| Sutton Investing Corp. v City of Syracuse |
| 2008 NY Slip Op 00881 [48 AD3d 1141] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| Sutton Investing Corporation, Appellant-Respondent, v City ofSyracuse, Respondent-Appellant. |
—[*1] Rory A. McMahon, Corporation Counsel, Syracuse (Nancy J. Larson of counsel), fordefendant-respondent-appellant.
Appeal and cross appeal from an order of the Supreme Court, Onondaga County (Deborah H.Karalunas, J.), entered October 4, 2006. The order granted in part and denied in part defendant'smotion for summary judgment.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting that part of the motion for summary judgment dismissing the first cause of action in itsentirety and dismissing the first cause of action in its entirety and by denying that part of themotion for summary judgment dismissing certain claims for money damages in the second causeof action except insofar as those claims concern the western portion of the property in questionand reinstating those claims for money damages in the second cause of action to that extent andas modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action in May 2002 alleging that defendant, City ofSyracuse (City), breached the parties' oral agreement with respect to the use by the City ofplaintiff's property to store solid waste. Pursuant to that agreement, the City was entitled to useplaintiff's property to mulch and redistribute organic yard waste collected from residents of theCity but, according to plaintiff, the City stored other types of waste and refused to comply withplaintiff's demand for an increase in the City's monthly rental payments. The amended complaintasserts causes of action for continuing waste, continuing nuisance and continuing trespass. Wenote at the outset that, as Supreme Court noted in its bench decision, plaintiff did not contest theCity's assertion that plaintiff had withdrawn any claim with respect to the western portion of theproperty, and the court thus granted that part of the City's motion for summary judgmentdismissing the amended complaint with respect to that portion of the property. Plaintiff on appealdoes not address the propriety of that part of the order, and our decision herein therefore does notencompass the western portion of the property.
We conclude that the court properly granted that part of the City's motion for summaryjudgment dismissing the third cause of action, for continuing trespass, for the reasons stated by[*2]the court in its bench decision. We conclude, however, thatthe court erred in denying that part of the City's motion for summary judgment dismissing thefirst cause of action, for continuing waste, and further erred in granting that part of the motion forsummary judgment dismissing the claims for money damages for "lost rent," lost opportunity tosell, and costs incurred by plaintiff "to clean up the property" in the second cause of action, forcontinuing nuisance. We therefore modify the order accordingly.With respect to the first cause of action, for continuing waste, we note that waste to propertyhas been defined as "any 'destruction, misuse, alteration, or neglect of premises by one lawfullyin possession thereof to the prejudice of the . . . interest therein of another' "(Gilman v Abagnale, 235 AD2d 989, 991 [1997]; see generally Rumiche Corp. vEisenreich, 40 NY2d 174, 179-180 [1976], rearg denied 40 NY2d 918 [1976]). Therecord establishes that plaintiff locked the City out of the premises during the month of October2000, and thus the City's possession of the premises ceased at that time. We therefore agree withthe City that the first cause of action is time-barred pursuant to General Municipal Law §50-i (1) (c) inasmuch as any alleged acts of waste committed by the City occurred prior to thelockout date and are outside the limitations period of one year and 90 days. Plaintiff contendsthat the first cause of action is not time-barred because the City's acts of waste were continuing innature, based on the existence of the solid waste on the premises after October 2000. We rejectthat contention. Although the City's alleged wasteful acts may have created damages that werecontinuing, the acts themselves were not continuing (see Francis v Posa, 21 AD3d 1335 [2005]; Matter of Witt vTown of Amherst [appeal No. 2], 17 AD3d 1030 [2005]; Sniper v City of Syracuse,139 AD2d 93, 95 [1988]).
We conclude, however, that the second cause of action, in which plaintiff alleges that theongoing existence of the solid waste on its property constitutes a continuing nuisance, is nottime-barred pursuant to General Municipal Law § 50-i (1) (c) (see Stanton v Town ofSouthold, 266 AD2d 277, 278-279 [1999]; Sova v Glasier, 192 AD2d 1069, 1070[1993]), and thus the court erred in granting that part of the City's motion concerning damagesfor the continuing nuisance cause of action. We note, however, that the amount of damages thatplaintiff may recover is limited by the applicable period of limitations (see Sova, 192AD2d at 1070).
Finally, we reject the contention of the City that the action is barred by plaintiff's failure tofile a timely notice of claim as required by section 8-115 (2) of the Syracuse City Charter. Thatsection requires the filing of a notice of claim "in compliance with Section 50-e of the GeneralMunicipal Law" (id.), and here plaintiff was in compliance with section 50-e inasmuch asthe court granted its application for leave to serve a late notice of claim pursuant to GeneralMunicipal Law § 50-e (5). Present—Scudder, P.J., Gorski, Lunn, Fahey andPeradotto, JJ.