| Pilatich v Town of New Baltimore |
| 2012 NY Slip Op 07941 [100 AD3d 1248] |
| November 21, 2012 |
| Appellate Division, Third Department |
| Stephan A. Pilatich, Appellant, v Town of New Baltimoreet al., Defendants, and William M. Hamilton et al., Respondents. |
—[*1] McHugh Law Firm, PC, Ravena (Christina A. Cronin of counsel), for respondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Pulver Jr., J.), entered September7, 2011 in Greene County, which, among other things, granted a motion by defendants WilliamM. Hamilton and Donna R. Hamilton for, among other things, summary judgment dismissing thecomplaint against them.
Plaintiff owns property on Jennings Road in the Town of New Baltimore, Greene County, onwhich he operates a farm. Defendants William M. Hamilton and Donna R. Hamilton (hereinaftercollectively referred to as defendants) own and reside on a parcel of real estate located across theroad from plaintiff's farm. Between 1991 and 1994, defendants constructed a stone wall at theentrance of their driveway alongside Jennings Road to deter vehicles from driving over theirlawn. Sometime later, defendants installed several iron pipes on their property running from thefar end of the stone wall along Jennings Road. According to plaintiff, the installation of the stonewall and pipes, coupled with defendant Town of New Baltimore adding "new paving and roadmaterial" on his side of Jennings Road, caused the roadway to "shift" toward his property, andlarge trucks are no longer able to access the driveway leading to his farm. He also argues thatdefendants' placement of the rock wall and pipes constituted a private [*2]nuisance that has substantially interfered with his use andenjoyment of his property.
In 2010, plaintiff commenced this action seeking, among other things, damages as well as anorder directing defendants to remove the wall and pipes from their property. Prior to filing ananswer to the complaint, defendants moved to dismiss pursuant to CPLR 3211 (a) (7), assertingthat plaintiff had failed to state a cause of action. In the alternative, defendants also moved forsummary judgment dismissing the complaint on the ground that plaintiff's claims were barred bythe statute of limitations (see CPLR 3212). Supreme Court denied defendants' motion todismiss, but granted defendants' motion for summary judgment concluding that plaintiff's claimswere time-barred. Plaintiff now appeals.
Initially, we disagree with Supreme Court's conclusion that plaintiff's claim of privatenuisance is untimely. While an action to recover damages for injury to property must becommenced within three years from the date of the injury (see CPLR 214 [4]), actionspremised on a continuing nuisance involve a continuous wrong and, therefore, "generally giverise to successive causes of action that accrue each time a wrong is committed" (Smith v Town of Long Lake, 40 AD3d1381, 1383 [2007]). In such cases, "damages are only recoverable to the extent that theywere sustained during the three years immediately preceding commencement" of the action(Cippitelli v Town of Niskayuna, 203 AD2d 632, 634 [1994]; see Kearney v AtlanticCement Co., 33 AD2d 848, 849 [1969]). Here, plaintiff's claim of private nuisance ispremised upon the existence of on-going damage being caused to his property by defendants'wall and iron posts. Thus, his claim for damages for the three-year period immediately prior tothe commencement of this action is not untimely (see Petti v Town of Lexington, 92 AD3d 1111, 1114-1115 [2012];Lucchesi v Perfetto, 72 AD3d909, 911 [2010]).
We also find that Supreme Court erred in granting summary judgment dismissing thecomplaint. Defendants' motion was made before issue was joined by the service of an answer(see CPLR 3212 [a]; Berle vBuckley, 57 AD3d 1276, 1277-1278 [2008]). Further, defendants limited their motionfor summary judgment to whether the statute of limitations barred plaintiff's action and did notaddress whether factual issues existed as to plaintiff's private nuisance claim. While a court maytreat a motion to dismiss as one for summary judgment (see CPLR 3211 [c]; StainlessBroadcasting Co. v Clear Channel Broadcasting Licenses, L.P., 58 AD3d 1010, 1012[2009]), it must provide notice of its intention to do so unless the parties lay bare their proof and" 'deliberately chart[ ] a summary judgment course' " (Henbest & Morrisey v W.H. Ins.Agency, 259 AD2d 829, 830 [1999], quoting Four Seasons Hotels v Vinnik, 127AD2d 310, 320 [1987]; see Jones vRochdale Vil., Inc., 96 AD3d 1014, 1016 [2012]; Moore v Ruback's Grove Campers' Assn., Inc., 85 AD3d 1220,1221 [2011]). Since the parties never addressed the specifics of plaintiff's private nuisance claim,Supreme Court should not have granted defendants' motion for a summary judgment dismissingthe complaint (see Stainless Broadcasting Co. v Clear Channel Broadcasting Licenses,L.P., 58 AD3d at 1012; compareKaplan v Roberts, 91 AD3d 827, 828 [2012]).
Mercure, J.P., Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is modified, onthe law, with costs to plaintiff, by reversing so much thereof as granted the motion of defendantsWilliam M. Hamilton and Donna R. Hamilton [*3]for summaryjudgment; motion denied and matter remitted to the Supreme Court to permit said defendants toserve an answer within 20 days of the date of this Court's decision; and, as so modified, affirmed.