| Benjamin v Keyspan Corp. |
| 2013 NY Slip Op 02038 [104 AD3d 891] |
| March 27, 2013 |
| Appellate Division, Second Department |
| Cathy Benjamin, Appellant, v Keyspan Corp. et al.,Respondents, et al., Defendants. |
—[*1] John F. Hastings, Hicksville, N.Y. (Bruce W. Felmly, pro hac vice, of counsel), forrespondents.
In an action, inter alia, to recover damages for continuing trespass, negligence, andviolation of Navigation Law article 12, the plaintiff appeals from an order of theSupreme Court, Suffolk County (Whelan, J.), dated August 26, 2011, which granted themotion of the defendants Keyspan Corp., Keyspan Energy Corp., and Keyspan Gas EastCorp., doing business as Keyspan Energy, pursuant to CPLR 3211 (a) to dismiss thecomplaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
"A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5) onthe ground that it is barred by the statute of limitations bears the initial burden ofproving, prima facie, that the time in which to sue has expired" (LaRocca v DeRicco, 39 AD3d486, 486-487 [2007] [internal quotation marks omitted]; see East Hampton Union FreeSchool Dist. v Sandpebble Bldrs., Inc., 90 AD3d 821, 822 [2011]). The burdenthen shifts to the nonmoving party to raise an issue of fact as to the applicability of anexception to the statute of limitations, or as to whether the statute of limitations wastolled (see Shalik v HewlettAssoc., L.P., 93 AD3d 777, 778 [2012]; Williams v New York City Health & Hosps. Corp., 84 AD3d1358, 1359 [2011]) or the cause of action was interposed within the applicablelimitations period (see East Hampton Union Free School Dist. v Sandpebble Bldrs.,Inc., 90 AD3d at 822).
Here, the defendants Keyspan Corp., Keyspan Energy Corp., and Keyspan Gas EastCorp., doing business as Keyspan Energy (hereinafter collectively the Keyspandefendants), demonstrated that in 1998, the plaintiff agreed to allow their predecessor toinstall monitoring wells on the subject property, and that, in 2002, the plaintiffparticipated in a survey regarding the possible infiltration of contaminants into thevicinity of the subject property. The Keyspan defendants also demonstrated that inJanuary 2003, they notified the plaintiff of monitoring activities and test results regardingthe presence of contaminants in the vicinity of the subject property. Thus, the Keyspandefendants established that, at least eight years before the plaintiff commenced this actionin [*2]February 2011, the plaintiff obtained knowledgethat would place "a reasonable person on notice of the need to undertake furtherinvestigation to ascertain the scope of the contamination" (Oliver Chevrolet v MobilOil Corp., 249 AD2d 793, 794-795 [1998]; see Rose v Grumman AerospaceCorp., 196 AD2d 861, 862 [1993]).
In opposition, the plaintiff failed to raise an issue of fact as to the applicability of anexception to the statute of limitations, or as to whether the statute of limitations wastolled or the causes of action were interposed within the applicable limitations period(see Shalik v Hewlett Assoc., L.P., 93 AD3d at 778; East Hampton UnionFree School Dist. v Sandpebble Bldrs., Inc., 90 AD3d at 822). Thus, the SupremeCourt properly granted the Keyspan defendants' motion pursuant to CPLR 3211 (a) (5) todismiss the complaint insofar as asserted against them as barred by the statute oflimitations (see CPLR 214-c [2]; 213 [1]; Jensen v General Elec. Co., 82NY2d 77, 83-84 [1993]). Balkin, J.P., Chambers, Roman and Hinds-Radix, JJ., concur.