Opinion
8922 8923 8924 Index 150632/16
04-04-2019
NEW YORK YACHT CLUB, Plaintiff–Appellant, v. John LEHODEY, et al., Defendants–Respondents.
Goetz Fitzpatrick LLP, New York (John B. Simoni, Jr. of counsel), for appellant. Loeb & Loeb LLP, New York (Gil Feder of counsel), for John Lehodey, Sofitel New York Hotel, Accor Business and Leisure North America Inc. and Normandie, LLC, respondents. Wilson Elser Moskowitz Edelman & Dicker LLP, New York (I. Elie Herman of counsel), for Accor North America Inc., respondent. Allegaert Berger & Vogel LLP, New York (Richard L. Mattiaccio of counsel), for KSSNY, Inc., respondent.
Goetz Fitzpatrick LLP, New York (John B. Simoni, Jr. of counsel), for appellant.
Loeb & Loeb LLP, New York (Gil Feder of counsel), for John Lehodey, Sofitel New York Hotel, Accor Business and Leisure North America Inc. and Normandie, LLC, respondents.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (I. Elie Herman of counsel), for Accor North America Inc., respondent.
Allegaert Berger & Vogel LLP, New York (Richard L. Mattiaccio of counsel), for KSSNY, Inc., respondent.
Friedman, J.P., Gische, Kapnick, Webber, Gesmer, JJ.
Plaintiff asserts seven causes of action in connection with defendants' construction of a 30–story building adjacent to its own shorter building, alleging, inter alia, that defendants failed to give it the requisite notice of their plans to build and failed to extend the chimneys and flues of its building, as required by Administrative Code of City of N.Y. § 27–860. Construction was completed on the new building no later than 2004. This action was not commenced until 2016.
The cause of action under Administrative Code § 27–860 accrued at the time of the completion of construction, and is governed by a three-year statute of limitations ( CPLR 214[2] ; see e.g. West Chelsea Bldg. LLC v. Guttman , 139 A.D.3d 39, 29 N.Y.S.3d 15 [1st Dept. 2016] ). Plaintiff's argument that defendants' noncompliance with § 27–860 represents a continuing wrong is unavailing. There has been no continuing wrongful conduct, only the continuing effects of the earlier alleged wrongful conduct (see generally Town of Oyster Bay v. Lizza Indus., Inc. , 22 N.Y.3d 1024, 981 N.Y.S.2d 643, 4 N.E.3d 944 [2013] ; Henry v. Bank of Am. , 147 A.D.3d 599, 48 N.Y.S.3d 67 [1st Dept. 2017] ). Similarly, plaintiff's purported continuing trespass claim is barred by the applicable three-year statute of limitations ( CPLR 214[2], [4] ), as the extent of its present damage claims was realized in 2004 when the new building was completed, and it is only the continuing effects of the original construction work that linger.Plaintiff failed to establish that there is a basis for finding the statutes of limitation that govern the remaining causes of action inapplicable.
We have considered plaintiff's remaining arguments and find them unavailing.