State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 31, 2016 521570
________________________________
NEW YORK STATE ELECTRIC &
GAS CORPORATION,
Appellant,
v MEMORANDUM AND ORDER
COUNTY OF CHEMUNG et al.,
Respondents.
________________________________
Calendar Date: February 19, 2016
Before: Peters, P.J., Garry, Rose, Lynch and Clark, JJ.
__________
Brickley, Sears & Sorrett, PA, Boston, Massachusetts
(Joseph G. Curran of Ward Greenberg Heller & Reidy LLP,
Rochester, of counsel), for appellant.
Barclay Damon, LLP, Elmira (Bryan J. Maggs of counsel), for
County of Chemung, respondent.
Lynch Law Office, PLLC, Syracuse (Ryan L. Abel of counsel),
for Town of Horseheads, respondent.
Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel),
for Village of Horseheads, respondent.
__________
Lynch, J.
Appeal from an amended order of the Supreme Court (O'Shea,
J.), entered June 4, 2015 in Chemung County, which, among other
things, granted defendants' motions to dismiss the complaint.
Plaintiff provides natural gas to residential and
commercial customers in the Town and Village of Horseheads,
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Chemung County. The natural gas is distributed through gas
mains, pipes and equipment owned by plaintiff that were first
installed underground during the mid to late nineteenth century.
Defendant County of Chemung owns and operates the Chemung County
Sewer District, which designed and constructed a sewer system in
the 1960s in the Town and Village of Horseheads, which included
underground main and lateral pipes. Defendants Town of
Horseheads and Village of Horseheads each provide water to their
residents through a system of underground water mains and service
lateral pipes. These structures were also constructed in the
1960s. In 2005 and again in January 2011, there were gas
explosions and fires at separate homes in the Village (see
Peterson v New York State Elec. & Gas Corp., 115 AD3d 1029, 1029
[2014]). The subsequent investigation revealed that the
explosion was caused by a leak in the lateral gas line that led
from the gas main to the house, and the leak was caused by stress
corrosion cracking in the lateral line.
Following the 2011 explosion, plaintiff hired Lucius
Pitkin, Inc. (hereinafter Pitkin), a metallurgical consulting
firm, to assess the fitness of its medium pressure gas service
lateral pipes located in the Town and Village. Pitkin analyzed
67 lateral pipes; 49 were selected because they were proximate to
water and/or sewer lines and 18 were selected at random. After
investigating all 67 pipes, Pitkin issued a report in November
2013 wherein it concluded that 39 gas lateral pipes located near
sewer and/or water mains exhibited certain damages, including
damage to pipe coating, accompanied by "loss of metal pipe wall
thickness" and/or "significant deformation." In contrast, Pitkin
concluded that of the 18 randomly selected pipes, 12 pipes that
were not located near water and/or sewer mains pipes did not
exhibit comparable damage. Pitkin recommended that plaintiff
replace all the service laterals in the Town and Village that
were adjacent to water and/or sewer utilities. Plaintiff
accepted the recommendation and the pipes have now been replaced.
In January 2014, plaintiff filed essentially identical
notices of claim against each defendant. By these notices, with
reference to Pitkin's review and the 2005 and 2011 explosions,
plaintiff advised that it was seeking to recover for property
damages resulting from, among other things, defendants'
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interference with plaintiff's lines and/or improper construction
or maintenance of their sewer and/or water mains. In June 2014,
defendants questioned plaintiff's representative at a hearing
held pursuant to General Municipal Law § 50-h. In July 2014,
plaintiff commenced this action seeking, among other things,
compensatory damages for repairing all one-inch and 1¼-inch steel
service laterals in the Town and Village and a permanent
injunction requiring defendants to prevent further damage to
plaintiff's service laterals. Defendants each moved to dismiss
the complaint. Plaintiff opposed the motions to dismiss and
cross-moved to amend the notices of claim to include all of the
addresses where it had replaced service laterals. Supreme Court
granted defendants' motions to dismiss and denied plaintiff's
cross motion. Plaintiff now appeals.
