Opinion
CA 05-00232.
June 10, 2005.
Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), entered December 10, 2004. The order granted defendant's motion to dismiss the complaint.
WOLFORD LECLAIR LLP, ROCHESTER (LESLIE E. SWIFT OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LINDA S. KINGSLEY, CORPORATION COUNSEL, ROCHESTER (JOHN M. CAMPOLIETO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: Pigott, Jr., P.J., Green, Gorski, Pine and Lawton, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiff commenced this action to recover for damage to its properties allegedly caused by the collapse of a sewer line adjacent to those properties. Supreme Court erred in granting defendant's motion to dismiss the complaint as time-barred ( see CPLR 3211 [a] [5]). Accepting the allegations in the complaint as true and according them the benefit of every favorable inference, as we must ( see Leon v. Martinez, 84 NY2d 83, 87-88), we conclude that the action was timely commenced less than one year and 90 days after the "happening of the event upon which the claim is based," i.e., the collapse of the sewer line on June 1, 2003 (General Municipal Law § 50-i [c]; cf. Nebbia v. County of Monroe, 92 AD2d 724, 725, lv denied 59 NY2d 603).