State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 31, 2016 521570 

________________________________

NEW YORK STATE ELECTRIC &

GAS CORPORATION,

Appellant,

v MEMORANDUM AND ORDER

COUNTY OF CHEMUNG et al.,

Respondents.

________________________________

Calendar Date: February 19, 2016

Before: Peters, P.J., Garry, Rose, Lynch and Clark, JJ.

__________

Brickley, Sears & Sorrett, PA, Boston, Massachusetts

(Joseph G. Curran of Ward Greenberg Heller & Reidy LLP,

Rochester, of counsel), for appellant.

Barclay Damon, LLP, Elmira (Bryan J. Maggs of counsel), for

County of Chemung, respondent.

Lynch Law Office, PLLC, Syracuse (Ryan L. Abel of counsel),

for Town of Horseheads, respondent.

Lippman O'Connor, Buffalo (Gerard E. O'Connor of counsel),

for Village of Horseheads, respondent.

__________

Lynch, J.

Appeal from an amended order of the Supreme Court (O'Shea,

J.), entered June 4, 2015 in Chemung County, which, among other

things, granted defendants' motions to dismiss the complaint.

Plaintiff provides natural gas to residential and

commercial customers in the Town and Village of Horseheads,
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Chemung County. The natural gas is distributed through gas

mains, pipes and equipment owned by plaintiff that were first

installed underground during the mid to late nineteenth century. 

Defendant County of Chemung owns and operates the Chemung County

Sewer District, which designed and constructed a sewer system in

the 1960s in the Town and Village of Horseheads, which included

underground main and lateral pipes. Defendants Town of

Horseheads and Village of Horseheads each provide water to their

residents through a system of underground water mains and service

lateral pipes. These structures were also constructed in the

1960s. In 2005 and again in January 2011, there were gas

explosions and fires at separate homes in the Village (see

Peterson v New York State Elec. & Gas Corp., 115 AD3d 1029, 1029

[2014]). The subsequent investigation revealed that the

explosion was caused by a leak in the lateral gas line that led

from the gas main to the house, and the leak was caused by stress

corrosion cracking in the lateral line.

Following the 2011 explosion, plaintiff hired Lucius

Pitkin, Inc. (hereinafter Pitkin), a metallurgical consulting

firm, to assess the fitness of its medium pressure gas service

lateral pipes located in the Town and Village. Pitkin analyzed

67 lateral pipes; 49 were selected because they were proximate to

water and/or sewer lines and 18 were selected at random. After

investigating all 67 pipes, Pitkin issued a report in November

2013 wherein it concluded that 39 gas lateral pipes located near

sewer and/or water mains exhibited certain damages, including

damage to pipe coating, accompanied by "loss of metal pipe wall

thickness" and/or "significant deformation." In contrast, Pitkin

concluded that of the 18 randomly selected pipes, 12 pipes that

were not located near water and/or sewer mains pipes did not

exhibit comparable damage. Pitkin recommended that plaintiff

replace all the service laterals in the Town and Village that

were adjacent to water and/or sewer utilities. Plaintiff

accepted the recommendation and the pipes have now been replaced.

In January 2014, plaintiff filed essentially identical

notices of claim against each defendant. By these notices, with

reference to Pitkin's review and the 2005 and 2011 explosions,

plaintiff advised that it was seeking to recover for property

damages resulting from, among other things, defendants'
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interference with plaintiff's lines and/or improper construction

or maintenance of their sewer and/or water mains. In June 2014,

defendants questioned plaintiff's representative at a hearing

held pursuant to General Municipal Law § 50-h. In July 2014,

plaintiff commenced this action seeking, among other things,

compensatory damages for repairing all one-inch and 11⁄4-inch steel

service laterals in the Town and Village and a permanent

injunction requiring defendants to prevent further damage to

plaintiff's service laterals. Defendants each moved to dismiss

the complaint. Plaintiff opposed the motions to dismiss and

cross-moved to amend the notices of claim to include all of the

addresses where it had replaced service laterals. Supreme Court

granted defendants' motions to dismiss and denied plaintiff's

cross motion. Plaintiff now appeals.