A party seeking to commence a tort action against a
municipal corporation must first serve a notice of claim that
states "the time when, the place where and the manner in which
the claims arose" (General Municipal Law § 50-e [2]). The
purpose of the notice is "[t]o enable authorities to investigate,
collect evidence and evaluate the merit of a claim" (Brown v City
of New York, 95 NY2d 389, 392 [2000]; see O'Brien v City of
Syracuse, 54 NY2d 353, 358 [1981]). The notice must
"sufficiently describe when and where a particular accident took
place, but does not have to be detailed with literal nicety or
exactness" (Gagnon v City of Saratoga Springs, 14 AD3d 845, 847
[2005] [internal quotation marks and citations omitted]).
Further, "[d]eficiencies in the notice, if any, may be cured by
testimony provided at a General Municipal Law § 50-h hearing"
(id.).
Here, plaintiff advised that its claim was that the Village
and Town "[n]egligent[ly] install[ed], design[ed], engineer[ed],
construct[ed], maintain[ed], servic[ed], operat[ed] and/or
repair[ed] . . . the water main, water lines, water manhole,
water structures, drainage systems or other pipes, utilities or
public works owned or controlled" by the Village and Town;
"[i]nterfer[ed] . . . deflect[ed] . . ., undermin[ed] . . .,
damag[ed] . . . and/or improper[ly] repair[ed] [plaintiff's] gas
utilities" throughout the Village and Town; and "[f]ail[ed] to
safeguard against" or to notify plaintiff of these damages.
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Purusant to the notice of claim, the affected water structures
and gas utilities were located "throughout [the Village and Town]
generally, including but not limited to the properties identified
[in the Pitkin report]." As to the County, plaintiff claimed
that it "[n]egligent[ly] install[ed], design[ed], engineer[ed],
construct[ed], maint[ained], service[d], operat[ed] and/or
repair[ed its] sewer main, sewer lines, sewer manhole, sewage
structures, drainage system or other pipes, utilities or public
works owned or controlled by [the County] . . .[, i]nterfer[ed]
with, deflect[ed] . . ., undermin[ed] . . ., damage[d] and/or
improper[ly] repair[ed] [plaintiff's] gas utilities" and that the
County "[f]ail[ed] to safeguard against" and notify plaintiff of
such damages. As with the Town and Village, the affected sewer
structures and gas utilities were located "throughout Horseheads,
New York generally, including but not limited to the properties
identified [in the Pitkin report]."
Following receipt of the notices of claim, defendants
demanded a hearing pursuant to General Muncipal Law § 50-h. The
Pitkin report was provided and made a part of the hearing record.
Documented therein were the three categories of damages
discovered – deformation of the service lateral, coating damage
to the service lateral and reduction of pipe wall thickness.
Each of the 39 service laterals exhibited one or more of these
damages and each was proximate to either a water main, sewer main
or both that had been installed beneath the gas laterals.
Plaintiff also produced its employee, Robert Letson, who was
present during the Pitkin excavation project. Letson testified
that he observed the majority of the 67 excavations and confirmed
that, during the excavation project, asserted third-party damage
was discovered at 39 of the selected locations. Letson was not
able to tell when the specified damage was done and was able to
assume only that, because the water and sewer lines went in after
the gas lateral lines, there was some third-party excavation done
after the gas laterals were installed. Letson further confirmed,
without knowledge of specifics, that based on state regulation,
plaintiff undertook to replace certain laterals that had been
installed before 1971. When asked what third-party activity
caused the damage to the laterals identified in the Pitkin
report, Letson testified that it could have been improper
backfilling, improper excavation, improper support or actual
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contact between a backhoe or shovel and the pipe.
