| Town of Islip v H.T. Schneider Assoc. |
| 2010 NY Slip Op 04366 [73 AD3d 1029] |
| May 18, 2010 |
| Appellate Division, Second Department |
| Town of Islip, Respondent, v H.T. Schneider Associates etal., Appellants. |
—[*1] Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Michael F. Ingham of counsel), forrespondent.
In an action to recover damages for breach of contract, negligence, and continuing nuisance,the defendants appeal, as limited by their brief, from so much an order of the Supreme Court,Suffolk County (R. Doyle, J.), dated October 7, 2008, as denied that branch of their motionwhich was for summary judgment dismissing, as time-barred, the third cause of action to recoverdamages for a continuing nuisance.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendants' motion which was for summary judgment dismissing the third cause ofaction to recover damages for a continuing nuisance as time-barred is granted.
In this action, the plaintiff, Town of Islip, alleged that the defendant construction companiesentered into a contract with the County of Suffolk to construct a sewer system and relatedimprovements, of which it was a third-party beneficiary. The plaintiff claimed that, during thecourse of constructing the sewers, the defendants improperly backfilled sewer trenches and, indoing so, failed to provide adequate support for roadways and other surface structures. Theplaintiff further claimed that, as a result, it incurred costs in repairing those roadways andstructures. The plaintiff asserted three causes of action against the defendants to recover damagesfor breach of contract, negligence, and continuing nuisance. The Supreme Court granted thosebranches of the defendants' motion which were for summary judgment dismissing the causes ofaction sounding in breach of contract and negligence on the ground that those causes of actionwere barred by the statute of limitations. However, the Supreme Court denied that branch of themotion which was for summary judgment dismissing the cause of action sounding in continuingnuisance, and the defendants appeal from that portion of the order. We reverse the order insofaras appealed from.
"[N]o matter how a claim is characterized in the complaint—negligence, malpractice,breach of contract—an owner's claim arising out of defective construction accrues on dateof completion, since all liability has its genesis in the contractual relationship of theparties" (City School Dist. of City of Newburgh v Stubbins & Assoc., 85 NY2d 535,538 [1995] [emphasis added]; see Sears, Roebuck & Co. v Enco Assoc., 43 NY2d 389,394 [1977]; Town of Poughkeepsie vEspie, 41 AD3d 701, 706 [2007]). This rule [*2]applieseven where the plaintiff is a third-party beneficiary of the contract (see City School Dist. ofCity of Newburgh v Stubbins & Assoc., 85 NY2d at 538-539). In the case at bar, the actsunderlying the cause of action sounding in continuing nuisance are the very same acts whichunderlie the breach of contract and negligence causes of actions, that is, the failure of thedefendants to properly backfill the trenches during the performance of the construction contracts.Since the alleged continuing nuisance "has its genesis in the contractual relationship of theparties" (id. at 538), the cause of action sounding in continuing nuisance accrued whenthe construction work pursuant to the contract was substantially completed (see e.g. SuffolkCounty Water Auth. v H.T. Schneider, Inc., 288 AD2d 297 [2001]; Suffolk CountyWater Auth. v J.D. Posillico, Inc., 267 AD2d 301 [1999]). Accordingly, the Supreme Courtshould have granted that branch of the defendants' motion which was for summary judgmentdismissing, as barred by the statute of limitations, the cause of action sounding in continuingnuisance. Dillon, J.P., Miller, Dickerson and Chambers, JJ., concur.