Opinion
33576/03.
Decided November 22, 2005.
Manolo E. Tolentino, Esquire, New York, New York, Attorney for Plaintiff.
Michael A. Cardozo, Esquire, The City of New York, Ann Broderick, Esquire of Counsel, Staten Island, New York, Attorneys For Defendant.
Plaintiff Alexander Y. Tupaz seeks recovery against the City of New York ("City"), for damage allegedly sustained to his home located at 4675 Amboy Road, Staten Island, NY Specifically, plaintiff claims that his home sustained multiple floods and sewer backups causing at least $25,000 in damages. On or about May 15, 2003, a Summons with Endorsed Complaint was served. Defendant City, sued here as "NYC-Department of Environmental Protection", served its verified answer on May 21, 2003, raising among other defenses, statute of limitations. By Notice of Motion dated July 19, 2005, the City moved to dismiss the Complaint for failure to comply with General Municipal Law ("GML") § 50-e and § 50-i.
The City contends that plaintiff's notice of claim filed on January 15, 2003 is untimely as it indicates that the damage was sustained on September 30, 2001, which is more than one year past the expiration of the ninety day time period provided in GML § 50-e for filing a notice of claim, a condition precedent to commencing the action. The City further argues that the Summons with Endorsed Complaint served on or about May 15, 2003 is beyond the one year and ninety day statutory period for commencing an action set forth in GML § 50-i.
Plaintiff argues that the Notice of Claim and the commencement of the action were timely due to an alleged tolling of the statute of limitations. In support of this theory, plaintiff alleges, as follows:
On April 17, 2001, plaintiff hired a professional licensed plumber to connect his house to the City's sewer's line as mandated by the City. One week later, water backed up into plaintiff's house causing serious damage and posing a health risk to his family. Beginning with his first complaint lodged with the City in 2001, plaintiff claims that he complained "at least 50 times" and was assigned a claim number to each complaint. Each complaint was investigated by the City.
After each investigation, the City found that its main sewer line was working properly, and advised plaintiff that the problem lied in his house connection, which was not the City's responsibility. On each occasion, plaintiff hired a sewer cleaner or plumber to investigate. When the problem persisted, after about two years time, plaintiff authorized the plumber, at increased expense, to fully excavate his connection line in hopes of finding the cause of the problem.
Excavating deeper the plumber on January 14, 2003 discovered that the backup was caused by a City storm sewer that collapsed and severed plaintiff's sanitary connection to the City's sewer line. The plumber repaired plaintiff's damaged line and reconnected it to the City sewer, after which time, the problems stopped. Upon learning for the first time that a collapsed City storm sewer severed his line, plaintiff immediately filed his January 15, 2003 Notice of Claim.
Plaintiff argues he did not file a Notice of Claim earlier because he relied on the City's representations that (i) after each inspection, the City found nothing wrong with its sewer line and that the problem was with plaintiff's individual house connection and (ii) that, after each complaint, the City stated that it would investigate and get back to plaintiff, which it did. Plaintiff argues that this latter representation is akin to justifiable reliance upon written settlement representations so as to allow this Court to extend the time for serving the Notice of Claim, citing GML § 50-e. 5 and Murphy v. Town of Yates, 47 AD2d 807 (4th Dept 1975).
Plaintiff does not explain why his Notice of Claim lists "9/30/01" as the date he sustained his damages. However, as this later date is more helpful to plaintiff on this motion, and there being no objection from the City, the Court uses this date as the operative date from which to analyze the legal issues presented on this motion.
To maintain this action against the City, plaintiff must comply with two provisions. First, he had to file his Notice of Claim within 90 days as provided in GML § 50-e.1(a), unless otherwise extended as provided in GML § 50-e.5. Second, he had to commence this lawsuit within one year and ninety days after the happening of the event upon which the claim is based as provided in GML § 50-i.
Here, the damage claim is based on the backup/flood which occurred, according to plaintiff, on September 30, 2001. CPLR § 203(a) provides that the time within which an action must be commenced shall be computed from the time the cause of action accrued to the time the claim is interposed. Plaintiff argues that his claim did not accrue on "9/30/01" as indicated on his Notice of Claim, but in January 2003, when the plumber discovered the collapsed storm sewer.
In support of his discovery theory, plaintiff relies upon federal cases involving personal injury under the Federal Tort Claims Act. These cases clearly do not apply to this property damage claim governed by New York State law. However, even if the Court were to apply the reasoning advanced in those cases, plaintiff's claim would still be barred.
Even under the federal diligence-discovery rule, accrual is postponed only when there is no basis to know, or by reasonable diligence could not be discovered, that a claim exists. Here, plaintiff was informed numerous times that the City sanitary sewer was clear, and that the problem was with his house line, creating a duty on plaintiff to diligently investigate, which he did not fully do until January 2003. There was no fraud or deceit practiced upon plaintiff by defendant which prevented plaintiff from investigating sooner.
This Court does not view the City's letters sent to plaintiff indicating that a complaint was received and would be investigated to constitute settlement representations upon which plaintiff justifiably relied. However, even if they could be so construed, justifiable reliance is only relevant where the extension of time to file the notice of claim does not exceed the time allowed for the commencement of the action (i.e. one year and ninety days after the cause of action accrued). GML § 50-e. 5; Pierson v. City of New York 56 NY2d 950 (1982).
Pursuant to GML § 50-i, a suit against a municipality must be commenced within one year and ninety days after the happening of the event upon which the claim is based. Defendant argues that the "event" is the City's completed installation of the storm sewer citing Newburgh School v. Stubbins, 85 NY2d 535 (1995). Plaintiff does not identify when the storm sewer was installed or completed. In any event, since plaintiff's cause of action against the City sounds in negligence, his cause of action accrued when the damages occurred. Cubito v. Kreisberg, 69 AD2d 738 (1979) aff'd 51 NY2d 900 (1980). Newburgh, a privity of contract case, does not serve to change this result.
For the reasons set forth above, plaintiff's claim accrued on September 30, 2001. Accordingly, plaintiff would have had to commence this action by December 30, 2002. His commencement of this action on or about May 15, 2003 is clearly untimely. Because this Court is without jurisdiction to extend the time to commence an action, this lawsuit is dismissed. Pierson, supra 56 NY2d 950 (1982).
This constitutes the Decision and Order of this Court. Court attorney to notify all parties of this Decision/Order.