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Second Department Sends Towns Back To The Future

May 25, 2010

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Various towns in Nassau and Suffolk County commenced a slew of construction defect cases against contractors that installed sewer systems for them in the 70s and 80s. To avoid the statute of limitation obstacles they faced, the towns couched their claims as "continuing public nuisances." They alleged that because the damage stemming from the defective installation was continuing, the statute of limitations did not apply. In two such cases, the lower court agreed with the plaintiffs and denied the defendants’ motions for summary judgment. However, in <i>Town of Islip v. H.T. Schneider Associates </i>and <i>Town of Babylon v. H.T. Schneider Associates</i> the Second Department reversed the lower court’s decision. The Second Department found that "the acts underlying the cause of action sounding in continuing nuisance are the very same acts that underlie the breach of contract and negligence causes of actions, that is, the failure of the defendants to properly backfill the trenches during their performance of construction contracts. Since the alleged continuing nuisance “has its genesis in the contractual relationship of the parties, the cause of action sounding in continuing nuisance accrued when the construction work pursuant to the contract was substantially complete." The Second Department has now made it clear that plaintiffs wishing to recover for damages sustained far back into the past will be brought back to the future by the statute of limitations.
Thanks to Cheryl Fuchs for her contribution to this post.
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