Opinion
CA 01-01789
May 3, 2002.
Appeal from an order of Supreme Court, Steuben County (Fisher, J.), entered May 14, 2001, which granted in part defendants' motions seeking summary judgment.
WELCH WELCH, CORNING (JACOB P. WELCH OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
SULLIVAN AND LEYDEN, P.C., WAYLAND (JOHN F. LEYDEN OF COUNSEL), FOR DEFENDANT-RESPONDENT TOWN OF PULTENEY.
DAVIDSON O'MARA, P.C., ELMIRA (DONALD S. THOMSON OF COUNSEL), FOR DEFENDANT-RESPONDENT COUNTY OF STEUBEN.
PRESENT: GREEN, J.P., WISNER, HURLBUTT, SCUDDER, AND LAWTON, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Supreme Court properly granted in part the motions of defendants Town of Pulteney and County of Steuben seeking summary judgment and dismissed the amended complaint insofar as it seeks damages as time-barred pursuant to General Municipal Law § 50-e and CPLR 214-c (3) ( see Potanovic v. County of Rockland, 267 A.D.2d 291, 291; see also Bluitt v. Ridge Fire Dist., 230 A.D.2d 814, 815-816, lv denied 89 N.Y.2d 810). As the court properly determined, the continuing-wrong exception ( see generally Sova v. Glasier, 192 A.D.2d 1069, 1070) is inapplicable to the facts of this case ( see generally Jensen v. General Elec. Co., 82 N.Y.2d 77, 81, 88). We further conclude that defendants had no ongoing duty to maintain plaintiffs' well water system ( see Nebbia v. County of Monroe, 92 A.D.2d 724, 725, lv denied 59 N.Y.2d 603; see also Sniper v. City of Syracuse, 139 A.D.2d 93, 95-96) or to prevent seepage from defendants' storage of road salt pursuant to the Environmental Conservation Law ( see State of New York v. Schenectady Chems., 103 A.D.2d 33, 35-36). Contrary to the further contention of plaintiffs, they have failed to show that defendants made fraudulent representations and are therefore equitably estopped from raising the statute of limitations as a defense ( see generally Augustyn v. County of Wyoming, 275 A.D.2d 1003). "There is no evidence in the record that defendant[s] made any representation or engaged in a course of conduct which led plaintiff[s] to believe it would be unnecessary to commence litigation in order to settle plaintiff[s'] claim[s] or that if litigation were commenced, the Statute of Limitations would not be pleaded in bar" ( Brands v. Sperduti, 43 A.D.2d 903, 903; see Yassin v. Sarabu, 284 A.D.2d 531). Finally, the contention of plaintiffs in their reply brief concerning the applicability of a federal statute of limitations is not properly before us because it is raised for the first time on appeal ( see DeVito v. Johnson Newspaper Corp., 237 A.D.2d 887, appeal dismissed 89 N.Y.2d 1086; O'Sullivan v. O'Sullivan, 206 A.D.2d 960).