Initially, we find that plaintiff's notices of claim, as
supplemented by the General Municipal Law § 50-h hearing and the
Pitkin report, were sufficient to permit the municipalities to
investigate the claims asserted with regard to the 39 service
laterals identified in the notices and the report. In our view,
however, the notices were not sufficient to permit inclusion of
the approximately 800 additional properties as alleged in the
complaint. Therefore, plaintiff's action must be limited to the
39 service laterals identified in the January 2014 notices of
claim (see O'Brien v City of Syracuse, 54 NY2d at 358).
To the extent that we have found that plaintiff's notices
of claim were sufficient, the further question is whether
plaintiff's action with regard to the 39 laterals was timely.
Pursuant to General Municipal Law § 50-i, plaintiff's action for
damages to real property had to be commenced within one year and
90 days after the occurrence of the event that is the basis for
the claims, not from the date the action accrued (see Klein v
City of Yonkers, 53 NY2d 1011, 1012-1013 [1981]; Serkil, L.L.C. v
City of Troy, 259 AD2d 920, 921-922 [1999], lv denied 93 NY2d 811
[1999]; Nebbia v County of Monroe, 92 AD2d 724, 725 [1983], lv
denied 59 NY2d 603 [1983]). Further, claims against a county for
"invasion of personal or property rights, of every name and
nature, and whether casual or continuing trespass or nuisance and
any other claim for damages arising at law or in equity" must be
commenced in accordance with General Municipal Law § 50-i (County
Law § 52).
Here, we agree with Supreme Court that defendants
established that the events forming the basis for plaintiff's
claims, the alleged interference with the gas laterals during the
installation of the sewer and water systems, occurred more than
one year and 90 days ago, and we reject plaintiff's claim that
defendants' conduct was continuing. Although, arguably, the
damage that resulted from defendants' interference continued to
exist, the interference was a singular event (see Matter of Witt
v Town of Amherst, 17 AD3d 1030, 1031 [2005]; Sniper v City of
Syracuse, 139 AD2d 93, 95 [1988]; Nebbia v County of Monroe, 92
AD2d at 725). Put differently, even assuming that defendants'
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negligent conduct occurred, it ceased once the water and sewer
main construction was completed. There was no continuing,
offensive act (see Town of Oyster Bay v Lizza Indus., Inc., 22
NY3d 1024, 1031-1032 [2013]; compare Bloomingdales, Inc. v New
York City Tr. Auth., 13 NY3d 61, 65-66 [2009]). Accordingly,
plaintiff's damage claims arising from defendants' allegedly
negligent construction occurring in the 1960s are time-barred
(see Harrington v County of Suffolk, 102 AD3d 923, 924 [2013];
Liston v Town of Newburgh, 90 AD3d 861, 862 [2011]).
On the other hand, we find that plaintiff's claims that
defendants failed to maintain the sewer and water mains are
timely. Generally, each defendant has a continuing duty to
maintain its systems (see De Witt Props. v City of New York, 44
NY2d 417, 423 [1978]; Brandenburg v County of Rockland Sewer
Dist. #1, State of N.Y., 127 AD3d 681, 682 [2015]). To the
extent that plaintiff claims that its damages were caused by
defendants' failure to maintain its sewer and water mains, the
breach of this ongoing duty is the "event" that forms the basis
for the claim (see Kiernan v Thompson, 73 NY2d 840, 841 [1988]).
Accordingly, Supreme Court should not have dismissed this part of
the first cause of action as untimely.
By its second cause of action, plaintiff alleges that
defendants' "voluntary acts have and continue to encroach on,
impede and trespass upon [its] rights-of-ways . . . and on its
gas facilities." "The essence of trespass is injury to the right
of possession, and such trespass may occur under the surface of
the ground. A person need not have title to the property but
must simply have sufficient property rights to maintain an action
for trespass" (Bloomingdales, Inc. v New York City Tr. Auth., 13
NY3d at 66 [citation omitted]). Here, at least arguably,
plaintiff identified instances of continuing interference with
its utilities, to wit: a log or pole fastened to a service
lateral and the presence of electrical tape. In Town of Oyster
Bay v Lizza Indus., Inc. (supra), relied upon by Supreme Court,
the rejected trespass claim was based on continuing defects, not
continuing interference or encroachment. Here, in contrast,
plaintiff has alleged that defendants placed these materials on
the service laterals and that the continuing presence of same
caused some damage. To this limited extent, the claim for
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continuing trespass is timely and should not have been dismissed
(see Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d at
66; 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48,
52-53 [1964]). For the same reasons, we find that plaintiff's
causes of action for public and private nuisance are timely (see
Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d at 66).
