Summary
holding that in a continuing tort, the statute of limitations may constitute a partial defense
Summary of this case from Hegg v. Hawkeye Tri-County RECOpinion
February 25, 1993
Appeal from the Supreme Court, Madison County (Tait, Jr., J.).
Initially, we disagree with Supreme Court's conclusion that plaintiffs' failure to include the specific date the claim arose in the notice of claim rendered it jurisdictionally defective. Consequently, dismissal of the entire action was not warranted. "Whether a notice of claim substantially complies with the content requirements of General Municipal Law § 50-e (2) depends upon the circumstances of each case" (Levine v City of New York, 111 A.D.2d 785, 786; see, Shea v Incorporated Vil. of Head of Harbor, 180 A.D.2d 675, 676). In addition, a determination as to the notice's sufficiency should take into consideration the purpose of the statute, which is to afford the public corporation the opportunity "to locate the defect, conduct a proper investigation, and assess the merits of the claim" (Shea v Incorporated Vil. of Head of Harbor, supra, at 676; see, O'Brien v City of Syracuse, 54 N.Y.2d 353, 358; Caselli v City of New York, 105 A.D.2d 251, 252).
This Court has held that stray voltage, the underlying basis of plaintiffs' claim, is a continuing wrong which gives rise to a new cause of action on each day it exists (see, Zoller v Niagara Mohawk Power Corp., 137 A.D.2d 947, 950). In such circumstances, we fail to see how plaintiffs could have been any more specific in their notice of claim as to the date. Moreover, the notice of claim was not intended to mislead defendants (see, Cruz v City of New York, 95 A.D.2d 790, 791) and, in fact, defendants were familiar with the details of plaintiffs' problem before the notice of claim was filed. Defendants' representatives visited plaintiffs' farm and a neighboring farm soon after the stray voltage was discovered and they conducted their own tests and investigation. The stray voltage problem was not controlled until plaintiffs and their neighbors each installed an "electronic grounding system". In fact, plaintiffs had to install two electronic grounding systems at a cost of $7,000 each in October 1989. Defendants' employees were involved in the installation of the systems. In addition, because of an earlier attempt in 1981 to correct the continued occurrence of electrical shocks on the farm, defendants were well aware of the duration of plaintiffs' electrical problem. The conditions have not changed so as to hinder defendants' investigation. These facts support the conclusion that the statutory requirements as to content and purpose have been met, thereby affording defendants the opportunity to investigate and determine the merits of plaintiffs' claims (see, Shea v Incorporated Vil. of Head of Harbor, supra, at 677).
Next, although plaintiffs claimed that their damage was the result of negligent and reckless maintenance of the electric system, they also mention that their damages were the result of negligent construction; the damages alleged are quite specific. We find that the additional causes of action in plaintiffs' complaint were at least indirectly referred to in their notice of claim and, therefore, the nature of plaintiffs' claims was not substantially or substantively changed so as to warrant dismissal of the complaint (cf., Soto v City of New York, 161 A.D.2d 246; Mazzilli v City of New York, 154 A.D.2d 355, 357).
We also conclude, contrary to defendants' contention, that because the harm alleged is of a continuous nature whereby causes of action continually accrue, the Statute of Limitations does not operate as a complete defense (see, Zoller v Niagara Mohawk Power Corp., 137 A.D.2d 947, 950, supra). Plaintiffs are limited, however, in their recovery of damages "to those caused by the alleged unlawful acts sustained within 90 days preceding the date of filing of the notice of claim" (Goldstein v County of Monroe, 77 A.D.2d 232, 234). Finally, because plaintiffs' claims of damage are continuing and recurring in that the problem of the stray voltage is not corrected but only controlled by the electronic grounding systems operating at plaintiffs' expense, plaintiffs' damages should not be limited to the October 1989 date when the systems were installed.
Weiss, P.J., Yesawich Jr., Levine, Crew III and Mahoney, JJ., concur. Ordered that the order and judgment is modified, on the law, with costs to plaintiffs, by reversing so much thereof as dismissed those portions of the complaint which fall within the Statute of Limitations; motion denied to that extent; and, as so modified, affirmed.