (Claimant’s Ex. C, p. 2). The examination before trial testimony of Paul Salchert, the State’s Regional Geotechnical Engineer, indicated that he had observed cracking along the rear of the building “[t]he very first time we were there” at the site (Claimant’s Ex. D, p. 66, l. 18). Additionally, the State documents reveal that a meeting was held at the site on July 30, 1999 to inspect the area with personnel from the New York State Department of Transportation (DOT) and the City of Yonkers wherein it was determined that the settled area of roadway was 50 feet long by 65 feet wide, with the most severe area in the northbound lanes (Claimant’s Ex. A). By memorandum dated August 27, 1999, DOT indicated that Yonkers Avenue was in “emergency status due to a settlement of a total of 1 foot” (Claimant’s Ex. B). Salchert further testified at his examination before trial that:
“each time we went down to the site, we took a look at those buildings more because it was amazing to see a building crack that much along the rear face. We were surprised that actually some of the walls were still standing, so - so, I do know that it was often brought up at least when on site and how often it was brought up when I was discussing the conditions on the phone in my office. I don’t remember how often or exactly when.”

(id. at 68, ll. 22-25; p. 69, l1. 2-7).

Furthermore, claimant has not sufficiently established that the damage to his building was caused by the latent effects to exposure to underground water. According to Salchert, the State’s Regional Geotechnical Engineer, many ideas were exchanged at the approximately five inspections of the site and via numerous telephone calls and e-mails; however no one could specifically point to the cause of the problem or where the water was flowing. The examination before trial testimony of Michael Bergmann[2] indicated that the cracks in claimant’s building were not due to roadway settlement of Yonkers Avenue (Claimant’s Ex. E, p. 21). As of May 22, 2002, according to the State, the cause of the roadway settlement was still unclear; however the information gathered suggested the settlement “may be a result of a long term and possibly an accelerating loss of fill around the utility structures through voids that developed prior to November 1999” (Claimant’s Ex. G).

Additionally, claimant cannot avail himself of the time provisions set forth in CPLR 214-c (4) because under that subsection “claimant shall be required to allege and prove that technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined prior to the expiration of the period within which the action or claim would have been authorized and that he had otherwise satisfied the requirements of subdivisions two and three of this section [emphasis added].” As previously noted, claimant has not satisfied the requirements of subdivision two and therefore cannot avail himself of subdivision four. In sum, claimant has failed to establish the applicability of CPLR 214-c.
  1. Continuing Violation Doctrine
Finally, claimant argues that his claim is timely because the injury to his building was caused by a continuing wrong which tolls the running of the period of limitations to the date of the commencement of the last wrongful act (see Selkirk v State of New York, 249 AD2d 818,819). Specifically, claimant argues that the latent effects of water caused the undermining of claimant’s property below the soil surface where claimant’s building was situated and caused structural damage to claimant’s building as evidenced by cracks in his building which continue to worsen. Claimant further argues that “[t]he very same defect” which caused the cracks also caused the State’s roadway to collapse (Claimant’s Memorandum, p 2). Claimant notes that the State and the City of Yonkers each conducted their own investigations regarding the roadway settlement and drainage problems on Yonkers Avenue and that the State’s investigation was not completed until May 2002 and the City’s investigation was not completed until September 2003 (id. at pp 14-15). Claimant points out that the investigations done by the State and the City were not available to claimant or his expert at the time of service of his notice of intention. Accordingly, claimant argues that because the investigations of the State and the City were ongoing, the nature of the wrong was continuing and thus his notice of intention was timely. The Court does not find claimant’s arguments persuasive.[3]

Preliminarily, it has not been established that the roadway settlement and the damage to claimant’s building were caused by the same defect. Indeed, the State engineers maintain that the cause of the roadway settlement was not the same cause for the cracks in claimant’s building (Claimant’s Ex. E, p 21). Moreover, claimant’s argument, that because the investigations by the State and the City were ongoing, his time to commence an action against the State was tolled, is without legal support. Thus, the investigations conducted by the State and the City as to the cause of the roadway settlement do not impact the timeliness of claimant’s action.

The key issue in determining the timeliness of this claim is when were claimant’s damages reasonably ascertainable. Once claimant’s damages were reasonably ascertainable, the time to commence an action against the State began to run (see Taylor v State of New York, 302 NY 177). This case is unlike Bronxville Palmer v State of New York, 36 AD2d 647, a 1971 Third Department case cited by claimant, where the trial court precluded the claimant from producing testimony establishing the date claimant had ascertained its damages. Here, claimant’s own examination before trial testimony established that the damages to his building were ascertainable as early as 1995 (Defendant’s Ex. D, p 46) and an Engineer’s Daily Project Diary submitted by claimant as an exhibit noted that in August 1999, claimant’s building had “obviously settled already” (Claimant’s Ex. C, p 2).

In Taylor, another case cited by claimant, the State replaced an old dam with a new one which raised the surface level of a lake approximately one and one half feet and, in times of heavy rainfall, flood damage was caused to lakeside properties. In that case, claimants alleged negligent design, construction and maintenance of the new dam. The Court of Appeals held that the 90 day time limitation for service of either a notice of intention or service and filing of a claim did not begin to run until the ice resulting from the flood had melted so that the damage was ascertainable (id. at 185). Here, claimant’s damages were ascertainable when he first observed the structural damage to his building and his decision not to conduct an investigation at that time and to wait years until he hired an engineer, did not toll the statutorily mandated time period (see Greenspan Bros. v State of New York, 122 AD2d 249, 250 [“(t)he fact that the claimant, for one reason or another chose not to ascertain its damages at that time is irrelevant”]).

Additionally, while the effects to claimant’s building may have been continuing, this is not a sufficient basis to invoke the doctrine of a continuing wrong “since it [the doctrine] may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct” (Selkirk v State of New York, 249 AD2d 818, supra at 819; see also Taylor v State of New York, 302 NY 177, supra [property damage from flooding accrued when damages were ascertainable]). Thus, merely because the soil beneath the surface of claimant’s building may continue to erode and the cracks in claimant’s building may continue to worsen, this does not establish that the wrong which produced these effects was a continuing violation (see Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687, 688 [“the mere fact that claimants may continue to suffer damage *** does not alter the fact that the [defendant’s] unlawful conduct, if any, occurred five years before the claim was filed;” therefore claimant could not invoke the continuing wrong doctrine and their claim was untimely]).

As noted above, the requirements of §11 of the Court of Claims Act are jurisdictional in nature and the failure to strictly comply with the service provisions compels dismissal of the claim (see Lyles v State of New York, 3 NY3d 396; Ivy v State of New York, 27 AD3d 1190). Once damages are reasonably ascertainable, even if they might be indefinite to some extent, the claim accrues and the time provisions begin to run, regardless of an inability or difficulty in ascertaining the proper party responsible for the alleged wrong (see Bullard v State of New York, 307 AD2d 676, 677, supra; Gatti v State of New York, 90 AD2d 840, supra; Ton-Da-Lay, Ltd. v State of New York, 70 AD2d 742, 743, supra).

Accordingly, defendant’s motion to dismiss is GRANTED.

April 8, 2008
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]. Adjacent building referred to claimant’s building.
[2]. This exhibit submitted by claimant fails to further identify Bergmann.
[3]. It is also noted that while the State addressed repairs to a 48-inch storm sewer that had collapsed and separated from the drainage box, the State found that the initial repair had not been done properly and could be a contributing cause to the roadway settlement (Claimant’s Ex. G, H) and as of 2002 the State was still addressing other possible contributing causes to its roadway settlement.