Supreme Court properly dismissed plaintiff's constitutional
takings and inverse condemnation claims. "On a motion to dismiss
for failure to state a cause of action, courts assume the facts
alleged to be true, view them liberally and in the light most
favorable to the plaintiff, and assess whether the allegations
set forth all of the elements of any cognizable cause of action"
(Torrance Constr., Inc. v Jaques, 127 AD3d 1261, 1263 [2015]; see
McNeary v Niagara Mohawk Power Corp., 286 AD2d 522, 523-524
[2001]). Relevant here, the Fifth Amendment's Takings Clause,
applied to New York through the Fourteenth Amendment, "prohibits
the government from taking private property for public use
without just compensation" and "even a minimal 'permanent
physical occupation of real property'" may be actionable
(Palazzolo v Rhode Island, 533 US 606, 617 [2001], quoting
Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 427
[1982]; see US Const, 5th, 14th Amends). A cause of action for
inverse condemnation may be stated where it is "alleged that a
defendant 'intruded onto plaintiff's property and interfered with
[its] property rights to such a degree that the conduct amounts
to a constitutional taking'" (McNeary v Niagara Mohawk Power
Corp., 286 AD2d at 524, quoting O'Brien v City of Syracuse, 54
NY2d at 357 [brackets omitted]). Inverse condemnation is a
basis to obtain damages where a municipality has permanently
taken property without exercising its eminent domain authority
and compensating the property owner (see Corsello v Verizon N.Y.,
Inc., 18 NY3d 777, 786 [2012]). As such, there must be
"permanent physical occupation of [the] plaintiff's property
amounting to the exercise of dominion and control thereof"
(McNeary v Niagra Mohawk Power Corp., 286 AD2d at 524 [internal
quotation mark, brackets and citation omitted]; see Greece Ridge,
LLC v State of New York, 130 AD3d 1559, 1560-1561 [2015]). Here,
plaintiff alleges that as a result of defendants' interference,
it was "deprived of all economic value and benefit of [the
service laterals]." As set forth above, however, even if we were
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to accept that defendants' conduct interfered with the service
laterals, based on the Pitkin report and the testimony at the
General Municipal Law § 50-h hearing, plaintiff has no
evidentiary basis to claim that such interference was either
permanent or of the requisite magnitude (see id.).
Finally, Supreme Court properly dismissed plaintiff's cause
of action seeking permanent injunctive relief. A valid claim for
a permanent injunction may exist where there is both irreparable
harm and no adequate legal remedy (see McDermott v City of
Albany, 309 AD2d 1004, 1005 [2003], lv denied 1 NY3d 509 [2004]).
Here, we discern no basis for prospective relief inasmuch as
plaintiff has repaired the damaged service laterals, and this
action is supported by the basic premise that defendants had and
have no authority to interfere with plaintiff's facilities.
Under the circumstances, we agree that plaintiff has an adequate
remedy and is not entitled to injunctive relief.
We have considered plaintiff's remaining claims and find
them to be either without merit or not preserved for our review.
Peters, P.J., Garry, Rose and Clark, JJ., concur.
ORDERED that the amended order is modified, on the law,
without costs, by reversing so much thereof as granted
defendants' motions to dismiss the complaint; motions denied as
to the third and fourth causes of action and partially denied as
to the first and second causes of action as more specifically set
forth in this Court's decision; and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court