| Heritage Hills Socy., Ltd. v Heritage Dev. Group, Inc. |
| 2008 NY Slip Op 08454 [56 AD3d 426] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Heritage Hills Society, Ltd., et al., Appellants, v HeritageDevelopment Group, Inc., et al., Respondents. |
—[*1] Keane & Beane, P.C., White Plains, N.Y. (Richard L. O'Rourke, Stephanie L. Burns, andJudson K.Siebert of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, negligence, and nuisance,the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court,Westchester County (Bellantoni, J.), entered April 5, 2007, as granted those branches of thedefendants' motion which were for summary judgment dismissing as time-barred, in effect, thoseportions of the first, fifth, sixth, and seventh causes of action that accrued prior to October 11,1999, and for a protective order pursuant to CPLR 3103 limiting the scope of the plaintiffs'discovery demands to the period from October 11, 1999, to the present.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs commenced this action on October 11, 2005. The gravamen of the complaint isthat the defendants constructed sub-par lighting for Heritage Hills of Westchester, a residentialcommunity located in the Town of Somers, Westchester County, and thereafter failed to properlymaintain and repair that lighting.
The defendants demonstrated their prima facie entitlement to judgment as a matter of lawwith respect to those branches of their motion which were for summary judgment dismissing astime-barred, in effect, those portions of the first, fifth, sixth, and seventh causes of action thataccrued prior to October 11, 1999, the date that construction was completed. These causes ofaction, based on faulty construction or design, whether characterized as negligence, malpractice,or breach [*2]of contract, accrued upon the date of completion ofconstruction, not when the injury occurred or the defective condition was discovered (seeCity School Dist. of City of Newburgh v Stubbins & Assoc., 85 NY2d 535, 538 [1995];Cabrini Med. Ctr. v Desina, 64 NY2d 1059, 1061 [1985]; Manhattanville Coll. v James John RomeoConsulting Engr., P.C., 5 AD3d 637, 640 [2004]; Regatta Condominium Assn. vVillage of Mamaroneck, 303 AD2d 737, 738 [2003]).
In opposition, the plaintiffs failed to raise a triable issue of fact. When the nonmoving partyopposing a motion for summary judgment argues that additional discovery is needed, forexample, "to ascertain the existence of contracts between the parties," such an argument isunavailing where the nonmoving party has failed to "produce some evidence indicating thatfurther discovery will yield material and relevant evidence" (Fleischman v Peacock Water Co., Inc., 51 AD3d 1203, 1205[2008] [internal quotation marks omitted]). Where, as here, the nonmoving parties "hadsufficient time to locate documents that would presumably be in their own possession," an awardof summary judgment dismissing the relevant causes of action is appropriate (Fleischman v Peacock Water Co., Inc.,51 AD3d 1203, 1205 [2008]).
The Supreme Court properly granted that branch of the defendants' motion which was for aprotective order pursuant to CPLR 3103 limiting the scope of the plaintiffs' discovery demands tothe period from October 11, 1999 to the present. Given the overly broad and burdensome natureof the various discovery demands which the plaintiffs seek to reinstate on appeal, the courtproperly limited discovery (see Birsner v Town of Islip, 250 AD2d 795, 796 [1998];Harris v City of New York, 211 AD2d 663, 664-665 [1995]).
The plaintiffs' remaining contentions are without merit. Rivera, J.P., Lifson, Miller and Eng,JJ., concur.