| Rimany v Town of Dover |
| 2010 NY Slip Op 03298 [72 AD3d 918] |
| April 20, 2010 |
| Appellate Division, Second Department |
| Douglas Rimany et al., Appellants, v Town of Dover,Respondent, et al., Defendant. |
—[*1] Drake, Loeb, Heller, Kennedy, Gogerty, Gaba & Rodd, PLLC, New Windsor, N.Y. (AdamL. Rodd and Stephen J. Gaba of counsel), for respondent. Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, Albany, N.Y. (Michael J. Mooreand Kristin Laviolette Pratt of counsel), for defendant Powell Road Mobile Home Park,Inc.
In an action, inter alia, to recover damages for injury to property, the plaintiffs appeal (1), aslimited by their brief, from so much of an order of the Supreme Court, Dutchess County(Pagones, J.), dated June 23, 2008, as granted the converted branch of the motion of thedefendant Town of Dover which was for summary judgment dismissing the complaint insofar asasserted against it on the ground that it is barred by the statute of limitations, (2) from ajudgment of the same court entered July 14, 2008, which, upon the order, is in favor of thedefendant Town of Dover and against them dismissing, with prejudice, the complaint insofar asasserted against that defendant, and (3), as limited by their brief, from so much of an order of thesame court dated September 30, 2008, as, upon renewal, adhered to so much of the order datedJune 23, 2008, as granted the converted branch of the motion of the Town of Dover which wasfor summary judgment dismissing the complaint insofar as asserted against it on the ground thatit is barred by the statute of limitations, and further determined that the complaint also should bedismissed insofar as asserted against the Town for failure to state a cause of action.
Ordered the appeal from the order dated June 23, 2008, is dismissed; and it is further,
Ordered that the judgment is affirmed, and the order dated September 30, 2008, is vacated;and it is further,
Ordered that the appeal from the order dated September 30, 2008, is dismissed [*2]as academic in light of our determination on the appeal from thejudgment; and it is further,
Ordered that one bill of costs is awarded to the defendant Town of Dover payable by therespondent.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order dated June 23, 2008, arebrought up for review and have been considered on the appeal from the judgment (seeCPLR 5501 [a] [1]).
The plaintiffs are the owners of certain real property located in the defendant Town ofDover. The plaintiffs purchased the property in 2004. The property, which is improved with asingle-family house, is located adjacent to the "Ten Mile River." The defendant Powell RoadMobile Home Park, Inc. (hereinafter Powell), is the owner of a mobile home park situated onreal property located on the opposite side of the river. In or around 1999, pursuant to permitsissued by the Town, Powell constructed a flood wall on its property adjacent to the river.
On November 7, 2007, the plaintiffs commenced the instant action against the Town andPowell, inter alia, to recover damages for injury to property. In their complaint, the plaintiffsalleged that, as a result of the flood wall, beginning in January 2005, and on several occasionsthereafter, their property sustained extensive and repeated flooding from the waters of the river,causing substantial damage to the property.
In the first and second causes of action asserted against both of the defendants pursuant to 42USC §§ 1983 and 1988, respectively, inter alia, the plaintiffs sought to recoverdamages for the taking of their property without just compensation in violation of the Fifth andFourteenth Amendments to the United States Constitution, and attorneys' fees. In their thirdcause of action, similarly asserted against both of the defendants, the plaintiffs sought to recoverdamages for the violation of New York State Navigation Law § 31, which requires apermit before excavating or placing fill in the navigable waters of the State. In their fourth causeof action, also asserted against both of the defendants, the plaintiffs sought to recover punitivedamages.
After joinder of issue, the Town moved to dismiss the complaint insofar as asserted against iton the grounds that, inter alia, it is barred by the statute of limitations and fails to state a cause ofaction. The Supreme Court, upon converting that branch of the Town's motion which was todismiss the complaint insofar as asserted against it on the ground that they are barred by thestatute of limitations into one for summary judgment dismissing the complaint insofar as assertedagainst it on that ground, granted the converted branch of the Town's motion. Subsequently, thecourt entered a judgment in favor of the Town and against the plaintiffs dismissing, withprejudice, the complaint insofar as asserted against that defendant.
Thereafter, the plaintiffs moved, inter alia, in effect, for leave to renew their opposition tothe converted branch of the Town's prior motion which was for summary judgment dismissingthe complaint insofar as asserted against it on the ground that they are barred by the statute oflimitations. The Supreme Court, upon granting leave to renew, adhered to that part of its priordetermination, and further determined that the complaint should also be dismissed insofar asasserted against the Town for failure to state a cause of action.
Turning first to the plaintiffs' first cause of action pursuant to 42 USC § 1983, andtheir concomitant second cause of action pursuant to 42 USC § 1988, the statute oflimitations for a cause of action pursuant to 42 USC § 1983 is three years (see Owensv Okure, 488 US 235, 251 n 13 [1989]; Dinerman v City of N.Y. Admin. for Children's Servs., 50 AD3d1087, 1088 [2008]; D & S Realty Dev. v Town of Huntington, 295 AD2d 306, 307[2002]). A cause of action pursuant to 42 USC § 1983 "accrues 'when the plaintiff knowsor has reason to know of the injury which is the basis of his [or her] action' " (Palmer v State of New York, 57 AD3d364, 364 [2008], quoting Pearl v City of Long Beach, 296 F3d 76, 80 [2002],cert denied 538 US 922 [2003]).[*3]
Here, the Supreme Court found that the plaintiffs knew,or with reasonable diligence should have known, when they purchased their property in 2004, ofthe injury that is the basis of their 42 USC § 1983 claim. However, as alleged in theircomplaint, the injury that is the basis of the plaintiffs' 42 USC § 1983 claim is theextensive and repeated flooding of their property commencing in or around January 2005that allegedly has amounted to a taking by the Town of their property without just compensationin violation of the Fifth and Fourteenth Amendments of the United States Constitution.
