Rainford v. Village of Montebello
Opinion
Rainford v Village of Montebello
2026 NY Slip Op 04968
August 12, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Norbert Rainford, et al., respondents,
v
Village of Montebello, defendant, Town of Ramapo, appellant.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on August 12, 2026
2024-12220, 2025-00577, (Index No. 33444/23)
Mark C. Dillon, J.P.
Cheryl E. Chambers
Lillian Wan
Laurence L. Love, JJ.
Itamar J. Yeger, Town Attorney, Suffern, NY, for appellant.
Wayne D. Esannason, Scarsdale, NY, for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for trespass and nuisance, the defendant Town of Ramapo appeals from (1) an order of the Supreme Court, Rockland County (Christie L. D'Alessio, J.), dated October 3, 2024, and (2) an order of the same court dated December 3, 2024. The order dated October 3, 2024, denied the plaintiffs' cross-motion pursuant to General Municipal Law § 50-e(6) for leave to amend the notice of claim. The order dated December 3, 2024, insofar as appealed from, denied that branch of the motion of the defendant Town of Ramapo which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging trespass and nuisance insofar as asserted against it.
ORDERED that the appeal from the order dated October 3, 2024, is dismissed, as the defendant Town of Ramapo is not aggrieved by that order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144); and it is further,
ORDERED that the order dated December 3, 2024, is reversed insofar as appealed from, on the law, and that branch of the motion of the defendant Town of Ramapo which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging trespass and nuisance insofar as asserted against it is granted; and it is further,
ORDERED that one bill of costs is awarded to the defendant Town of Ramapo.
In 1993, the plaintiffs purchased property in the Village of Montebello, which is an incorporated village in the Town of Ramapo. In 2005, the Town obtained an easement from the owners of the property adjoining the plaintiffs' property to install a sewer line and storm drain pipe (hereinafter the 2005 excavation). Beginning in 2011, the plaintiffs began experiencing flooding in their basement that increased over the course of time. In 2018, the plaintiffs learned by an ultrasound performed by a contractor that there was a problem with the footing drain. In 2022, the plaintiffs hired a second contractor to diagnose and fix the issue and the second contractor discovered that the plaintiffs' footing drain pipe, which extended onto the adjoining property, had been cut, that a 40-foot section of the footing drain pipe had been removed, and that the area had been backfilled, thereby preventing water from draining properly. The plaintiffs concluded that the footing drain pipe [*2]had been severed and removed during the 2005 excavation.
In August 2022, the plaintiffs served a notice of claim on the Town. In 2023, the plaintiffs commenced this action, inter alia, to recover damages for trespass and nuisance. The Town moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it, contending, among other things, that the notice of claim was insufficient as to the sixth cause of action, alleging trespass and nuisance, and that all of the causes of action were time-barred. The plaintiffs cross-moved for leave to amend the notice of claim. In an order dated October 3, 2024, the Supreme Court denied the plaintiffs' cross-motion. In an order dated December 3, 2024, the court, inter alia, denied that branch of the Town's motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging the trespass and nuisance insofar as asserted against it. The Town appeals.
"A timely and sufficient notice of claim is a condition precedent to asserting a tort claim against a municipality or public benefit corporation" (Mitchell v Jimenez, 233 AD3d 773, 774 [internal quotation marks omitted]; see General Municipal Law § 50-e[1][a]; Se Dae Yang v New York City Health & Hosps. Corp., 140 AD3d 1051, 1052). "A notice of claim must set forth, inter alia, the nature of the claim, and the time, place, and manner in which the claim arose" (Mitchell v Jimenez, 233 AD3d at 774 [internal quotation marks omitted]; see General Municipal Law 50-e[2]; Lipani v Hiawatha Elementary Sch., 153 AD3d 1247, 1248). "The purpose of the statutory notice of claim requirement is to afford the public corporation an adequate opportunity to investigate the circumstances surrounding the claim and to explore the merits of the claim while information is still readily available" (Mitchell v Jimenez, 233 AD3d at 774 [internal quotation marks omitted]; see Harrison v City of New York, 197 AD3d 630, 630-631). Contrary to the Town's contention, the notice of claim, which set forth allegations that the Town intentionally or negligently interfered with the plaintiffs' property causing flooding and structural damage, was sufficient to put the Town on notice of the sixth cause of action, alleging trespass and nuisance.
The Supreme Court, however, should have granted that branch of the Town's motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging trespass and nuisance insofar as asserted against it as time-barred (see Bank of N.Y. Mellon Trust Co. v Kyung Lee, 242 AD3d 1163, 1164; Kravets v Striano, 229 AD3d 613, 613; St. Hillaire v Torres, 229 AD3d 476, 477). A tort action against a municipality must be commenced within one year and ninety days of the complained of conduct (see General Municipal Law § 50-i[1]; Methal v Village of Ardsley, 218 AD3d 561, 562).
Contrary to the plaintiffs' contentions, there was no continuous trespass, as there was a single discrete act that occurred in 2005 when the Town allegedly severed the plaintiffs' footing drain pipe (see Town of Oyster Bay v Lizza Indus., Inc., 22 NY3d 1024, 1030; Bloomingdales, Inc. v New York City Tr. Auth., 52 AD3d 120, 123-126, affd 13 NY3d 61). Although it can be argued that the severance and removal of a 40-foot section of pipe and backfilling same is the equivalent of a structural impediment, the plaintiffs were aware that there was a problem with the footing drain since at least 2018. An action to recover damages for injury to property accrues "'when the damage [is] apparent'" (Coe v Village of Waterloo, 229 AD3d 1119, 1120 [internal quotation marks omitted], quoting Russell v Dunbar, 40 AD3d 952, 953). Since the plaintiffs did not serve the notice of claim until 2022 and did not file the complaint until 2023, so much of the sixth cause of action as alleged trespass is time barred (see General Municipal Law § 50-i[1]; Methal v Village of Ardsley, 218 AD3d at 562). Similarly, so much of the sixth cause of action as alleged nuisance is time-barred, as it stems from the same tortious action in 2005 and the record does not support the plaintiffs' assertion that the alleged nuisance was premised on a continuing wrong (see Copart Indus. v Consolidated Edison Co. of N.Y., 41 NY2d 564, 570; Trulio v Village of Ossining, 153 AD3d 577, 579).
Accordingly, the Supreme Court should have granted that branch of the Town's motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging trespass and nuisance insofar as asserted
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