[Brawl] Over Troubled Waters

This was originally posted on the SGR Blog.

Plaintiffs (Joseph Ubiles and Bernice Ubiles) and defendants (Ndingfarae Ngardingabe and Julie Camisuli) own adjoining properties on West 147th Street in Manhattan. Plaintiffs claimed that rain water and snow melt was flowing from defendants’ driveway into their property. Plaintiffs contended that, as a result of the runoff, the foundation and the walls of their home had been damaged. They contended that defendants caused the condition by impermissibly altering the water drainage system in defendants’ driveway and doing nothing to remediate the problem despite plaintiffs’ complaints.

Plaintiffs sued. Defendants moved to dismiss based on the statute of limitations and on plaintiffs’ failure to state a cause of action. Defendants claimed that the driveway was installed in 1989 when two lots (431 and 433 West 147th Street) were merged. Defendants argued that the driveway is pitched towards the street and was not causing damage to plaintiffs’ property. Defendants claimed that,  in 2006, plaintiffs requested  their permission to access defendants’ driveway to do pointing work and partial waterproofing on plaintiffs’ wall. Defendants contended that, by 2009, the work on plaintiffs’ wall was deteriorating and rendered the property vulnerable to damage from rain and snow.

In 2014, plaintiffs again requested access to defendants’ property and they were allowed to install a tarp over a portion of the wall. In May 2015, defendants received a letter from plaintiffs’ attorney asserting that defendants’ actions in 2009 or 2010 (cementing over their existing driveway) were deficient and caused the surface to pitch towards plaintiffs’ property. Defendants admitted that the driveway was paved in 2009.

Defendants pointed out that they notified their insurance company after receiving the letter from plaintiffs’ counsel but that their insurance company found that the driveway did not contribute to plaintiffs’ damage. Defendants maintained that plaintiffs reached out to their own insurance carrier, who also denied  their claim based on the water runoff.

Defendants argued that the action was time-barred because the driveway was altered, at the latest, eight years before the suit was commenced. Defendants also argued that the continuous wrong doctrine did not apply because the damage arose out of a single allegedly objectionable act (the altering of the driveway). Defendants concluded that plaintiffs knew about the damage since at least 2006 and, therefore, they could not claim a continuing trespass or nuisance.

In opposition, plaintiffs insisted they did not know about the source of the water flow until 2015. Plaintiffs purportedly hired an architect in 2015, who found that the water was flowing from defendants’ driveway. Plaintiffs argued that defendants expanded their driveway without the  required approval from the City. Plaintiffs disputed that they knew about the water damage in 2006 even though they claimed that, every time it rained or snowed, their property was inundated with water runoff. Plaintiffs claimed that the water runoff constituted a trespass on their property.

In moving to dismiss an action as barred by the statute of limitations, defendants had the initial burden of demonstrating that the time within which to commence the cause of action had expired. The burden then shifted to plaintiffs to raise a question of fact as to whether the statute of limitations was inapplicable or whether the action was commenced within the statutory period.  And plaintiffs were required to present evidentiary facts establishing that the action was timely or  raise an issue of fact as to whether the action was timely.

The continuous wrong doctrine is an exception to the general rule that the statute of limitations runs from the time of the breach though no damage occurs until later. The doctrine is usually employed where there is a series of continuing wrongs and serves to toll the running of a period of limitations to the date of the commission of the last wrongful act. Where applicable, the doctrine will save all claims for recovery of damages but only to the extent of wrongs committed within the applicable statute of limitations.

The doctrine may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct. The distinction is between a single wrong that has continuing effects and a series of independent, distinct wrongs. The doctrine is inapplicable where there is one tortious act complained of since the cause of action accrues in those cases at the time that the wrongful act first injured plaintiff and it does not change as a result of continuing consequential damages.

Here, the Court found that the action was barred by the statute of limitations. The case was filed in 2017. The allegedly unlawful acts were either the construction of the driveway in 1989 or the paving of the driveway in 2009. Both of these acts (which purportedly caused the water runoff) occurred prior to the three-year statute of limitations applicable to plaintiffs’ causes of action. Plaintiffs did not allege that defendants did anything else to cause the water runoff.

Therefore, the Court found that, assuming plaintiffs’ claims were true, the paving of the driveway in 2009 was a single and distinct wrong that purportedly had continuing effects rather than a series of independent acts. Put another way, because defendants did not alter the driveway since 2009, the water runoff when it rains or snows were not new wrongful acts by defendants.

Moreover, the record showed that plaintiffs were experiencing water runoff problems since at least 2006. The letter correspondence between the parties made clear that plaintiffs needed to have work done to keep their basement dry. In fact, the parties’ communications showed that a wall was built by plaintiffs in 2006 for “drainage enhancement”. In other words, plaintiffs clearly had water problems in 2006 and took actions to try and remediate the problem more than three years before they brought suit.

The opposition, an affidavit from Joseph Ubiles, conveniently skipped from a conclusory assertion that defendants’ driveway had nothing to do with the 2006 work to 2015. There was no explanation for why they did not seek to discover the cause of the water issues in 2006 despite the fact that they needed access to defendants’ property to do the work.

Plaintiffs waited until 2015 to hire an architect, who claimed that the water runoff was from defendants’ driveway, but that did not extend the statute of limitations. Plaintiffs sat on their rights for over a decade after their property suffered water damage. Therefore, plaintiffs’ claims were untimely and the motion to dismiss was granted.

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