| Nandlal v City of New York |
| 2009 NY Slip Op 07236 [66 AD3d 653] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Durlarie Nandlal et al., Respondents, v City of New Yorket al., Appellants, et al., Defendant. |
—[*1] Sullivan & Gardner, P.C., New York, N.Y. (Steven R. Montgomery of counsel), forrespondents.
In an action to recover damages for injury to property, the defendants City of New York,New York City Department of Environmental Protection, and Carp Construction Corp. appealfrom an order of the Supreme Court, Queens County (Flug, J.), entered August 28, 2008, whichdenied their motion for summary judgment dismissing the complaint insofar as asserted againstthem.
Ordered that the order is affirmed, with costs.
The plaintiffs, who live in a two-story house in Bayside, claim that excessive vibrations andother activities that occurred during the construction of a sewer in their neighborhood causedsubstantial damage to their house. The plaintiffs commenced the instant action against the Cityof New York (hereinafter the City), New York City Department of Environmental Protection(hereinafter the DEP), Carp Construction Corp. (hereinafter Carp) (hereinafter collectively theappellants) and URS Corp. to recover damages for injury to property.
The Supreme Court properly denied that branch of the appellants' motion which waspursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, the second and third causes of actioninsofar as asserted against Carp. The action was timely commenced within the three-year statuteof limitations set forth in CPLR 214 (4), which governs actions to recover damages for injury toproperty (see Ito v Dryvit Sys., Inc.,16 AD3d 554, 555 [2005]).
Similarly, the Supreme Court properly denied that branch of the appellants' motion whichwas to dismiss the second and third causes of action insofar as asserted against the City and theDEP. A notice of claim was timely served upon the City, and the action was timely commencedwithin the one-year-and-90-day statute of limitations set forth in General Municipal Law §50-i (1). Contrary to the appellants' contention, the notice of claim sufficiently described thenature of the plaintiffs' claim, as well as the time, place, and manner in which the claim arose(see General Municipal Law § 50-e [2]; Brown v City of New York, 95NY2d 389, 393 [2000]; O'Brien v City of Syracuse, 54 NY2d 353, 358 [1981]; Kim L. v Port Jervis City [*2]School Dist., 40 AD3d 1042, 1044 [2007];DeLeonibus v Scognamillo, 183 AD2d 697, 698 [1992]).
In addition, the Supreme Court properly denied that branch of the appellants' motion whichwas for summary judgment dismissing the complaint insofar as asserted against them, as theappellants failed to establish, prima facie, that they were entitled to judgment as a matter of law(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The opinionsset forth in the affidavit of the appellants' expert were based, in part, on alleged facts that werecontradicted by documentary evidence and deposition testimony contained in the record (cf.Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984]; Cassano v Hagstrom,5 NY2d 643, 646 [1959]; Simo vNew York City Tr. Auth., 13 AD3d 609, 611 [2004]). Furthermore, contrary to theappellants' contention, the City and the DEP failed to establish that they were immune fromliability as governmental actors, since, under the circumstances here, they were performing aproprietary function as opposed to a governmental function in constructing the sewer (seeJohnston v District of Columbia, 118 US 19, 20-21 [1886]; Seifert v City of Brooklyn,101 NY 136, 142-146 [1886]; Tappan Wire & Cable, Inc. v County of Rockland, 7 AD3d 781,782-783 [2004]; Biernacki v Village of Ravena, 245 AD2d 656, 657 [1997]; Town ofYorktown v Vanguard Tours, 83 AD2d 866 [1981]). Fisher, J.P., Covello, Angiolillo andRoman, JJ., concur.