Sullivan v. Keyspan Corp.

155 A.D.3d 804

64 N.Y.S.3d 82

William SULLIVAN, et al., appellants, et al., plaintiffs,

v.KEYSPAN CORP., et al., respondents, et al., defendants.

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

Nov. 8, 2017.

Reilly, Like & Tenety, Babylon, NY (Irving Like and Kenneth F. McCallion of counsel), for appellants.

John F. Hastings, Hicksville, NY (Bruce W. Felmly, pro hac vice, and Rachel A. Hampe of counsel), for respondents.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and LINDA CHRISTOPHER, JJ.

In an action, inter alia, to recover damages for injury to real property, the plaintiffs William Sullivan, Lynn M. Chmurzynski, and the other plaintiffs referenced in the notice of appeal, appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated August 7, 2014, as granted that branch of the motion of the defendants Keyspan Corp., Keyspan Energy Corp., and Keyspan Gas East Corp., doing business as Keyspan Energy and National Grid, which was pursuant to CPLR 3211 to dismiss the second amended complaint insofar as asserted against them by each of those plaintiffs except the plaintiff George Strain.

ORDERED that the appeal by the plaintiff George Strain is dismissed, as he is not aggrieved by the portion of the order appealed from (see CPLR 5511 ); and it is further,

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., doing business as Keyspan Energy and National Grid, which was to dismiss the sixth cause of action to recover damages for private nuisance insofar as asserted by the plaintiff Aristea Mousis, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from by the plaintiffs William Sullivan, Lynn M. Chmurzynski, and the other plaintiffs referenced in the notice of appeal; and it is further,

ORDERED that one bill of costs is awarded to the defendants Keyspan Corp., Keyspan Energy Corp., and Keyspan Gas East Corp., doing business as Keyspan Energy and National Grid, payable by the plaintiffs William Sullivan, Lynn M. Chmurzynski, and the other plaintiffs referenced in the notice of appeal, except Aristea Mousis.

The plaintiffs are more than 100 homeowners in Bay Shore, who allege, among other things, injury to real property resulting from alleged contamination emanating from the former site of a "manufactured gas plant" and from remediation work performed by the defendants Keyspan Corp., Keyspan Energy Corp., and Keyspan Gas East Corp., doing business as Keyspan Energy and National Grid (hereinafter collectively the defendants).

Five of the plaintiffs commenced this action by summons and complaint dated November 28, 2012, 54 of the plaintiffs joined the action by summons and amended complaint dated February 6, 2013, and the remaining plaintiffs joined the action by summons and second amended complaint dated May 15, 2013. The defendants moved to dismiss the second amended complaint as barred by the statute of limitations, for lack of standing, and as barred under the primary jurisdiction doctrine, among other things. The plaintiffs opposed the motion and cross-moved for summary judgment, inter alia, on the issue of liability. Most of the plaintiffs submitted affidavits in which they alleged that they either sustained actual property damage or were at risk of future property damage or personal injury from the contamination and remediation.

In the order appealed from, the Supreme Court granted that branch of the defendants' motion which was to dismiss the second amended complaint insofar as asserted against them by all of the plaintiffs except the plaintiff George Strain, who bought his property in June 2010, and denied the plaintiffs' cross motion in its entirety. The plaintiffs named in the first amended complaint (hereinafter the appellants) appeal, as limited by their brief, from so much of the order as granted that branch of the defendants' motion which was to dismiss the second amended complaint insofar as asserted against them by each of the appellants except George Strain. We modify.

" ‘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’ " ( Benjamin v. Keyspan Corp., 104 A.D.3d 891, 892, 963 N.Y.S.2d 128, quoting LaRocca v. DeRicco, 39 A.D.3d 486, 486–487, 833 N.Y.S.2d 213 ). 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 an issue of fact as to whether such an exception applies (see Texeria v. BAB Nuclear Radiology, P.C., 43 A.D.3d 403, 405, 840 N.Y.S.2d 417 ), or that the cause of action was interposed within the applicable statute of limitations (see East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 90 A.D.3d 821, 822, 935 N.Y.S.2d 616 ).

Generally, an action to recover damages for personal injury or injury to property must be commenced within three years of the injury (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 ). "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 demonstrated that they undertook extensive efforts...