Listwon v. 500 Metro. Owner, LLC

188 A.D.3d 1028

136 N.Y.S.3d 106

Michael LISTWON, respondent,

v.500 METROPOLITAN OWNER, LLC, et al., defendants,East Coast Drilling NY, Inc., etc., et al., appellants.

2018–07632

Index No. 512824/16

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

Argued—June 5, 2020

November 18, 2020

Fuchs Rosenzweig, PLLC, New York, N.Y. (Alicia Sklan of counsel), for appellant East Coast Drilling NY, Inc.

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas Hurzeler and David Pollack of counsel), for appellant RA Consultants, LLC.

Tamir Law Group, New York, N.Y. (Geoffrey Bowser of counsel), for respondent.

LEONARD B. AUSTIN, J.P., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for injury to real property, the defendants East Coast Drilling NY, Inc., and RA Consultants, LLC, separately appeal from an order of the Supreme Court, Kings County (Kathy J. King, J.), dated May 3, 2018. The order denied the separate motions of the defendants East Coast Drilling NY, Inc., and RA Consultants, LLC, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant East Coast Drilling NY, Inc., which was pursuant to CPLR 3211(a) to dismiss the demand for punitive damages insofar as asserted against it, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with one bill of costs to the plaintiff, payable by the defendant RA Consultants, LLC.

The plaintiff owns a parcel of real property located at 492 Metropolitan Avenue in Brooklyn (hereinafter the subject property), which is improved with a three-story structure. A new structure has been under construction on the adjoining lot at 500 Metropolitan Avenue since 2012. According to the plaintiff, these construction activities caused damage to the subject property, including but not limited to numerous cracks in the walls of the structure. In July 2016, the plaintiff commenced this action against the owner of 500 Metropolitan Avenue, the general contractor, and 10 John Doe defendants. On June 5, 2017, the plaintiff filed an amended complaint adding, among others, East Coast Drilling NY, Inc. (hereinafter ECD), and RA Consultants, LLC (hereinafter RAC), as defendants.

RAC moved pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against it as time-barred. ECD separately moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the amended complaint insofar as asserted against it, arguing, inter alia, that the amended complaint was untimely and that the demand for punitive damages was insufficiently pleaded. In an order dated May 3, 2018, the Supreme Court denied both motions. RAC and ECD separately appeal.

" ‘A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired’ " ( Sullivan v. Keyspan Corp., 155 A.D.3d 804, 805, 64 N.Y.S.3d 82, quoting Benjamin v. Keyspan Corp., 104 A.D.3d 891, 892, 963 N.Y.S.2d 128 [internal quotation marks omitted]; see East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 90 A.D.3d 821, 822, 935 N.Y.S.2d 616 ). "The burden then shifts to the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations, or raising [a question] of fact as to whether such an exception applies, or [as to whether] the cause of action was interposed within the applicable statute of limitations" ( Sullivan v. Keyspan Corp., 155 A.D.3d at 805, 64 N.Y.S.3d 82 [citation omitted]; see Texeria v. BAB Nuclear Radiology, P.C., 43 A.D.3d 403, 405, 840 N.Y.S.2d 417 ). Generally, an action to recover damages for injury to real property must be commenced within three years of accrual (see CPLR 214[4] ; Verizon N.Y. Inc. v. Consolidated Edison, Inc., 127 A.D.3d 621, 621–622, 8 N.Y.S.3d 139 ). A cause of action alleging property damage accrues " ‘when the damage [is] apparent’ " ( Russell v. Dunbar, 40 A.D.3d 952, 953, 838 N.Y.S.2d 97, quoting Alamio v. Town of Rockland, 302 A.D.2d 842, 844, 755 N.Y.S.2d 754 ).

We agree with the Supreme Court's determination to deny those branches of the motions which were to dismiss the property damage causes of action insofar as asserted against RAC and ECD as untimely. RAC and EDC established, prima facie, the untimeliness of the property damage causes of action by demonstrating that the injuries to the subject property were apparent by April or May 2013. In opposition, however, the plaintiff averred evidentiary facts sufficient to raise a question of fact as to whether ongoing construction activities at 500 Metropolitan...