Opinion
May 13, 1991
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff's original verified complaint, the thrust of which was that the defendant's negligent installation of a sewer system caused damage to the plaintiff's water main and roadway, alleged seven causes of action. By order dated September 4, 1985, the Supreme Court, Nassau County (Harwood, J.), found that three of these causes of action were blatantly defective and four were defective in that they failed to specify dates of certain pertinent events. The plaintiff was directed to amend its complaint to include the necessary dates, and to serve it on the defendant within 20 days. The plaintiff complied with the order dated September 4, 1985, and inserted the necessary dates; however, its amended complaint reiterated the three blatantly defective causes of action. Thereafter the defendant answered and discovery commenced.
Some three years later the plaintiff sought leave to serve a further amended complaint to delete its cause of action sounding in trespass and interpose a cause of action sounding in continuing nuisance, to amend its seventh cause of action to assert a claim based on Highway Law § 320 seeking treble damages, and to add a cause of action for a judgment declaring that Highway Law § 320 is applicable to the instant action. The plaintiff also sought partial summary judgment on the declaratory judgment cause of action. The defendant then cross-moved to dismiss the complaint on the ground that the plaintiff had failed to comply with the order dated September 4, 1985.
In the order appealed from, the court denied the plaintiff's motion in all respects and granted the defendant's motion to the extent of dismissing the plaintiff's fifth, sixth, and seventh causes of action, which were those deemed to be blatantly defective in the prior order. We affirm.
"It is well settled that leave to amend * * * should be freely granted unless the amendment sought is palpably improper or insufficient as a matter of law or unless prejudice and surprise directly results from the delay in seeking the amendment" (Nissenbaum v Ferazzoli, 171 A.D.2d 654, 655; see, McCaskey, Davies Assocs. v New York City Health Hosps. Corp., 59 N.Y.2d 755; Barnes v County of Nassau, 108 A.D.2d 50; Town Bd. v National Sur. Corp., 53 Misc.2d 23, affd 29 A.D.2d 726). While the defendant's claims of prejudice are unwarranted, the causes of action that the plaintiff is seeking to add to its complaint are insufficient as a matter of law.
Nuisance has been defined as "a conscious and deliberate act involving the idea of continuity or recurrence" (cf., State of New York v Long Is. Light. Co., 129 Misc.2d 371, 375, citing Metropolitan Life Ins. Co. v Moldoff, 187 Misc. 458, affd 272 App. Div. 1039), and a "`degree of permanence is an essential element'" (State of New York v Long Is. Light. Co., supra, at 375, citing Ford v Grand Union Co., 240 App. Div. 294, 296). Applying these principles to the allegations in the plaintiff's proposed further amended complaint, it is clear that it has attempted to allege a continuing and recurring problem and permanent damage; however, upon a careful examination of the entire proposed further amended complaint, it seems apparent that a cause of action sounding in nuisance cannot lie. The alleged injuries to the water main and roadway were not caused by the defendant's conscious or deliberate act and have been repaired. Any alleged future injury would be nothing more than mere speculation.
Additionally, since the type of conduct covered by Highway Law § 320 must be deliberate and intentional (see, State of New York v Ranks, 115 A.D.2d 194; Town of Waterford v Brockett Lbr. Co., 227 App. Div. 422), the defendant's alleged negligent acts cannot be the subject of a cause of action grounded in that provision. Thompson, J.P., Brown, Eiber and O'Brien, JJ., concur.