(concurring). These are tort actions—specifically, lawsuits based on damage to plaintiffs’ property by allegedly negligent construction—and are barred by the statute of limitations applicable to such cases, for the reasons explained in the last two paragraphs of the majority’s memorandum. The rest of the memorandum, which treats these cases as arising out of construction contracts and governed by the rule of City School Dist. of City of Newburgh v Stubbins & Assoc. (85 NY2d 535 [1995]), is a misapplication of the Newburgh rule.
Newburgh was an action by an owner against a builder for the defective construction of a school library. We applied in that case the previously-established rule that “the accrual date for Statute of Limitations purposes is completion of performance” (id. at 538). The plaintiff, the school district that owned the library, argued that this rule was inapplicable because the school district had no contract with the builder. The contract had been entered into by the school district’s predecessor as owner of the building, the Urban Development Corporation. We rejected the school district’s argument, saying:
*1033“Plaintiff . . . was not a stranger to the contract. UDC undertook construction of the library on behalf of plaintiff, and plaintiff was the intended beneficiary of the contract. That fact, and the intended purpose of the building, was known to all parties at the time the contracts were negotiated. Plaintiff reviewed and approved the architectural plans and specifications. It retained control of the budget and change orders during construction. Plaintiff also had a representative at the construction site on a daily basis. Such a relationship—even pleaded by plaintiff in support of its claim of negligent design and construction—was the ‘functional equivalent’ of privity” (id. at 538-539).
The differences between this case and Newburgh are glaring. Plaintiffs here never owned the sewers and the Counties were not building them on plaintiffs’ behalf. So far as the record shows, plaintiffs had no involvement at all with their construction—much less a representative at the construction site. The majority concludes that plaintiffs here, like the plaintiff in New-burgh, are not strangers to the contracts, but that is true only in the most attenuated sense. The contracts between the Counties and the contractors are not in the record, but the only clause that anyone claims has anything to do with plaintiffs is the so-called “protection clause,” quoted in an affidavit submitted to Supreme Court. It says:
“The Contractor shall conduct his work so as to interfere as little as possible with private business and public travel, and shall protect from damage all buildings or other public or private structures, lawns, terraces, trees, curbs, gutters, flagging, crosswalks, water pipes, hydrants, electric lights, traffic control devices, telephone poles, water stop cocks, manholes, has [sic] pipes, conduits, and other underground appurtenances on the line of the work, and adjacent thereto, and at his own cost, unless otherwise determined by the Engineer, repair or replace immediately to the satisfaction of the respective owners and the Engineer, any of the aforementioned items which may become damaged or displaced at ant [sic] time during the progress of the work.”
This clause generally protects nonparties to the contract, including plaintiffs, from damage to their “buildings or other . . . structures ... on the line of the work, and adjacent *1034thereto.” It is true that plaintiffs, like most or all of the property owners in the area, were third-party beneficiaries of the contract by virtue of the protection clause, but that is irrelevant, for no one has ever claimed the clause was violated. Plaintiffs are not suing because any of their structures were damaged in the course of the work. Rather, they allege that defendants were negligent in failing to backfill sewer trenches properly and that therefore plaintiffs’ roadways, lacking sufficient support, were caused to subside and their curbs, gutters and sidewalks to settle and crack. Plaintiffs could bring these identical cases if the protection clause did not exist. Thus the cases do not arise, as Newburgh did, out of a relationship between plaintiffs and defendants akin to contractual privity.
Because the contracts have nothing to do with this case, the governing accrual rule is the usual one in tort cases: the cause of action accrued when injury was inflicted (Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 300 [1936]). That occurred when defendants’ alleged negligence caused plaintiffs’ roadways to be without sufficient support (see Macrose Realty Corp. v City of New York, 49 AD2d 847 [1st Dept 1975]). It does not matter, under Schmidt, that plaintiffs did not know of the injury at the time, or that consequential damages resulted from the injury years later. Because, as the majority correctly says, there was no “continuing public nuisance” or other continuing tort in this case, the actions are time-barred.
Thus, the majority’s error in applying a construction-contract, rather than a tort, analysis in this case does not alter the result. It may alter the results in future cases, however, and, perhaps ironically, may be a boon to future plaintiffs. The majority seems to hold that, if a tort plaintiff happens to be a potential third-party beneficiary under the protection clause of a construction contract, the tort statute of limitations does not begin to run until construction is complete—a time that will usually be later, and sometimes many years later, than the time when injury is inflicted. Thus the result of today’s decision may be to permit the litigation of many stale claims against allegedly negligent contractors.
Judges Graffeo, Read, Pigott, Rivera and Abdus-Salaam concur; Judge Smith concurs in result in an opinion in which Chief Judge Lippman concurs.In each case: Order affirmed, with costs, in a memorandum.