Liston
v.
Town of Newburgh

Supreme Court, Appellate Division, Second Department, New York.Dec 20, 2011
934 N.Y.S.2d 712 (N.Y. App. Div. 2011)
934 N.Y.S.2d 71290 A.D.3d 861A.D.3d2011 N.Y. Slip Op. 9282

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2011-12-20

Andrew LISTON, et al., appellants, v. TOWN OF NEWBURGH, respondent.

Sussman & Watkins, Goshen, N.Y. (Michael H. Sussman of counsel), for appellants. Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC, New Windsor, N.Y. (Stephen J. Gaba and Ralph L. Puglielle, Jr., of counsel), for respondent.


Sussman & Watkins, Goshen, N.Y. (Michael H. Sussman of counsel), for appellants. Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC, New Windsor, N.Y. (Stephen J. Gaba and Ralph L. Puglielle, Jr., of counsel), for respondent.

In an action to recover damages for negligence, the plaintiffs appeal from an order of the Supreme Court, Orange County (McGuirk, J.), dated January 7, 2011, which granted the defendant's motion to dismiss the complaint as time-barred.

ORDERED that the order is affirmed, with costs.

General Municipal Law § 50–i(1) states, in part, that “[n]o action ... shall be prosecuted ... against a ... town ... for ... damage to real or personal property alleged to have been sustained by reason of the negligence ... of such ... town ... unless ... the action ... shall be commenced within one year and ninety days after the happening of the event upon which the claim is based.” Here, the plaintiffs alleged, inter alia, that the Town of Newburgh's negligent installation of a storm drainage system in May 2007 caused or exacerbated flooding to their property on March 5, 2008. Significantly, however, the plaintiffs make no allegation of negligent maintenance.

Under these circumstances, “the happening of the event upon which the claim [was] based” (General Municipal Law § 50–i[1] ) was the May 2007 storm drainage installation ( see Klein v. City of Yonkers, 53 N.Y.2d 1011, 1014, 442 N.Y.S.2d 477, 425 N.E.2d 865; Johnson v. Marianetti, 202 A.D.2d 970, 970–971, 609 N.Y.S.2d 494; Scarzfava v. City of Newburgh, 255 A.D.2d 436, 680 N.Y.S.2d 595; Pleasant Ridge Townhouses Homeowners' Assn. v. T & D Constr. Corp., 181 A.D.2d 871, 872, 581 N.Y.S.2d 857; Nebbia v. County of Monroe, 92 A.D.2d 724, 461 N.Y.S.2d 127). Accordingly, as measured from the date of this “occurrence,” the plaintiffs' commencement of their action in May 2009 was untimely ( see Regatta Condominium Assn. v. Village of Mamaroneck,303 A.D.2d 737, 738, 758 N.Y.S.2d 348).

The plaintiffs' remaining contentions are without merit.

Accordingly, the Supreme Court properly granted the Town's motion to dismiss the complaint as time-barred.

RIVERA, J.P., BALKIN, ENG and AUSTIN, JJ., concur.