Johnson v. Marianetti

Appellate Division of the Supreme Court of New York

Johnson v. Marianetti

202 A.D.2d 970, 609 N.Y.S.2d 494

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 11, 1994

StatusPublished

Cited by11 cases

This text of 202 A.D.2d 970 (Johnson v. Marianetti) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. Marianetti, 202 A.D.2d 970, 609 N.Y.S.2d 494 (N.Y. Ct. App. 1994).

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Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying defendant Marianetti’s motion to dismiss the complaint as barred by the three-year Statute of Limitations. Plaintiff alleges that Marianetti negligently altered a drainage pipe while constructing a house on the property adjacent to plaintiffs property in 1984, thereby causing ground water to be diverted onto plaintiffs property. Plaintiff alleges that the cause of action accrued in 1992 when she discovered that the basement wall of her home had cracked and showed signs of collapse. "The general rule * * * is that an action for injury to * * * property accrues at the time the injury is sustained, notwithstanding the actual damage is not suffered until later” (75 NY Jur 2d, Limitations and Laches, § 195).

In certain construction cases, the cause of action has been held to accrue after construction, when the injury is sustained (see, Mark v Eshkar, 194 AD2d 356, 357 [structural damage to a building from the loss of lateral support]; Durant v Grange Silo Co., 12 AD2d 694 [collapse of a structure]). In this case, however, the "injury” occurred when Marianetti altered the drainage pipe causing water to flow onto plaintiff’s property (see, City of Niagara Falls v Rudolph, 97 AD2d 971). Accordingly, plaintiffs claim against Marianetti was barred by the Statute of Limitations.

Supreme Court properly dismissed plaintiffs complaint against defendant City of Canandaigua as time-barred because "the happening of the event upon which the claim [was] based” (General Municipal Law § 50-i [1]) was the alleged negligent inspection by the City in 1984 (see, Klein v City of [971]*971Yonkers, 53 NY2d 1011; Nebbia v County of Monroe, 92 AD2d 724, lv denied 59 NY2d 603).

Thus, the order is modified by granting Marianetti’s motion to dismiss the complaint. (Appeals from Order of Supreme Court, Ontario County, Harvey, J. — Dismiss Complaint.) Present — Green, J. P., Pine, Callahan, Doerr and Boehm, JJ.

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—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying defendant Marianetti’s motion to dismiss the complaint as barred by the three-year Statute of Limitations. Plaintiff alleges that Marianetti negligently altered a drainage pipe while constructing a house on the property adjacent to plaintiffs property in 1984, thereby causing ground water to be diverted onto plaintiffs property. Plaintiff alleges that the cause of action accrued in 1992 when she discovered that the basement wall of her home had cracked and showed signs of collapse. "The general rule * * * is that an action for injury to * * * property accrues at the time the injury is sustained, notwithstanding the actual damage is not suffered until later” (75 NY Jur 2d, Limitations and Laches, § 195).

In certain construction cases, the cause of action has been held to accrue after construction, when the injury is sustained (see, Mark v Eshkar, 194 AD2d 356, 357 [structural damage to a building from the loss of lateral support]; Durant v Grange Silo Co., 12 AD2d 694 [collapse of a structure]). In this case, however, the "injury” occurred when Marianetti altered the drainage pipe causing water to flow onto plaintiff’s property (see, City of Niagara Falls v Rudolph, 97 AD2d 971). Accordingly, plaintiffs claim against Marianetti was barred by the Statute of Limitations.

Supreme Court properly dismissed plaintiffs complaint against defendant City of Canandaigua as time-barred because "the happening of the event upon which the claim [was] based” (General Municipal Law § 50-i [1]) was the alleged negligent inspection by the City in 1984 (see, Klein v City of [971]*971Yonkers, 53 NY2d 1011; Nebbia v County of Monroe, 92 AD2d 724, lv denied 59 NY2d 603).

Thus, the order is modified by granting Marianetti’s motion to dismiss the complaint. (Appeals from Order of Supreme Court, Ontario County, Harvey, J. — Dismiss Complaint.) Present — Green, J. P., Pine, Callahan, Doerr and Boehm, JJ.

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202 A.D.2d 970, 609 N.Y.S.2d 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-marianetti-nyappdiv-1994.

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