State of New York
Supreme Court : County of Monroe

- against -

Index No. 1993/7051

ANDREW V. SIRACUSE, J.

While this case was commenced in 1993, the dispute it arose out of is even older. Plaintiff Melvin Simon acquired 28 acres of rural land in the town of Chili in 1975, taking possession in 1982. The land is low-lying, and during some seasons water flowed through a drainage course on the property. Most of the year, however, the property was dry.

Mr. Simon's property was subject to two drainage easements, one in favor of the town and the other in favor of the county. Both easements impose upon the municipal grantees the obligation to maintain the easements. During the early years of Mr. Simon's ownership, however, an increased amount of water began flowing into his property, and the drainage facilities proved to be inadequate. In spite of the provisions of the easements neither the county nor the town did maintenance work on the drainage channels. Seasonal water flow became year-round, and channeled flow became a permanent and spreading flood. The state Department of Environmental Conservation declared portions of Mr. Simon's land to be wetlands, a designation that has been applied to an ever-increasing percentage of the property. All or virtually all of the land, a parcel that he had bought with the intention of development, is now a state-designated wetland.

Mr. Simon commissioned an engineering firm to assess the problem while he negotiated with the town. The firm reported that increased development around his property, lack of maintenance of the drainage easements, and the placement of the outflow culvert at an elevation too high to permit effective drainage were the factors involved. At first Mr. Simon's appeals seemed to bear fruit. In 1984 the county entered into an agreement to restore the easement it had over the land and to continue maintenance upon request. In return Simon would release the county for all claims arising from damages prior to the date of the agreement. Although more than sixteen years have passed, the County has still not done any of the work that it contracted to do.

For some years the town continued to reassure Mr. Simon that his concerns would be addressed. In 1992, however, the town retained Joseph Lu, an engineer, to evaluate drainage issues, and Mr. Simon interpreted Mr. Lu's report as recommending that his land be used as a permanent detention [sic] facility. Mr. Simon at length decided that further reliance on the town's good faith was pointless, and he commenced this action. He has alleged causes of action in negligence, nuisance, inverse condemnation, breach of the easement agreements and the agreement with the county, and continuing trespass, and sought damages, rescission of the easements, and an injunction against the town permitting more water to flow on the land.

The town's answer contained the defense of the Statute of Limitations, and after extensive discovery, depositions, and exchange of experts' reports the town has moved to dismiss on those grounds all claims but the equitable ones and all damage claims arising prior to one year and 90 days before the commencement of the action--the limitations period for negligence actions against the town.

The county imposed no such defense in its answer. Now, seven years after its initial answer and its answer to plaintiff's amended complaint, the county seeks permission under CPLR 3025 to add this defense in an amended answer, and for summary judgment on that basis. Mr. Simon has cross-moved against both parties for partial summary judgment on liability.

The town's motion is meritorious in part, but only insofar as it limits damages to the limitations period for each cause of action pleaded--one year and 90 days for negligence, but six years for the other claims. The wrongs complained of by Mr. Simon are continuing ones, and "the wrong was not referable exclusively to the day when the original wrong was committed" (Colrick v Swinburne, 105 NY 503, at 507 [continuing deprivation of water]; see also Reed v State, 108 NY 407, at 414 [periodic flooding]). As the Court of Appeals ruled in these cases, the plaintiff is limited as to the years for which damages can be recovered, but the cause of action itself arises from a continuing wrong, and is not time barred.

The county would be entitled to the same limitation on temporal liability had it pleaded the statute of limitations defense in its original answers. At this stage of the proceedings, however, it cannot amend the pleadings without leave of the court, and the court has discretion to deny that request. Two contrasting provisions of the CPLR must be harmonized. CPLR 3025 provides that leave to amend should be freely given. On the other hand, CPLR 3211 (e) states that the statute of limitations defense is waived unless it is raised in the responsive pleadings or a pre-answer motion to dismiss. The courts have been guided in their consideration of these two intersecting provisions by weighing the prejudice to the plaintiff over and above the possible loss of a cause of action. In the present case that prejudice is substantial. A First Department panel recently listed some of the prejudicial consequences of a defendant's long delay in asserting the defense:

Defendants-appellants' motion for leave to include the Statute of Limitations as a defense in their answer was made approximately six years after they served their answer, after plaintiff, relying on their waiver of that defense for failure to include it in their answer (CPLR 3211[e]), had engaged in motion practice and disclosure, placed the case on the calendar, and otherwise spent considerable time and expense preparing for trial. Such prejudice, coupled with appellants' failure to offer any excuse for the delay in asserting the defense, provided ample reason for denying the motion (Cameron v 1199 Housing Corporation, 208 AD2d 454, at 454-455, citations omitted).

Thus, the county's motion is denied and the town's is granted only insofar as Mr. Simon's damages are limited to the period of six years (or one year and 90 days, in some causes of action) before the date of commencement. Those damages are yet to be established. It is clear, however, that both defendants are in breach of the easement agreements. Neither has ever taken any steps to maintain its drainage facilities on Mr. Simon's property. The county, in addition, is in breach of its 1984 contract, and indeed has been in breach since 1984.

Furthermore, the town's failure to address the height of the outflow culvert and its other failures to address the problem on Mr. Simon's property are additional causes of the flooding that has rendered that land valueless. Papers filed in opposition to Mr. Simon's motion for partial summary judgment argue that New York State, responsible for the adjoining roadway, may also contribute to the problem, as may work done by others. These claims, though, do not exclude the town's own liability, and in fact the town's reply affidavit argues only that the plaintiff's experts list other factors in the flooding along with the town's negligence. This argument does nothing to refute Mr. Simon's claim. The town and the county are free to argue these factors in mitigation. They may, in theory, succeed in establishing that their own conduct has played only a minor part in the degradation of Mr. Simon's land. But even a minor role would still be actionable; other contributors to the problem would at best be joint tortfeasors, and Mr. Simon is not required to identify and sue the primary contributing party.

The court thus grants partial summary judgment to the plaintiff, on liability only. A trial on damages will be required. In preparation, the defendants have both requested an additional inspection of Mr. Simon's land. At oral argument the court was led to believe that this request, which was entirely proper, would be dealt with informally. Mr. Malarney may prepare an order striking the punitive damages claims, limiting damages to the town to the appropriate periods, denying the county's motion except insofar as it sought the dismissal of the punitive damages claim, and granting the plaintiff summary judgment as to liability as against both defendants, with separate bills of costs.

DATED: Rochester, New York

September 1, 2000

Andrew V. Siracuse, J.S.C.

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