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Maynard, O'Connor, Smith & Catalinotto, LLP

March 12, 2019

Partner, Justin W. Gray, Obtains Dismissal of Claims in Case Alleging Diversion of Water and Resulting Property Damage

Category: Firm News — admin @ 1:29 pm

The plaintiffs and defendants are neighboring property owners in Ulster County, New York. In 2006, the defendants were experiencing water inundation in the upper portion of their backyard due to multiple sources. To alleviate the problem, the defendants constructed a subsurface drainage system (sometimes referred to as a French drain system) in the upper portion of their backyard in the Spring of 2007. More than six years after the defendants installed their drainage system, the plaintiffs commenced a lawsuit claiming, in part, that the lower portion of their property had been inundated with water and collapsed because the defendants’ drainage system unnaturally diverted water onto their property. Amongst other relief, the plaintiffs sought to have the defendants’ drainage system either removed or altered, as well as over $100,000 in damages.

Mr. Gray subsequently obtained testimony from the plaintiffs’, as well as documentary evidence, establishing that the plaintiffs’ first noticed the alleged water inundation in 2008, and the property collapsed in 2009. Mr. Gray also engaged a hydrogeologist and soil engineer to examine the properties, both of whom opined that: (1) the defendants’ drainage system was diverting water away from the plaintiffs’ property, and (2) the inundation and collapse were caused by pre-existing topography and subsurface conditions, as well as the plaintiffs’ conduct with respect to their own property.

After the completion of discovery, Mr. Gray made a motion for summary judgment seeking dismissal of the plaintiffs’ causes of action that were based upon the alleged water diversion. The first argument asserted on behalf of the defendants was that the plaintiffs’ causes of action are barred by the three-year Statute of Limitations set forth in CPLR 214[4]. Under New York law, a lawsuit seeking damages for injury to property based upon trespass must be commenced within three years of when the damage was “apparent”. If such claim is based upon an allegation of negligence, the lawsuit must be commenced within three years of when the injury was sustained, notwithstanding that the actual damage is not suffered until later. In opposition to this argument, the plaintiffs argued that their claims did not accrue until they obtained an expert opinion as to the alleged cause of the water inundation/damage in 2014, and/or that they were timely based upon the ‘continuing wrong’ doctrine.

In its Decision and Order, the Ulster County Supreme Court agreed with the defendants, and dismissed as barred by the Statute of Limitations, all of the plaintiffs’ causes of action based upon alleged water diversion. The Supreme Court rejected the plaintiffs’ argument that their claims accrued in 2014, and held that they accrued, at the latest, in 2009 when they first noticed the land collapse at the edge of their property. The Supreme Court also rejected the plaintiffs’ assertion of the ‘continuous wrong’ doctrine because it is only applicable where the harm sustained “is not exclusively traced to the day the original objectionable act was committed,” and that the accrual date does not change simply because a plaintiff may have continuing consequential damages. The Supreme Court reasoned that, even assuming that the plaintiffs’ claims are true, their alleged harm can be exclusively traced to, and the injury occurred on, the date when the defendants’ installed their drainage system. Since the plaintiffs did not commence their lawsuit until 2013, the Supreme Court dismissed their causes of action as time-barred.

The full Decision and Order from Hon. Christopher E. Cahill of the Ulster County Supreme Court can be read here.

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