Onder Realty, Inc. v. Keyspan Corp.

176 A.D.3d 958

111 N.Y.S.3d 380

ONDER REALTY, INC., Appellant,

v.KEYSPAN CORP., et al., Respondents, et al., Defendants.

2016–02229

Index No. 837/10

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

Argued - May 17, 2019

October 16, 2019

McCallion & Associates LLP, New York, N.Y. (Kenneth F. McCallion and Reilly, Like & Tenety [Irving Like ], of counsel), for appellant.

John F. Hastings, Hicksville, N.Y. (McLane Middleton, Professional Association [Bruce W. Felmly and Rachel A. Hampe ], of counsel), for respondents.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for injury to real property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated January 7, 2016. The order granted that branch of the motion of the defendants Keyspan Corp., Keyspan Energy Corp., and Keyspan Gas East Corp. which was for summary judgment dismissing the first through seventh causes of action insofar as asserted against them as time-barred.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Keyspan Corp., Keyspan Energy Corp., and Keyspan Gas East Corp. which was for summary judgment dismissing, as time-barred, those causes of action which sought to recover damages for public and private nuisance allegedly resulting from remediation work conducted by those defendants insofar as asserted against them, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiff is a corporation that formerly owned a parcel of real property in Bay Shore (hereinafter the subject property). It commenced this action against the defendants Keyspan Corp., Keyspan Energy Corp., and Keyspan Gas East Corp. (hereinafter collectively the defendants) and others on January 22, 2010, seeking, inter alia, to recover damages for injury to the subject property resulting from alleged contamination emanating over the course of decades from a former site of a manufactured gas plant, and from subsequent remediation work performed by the defendants. The defendants moved for summary judgment dismissing the first through seventh causes of action insofar as asserted against them as time-barred or, in the alternative, for summary judgment dismissing those causes of action insofar as asserted against them on the merits. By order dated January 7, 2016, the Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing those causes of action insofar as asserted against them as time-barred. The court did not address that branch of the defendants' motion which was for summary judgment dismissing those causes of action insofar as asserted against them on the merits, nor have the defendants pursued that relief on this appeal. The plaintiff appeals. We modify.

We agree with the Supreme Court's determination granting that branch of the defendants' motion which was for summary judgment dismissing the causes of action seeking damages for exposure-related injuries insofar as asserted against them as time-barred. "Generally, an action to recover damages for personal injury or injury to property must be commenced within three years of the injury" ( Sullivan v. Keyspan Corp. , 155 A.D.3d 804, 805, 64 N.Y.S.3d 82 ; see CPLR 214[4], [5] ; Kamath v. Building New Lifestyles, Ltd. , 146 A.D.3d 765, 767, 44 N.Y.S.3d 532 ). "[T]he three year period within which an action to recover damages for personal injury or injury to property caused by the latent effects of exposure to any substance or combination of substances," however, "shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier" ( CPLR 214–c[2] ; see Jensen v. General Elec. Co. , 82 N.Y.2d 77, 83–84, 603 N.Y.S.2d 420, 623 N.E.2d 547 ; Sullivan v. Keyspan Corp. , 155 A.D.3d at 805–806, 64 N.Y.S.3d 82 ). "For purposes of CPLR 214–c, discovery occurs when, based upon an objective level of awareness of the dangers and consequences of the particular substance, ‘the injured party discovers the primary condition on which the claim is based’ " ( MRI Broadway Rental v. United States Min. Prods. Co. , 92 N.Y.2d 421, 429, 681 N.Y.S.2d 783, 704 N.E.2d 550, quoting Matter of New York County DES Litig. , 89 N.Y.2d 506, 509, 655 N.Y.S.2d 862, 678 N.E.2d 474 ).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of a triable issue of fact with respect to the untimeliness of the causes of action to recover damages for exposure-related injuries (see generally Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Semerjian v. County of Suffolk , 282 A.D.2d 518, 518, 722 N.Y.S.2d 896 ). Specifically, as in Sullivan v. Keyspan Corp. , 155 A.D.3d 804, 64 N.Y.S.3d 82, the defendants here demonstrated that they undertook extensive efforts beginning in 1999 to inform and engage with property owners potentially affected by the contamination and remediation by conducting, among other things, door-to-door canvassing, direct mailings of newsletters and fact sheets, numerous public meetings, and highly visible and disruptive remediation work. The defendants also inspected the subject property twice in 2005 to determine whether certain remediation work between those inspections caused any damage, and mailed the results of their inspections to the plaintiff in 2006. The defendants also submitted a transcript of the deposition testimony of the...