Panzo v. Keyspan Corp.

176 A.D.3d 961

111 N.Y.S.3d 377

Donald PANZO, Sr., etc., Appellant,

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

2016–02225

Index No. 3712/08

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

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff is the executor of the estate of Vincent Grompton (hereinafter the decedent), who formerly owned real property located in Bay Shore (hereinafter the subject property). The decedent commenced this action against the defendants on January 28, 2008, seeking, inter alia, to recover damages for injuries to the subject property resulting from alleged contamination emanating over the course of decades from the former site of a manufactured gas plant, and from subsequent remediation work performed by the defendants. The executor of the decedent's estate succeeded him as the plaintiff in the action.

The defendants moved for summary judgment dismissing the second through eighth causes of action as time-barred or, in the alternative, for summary judgment dismissing those causes of action on the merits. By order dated January 7, 2016, the Supreme Court, inter alia, granted that branch of the defendants' motion which was for summary judgment dismissing the second through eighth causes of action as time-barred. The court did not address that branch of the defendants' motion which was for summary judgment dismissing those causes of action on the merits, nor have the defendants pursued that relief on this appeal. The plaintiff appeals. We affirm.

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 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 plaintiff's 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...