Under such circumstances, the earliest possible time that the plaintiffs could haveknown of the injury that is the basis of their 42 USC § 1983 claim was January 2005. Theplaintiffs commenced this action on November 7, 2007, well within the three-year limitationsperiod. Thus, the Supreme Court erred in determining that the plaintiffs' 42 USC § 1983claim, and their concomitant 42 USC § 1988 claim, were subject to dismissal insofar asasserted against the Town on the ground that those claims are time-barred.
Nonetheless, the plaintiffs' 42 USC § 1983 claim and their concomitant 42 USC§ 1988 claim, were properly dismissed with prejudice insofar as asserted against theTown, albeit for a different reason (see Parochial Bus Sys. v Board of Educ. of City ofN.Y., 60 NY2d 539, 545-546 [1983]; see generally Butler v Catinella, 58 AD3d 145, 151 [2008]). 42USC § 1983 forbids "any person from depriving another of rights secured by theConstitution of the United States" (Bletter v Incorporated Vil. of Westhampton Beach,88 F Supp 2d 21, 25 [2000], citing 42 USC § 1983). The statute "is not itself a source ofsubstantive rights, but a method for vindicating federal rights elsewhere conferred" (Baker vMcCollan, 443 US 137, 145 n 3 [1979]).
Here, the plaintiffs' 42 USC § 1983 claim insofar as asserted against the Town ispredicated on allegations that the actions of the Town in issuing permits to Powell to constructthe flood wall, which in fact was constructed, and which allegedly resulted in extensive andrepeated flooding of their property, constituted a taking by the Town of their property withoutjust compensation in violation of the Fifth and Fourteenth Amendments to the United StatesConstitution. However, while the plaintiffs correctly observe that a Takings Clause claim may bemade out not only when the government intends to take private property but also whenthere is a permanent and substantial invasion of private property as the direct, natural, orprobable consequence of intentional and authorized government actions (see Hansen vUnited States, 65 Fed Cl 76, 103 [2005]), under either circumstance, the "invasion mustappropriate a benefit to the government at the expense of the property owner" in order to makeout a Takings Clause claim (Hansen v United States, 65 Fed Cl at 97 [internal quotationmarks omitted]; see US Const Amend V).
In that regard, the plaintiffs herein failed to allege in their complaint that the Town took theirproperty for public use or benefitted from the alleged invasion of their property (see USConst Amend V), and, in fact, the plaintiffs specifically alleged in their complaint that the floodwall was constructed to protect the Powell Park Mobile Home Park, private property owned byPowell. Under such circumstances, the complaint fails to state a cause of action against the Townpursuant to 42 USC § 1983, inter alia, to recover damages for the unconstitutional takingof property, and thus the plaintiffs' concomitant 42 USC § 1988 claim against the Townalso must fail.
Moreover, in connection with their motion to dismiss, the Town submitted an affidavit fromthe Town Code Enforcement Officer in which he averred that Powell sought to construct theflood wall to protect the residents of its mobile home park, that the Town does not own thesubject flood wall, and that the flood wall is not located on Town property. In opposition to theTown's motion, the plaintiffs, in effect, conceded as much. Under such circumstances, not onlydoes the complaint fail to state a cause of action against the Town pursuant to 42 USC §1983 for the unconstitutional taking of property, but in fact, the plaintiffs do not have such acause of action against the Town, nor a concomitant cause of action against the Town pursuantto 42 USC § 1988 (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977];Doria v Masucci, 230 AD2d 764, 765 [1996]).
The plaintiffs' third cause of action pursuant to Navigation Law § 31 also was properlydismissed with prejudice insofar as asserted against the Town, albeit again for a different [*4]reason. Navigation Law § 31 provides that "[n]o person orlocal public corporation shall excavate or place fill in the navigable waters of the state withoutfirst obtaining a permit therefor in conformity with the provisions of section 15-0505 of theenvironmental conservation law" (see ECL 15-0505).
Here, the plaintiffs alleged in their third cause of action pursuant to Navigation Law §31, insofar as asserted against the Town, that it was required in accordance with that statute toobtain a permit from the DEC before constructing the flood wall but failed to do so, and that theTown's failure in that regard was the proximate cause of the damage to the plaintiffs' property.However, in the Town Code Enforcement Officer's affidavit submitted in connection with theTown's motion to dismiss, the Town Code Enforcement Officer averred that the Town itself wasnot involved with the physical construction of the flood wall. Again, in opposition to the Town'smotion, the plaintiffs, in effect, conceded as much. Under such circumstances, assuming, withoutdeciding, that a private cause of action for damages may be implied under Navigation Law§ 31 (see Uhr v East Greenbush Cent. School Dist., 94 NY2d 32, 38 [1999]), sincethe Town itself did not excavate or place fill in the navigable waters of the state without firstobtaining the requisite permit, the plaintiffs do not have a cause of action against theTown to recover damages under Navigation Law § 31 (see Guggenheimer vGinzburg, 43 NY2d at 275; Doria v Masucci, 230 AD2d at 765).
The plaintiffs' fourth cause of action to recover punitive damages was properly dismissedwith prejudice insofar as asserted against the Town, albeit again for a different reason.Specifically, the plaintiffs' fourth cause of action to recover punitive damages was properlydismissed because "a demand for punitive damages may not constitute a separate cause of actionfor pleading purposes" (Rosenblum vFrankl, 57 AD3d 960, 961 [2008]).
Based on the foregoing, all of the plaintiffs' claims against the Town were properlydismissed with prejudice. Thus, the judgment must be affirmed. Rivera, J.P., Florio, Miller andEng, JJ., concur.