A party seeking to commence a tort action against a

municipal corporation must first serve a notice of claim that

states "the time when, the place where and the manner in which

the claims arose" (General Municipal Law § 50-e [2]). The

purpose of the notice is "[t]o enable authorities to investigate,

collect evidence and evaluate the merit of a claim" (Brown v City

of New York, 95 NY2d 389, 392 [2000]; see O'Brien v City of

Syracuse, 54 NY2d 353, 358 [1981]). The notice must

"sufficiently describe when and where a particular accident took

place, but does not have to be detailed with literal nicety or

exactness" (Gagnon v City of Saratoga Springs, 14 AD3d 845, 847

[2005] [internal quotation marks and citations omitted]). 

Further, "[d]eficiencies in the notice, if any, may be cured by

testimony provided at a General Municipal Law § 50-h hearing"

(id.). 

Here, plaintiff advised that its claim was that the Village

and Town "[n]egligent[ly] install[ed], design[ed], engineer[ed],

construct[ed], maintain[ed], servic[ed], operat[ed] and/or

repair[ed] . . . the water main, water lines, water manhole,

water structures, drainage systems or other pipes, utilities or

public works owned or controlled" by the Village and Town;

"[i]nterfer[ed] . . . deflect[ed] . . ., undermin[ed] . . .,

damag[ed] . . . and/or improper[ly] repair[ed] [plaintiff's] gas

utilities" throughout the Village and Town; and "[f]ail[ed] to

safeguard against" or to notify plaintiff of these damages. 
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Purusant to the notice of claim, the affected water structures

and gas utilities were located "throughout [the Village and Town]

generally, including but not limited to the properties identified

[in the Pitkin report]." As to the County, plaintiff claimed

that it "[n]egligent[ly] install[ed], design[ed], engineer[ed],

construct[ed], maint[ained], service[d], operat[ed] and/or

repair[ed its] sewer main, sewer lines, sewer manhole, sewage

structures, drainage system or other pipes, utilities or public

works owned or controlled by [the County] . . .[, i]nterfer[ed]

with, deflect[ed] . . ., undermin[ed] . . ., damage[d] and/or

improper[ly] repair[ed] [plaintiff's] gas utilities" and that the

County "[f]ail[ed] to safeguard against" and notify plaintiff of

such damages. As with the Town and Village, the affected sewer

structures and gas utilities were located "throughout Horseheads,

New York generally, including but not limited to the properties

identified [in the Pitkin report]." 

Following receipt of the notices of claim, defendants 

demanded a hearing pursuant to General Muncipal Law § 50-h. The

Pitkin report was provided and made a part of the hearing record.

Documented therein were the three categories of damages

discovered – deformation of the service lateral, coating damage

to the service lateral and reduction of pipe wall thickness. 

Each of the 39 service laterals exhibited one or more of these

damages and each was proximate to either a water main, sewer main

or both that had been installed beneath the gas laterals. 

Plaintiff also produced its employee, Robert Letson, who was

present during the Pitkin excavation project. Letson testified

that he observed the majority of the 67 excavations and confirmed

that, during the excavation project, asserted third-party damage

was discovered at 39 of the selected locations. Letson was not

able to tell when the specified damage was done and was able to

assume only that, because the water and sewer lines went in after

the gas lateral lines, there was some third-party excavation done

after the gas laterals were installed. Letson further confirmed,

without knowledge of specifics, that based on state regulation,

plaintiff undertook to replace certain laterals that had been

installed before 1971. When asked what third-party activity

caused the damage to the laterals identified in the Pitkin

report, Letson testified that it could have been improper

backfilling, improper excavation, improper support or actual
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contact between a backhoe or shovel and the pipe. 

Initially, we find that plaintiff's notices of claim, as

supplemented by the General Municipal Law § 50-h hearing and the

Pitkin report, were sufficient to permit the municipalities to

investigate the claims asserted with regard to the 39 service

laterals identified in the notices and the report. In our view,

however, the notices were not sufficient to permit inclusion of

the approximately 800 additional properties as alleged in the

complaint. Therefore, plaintiff's action must be limited to the

39 service laterals identified in the January 2014 notices of

claim (see O'Brien v City of Syracuse, 54 NY2d at 358). 

To the extent that we have found that plaintiff's notices

of claim were sufficient, the further question is whether

plaintiff's action with regard to the 39 laterals was timely. 

Pursuant to General Municipal Law § 50-i, plaintiff's action for

damages to real property had to be commenced within one year and

90 days after the occurrence of the event that is the basis for

the claims, not from the date the action accrued (see Klein v

City of Yonkers, 53 NY2d 1011, 1012-1013 [1981]; Serkil, L.L.C. v

City of Troy, 259 AD2d 920, 921-922 [1999], lv denied 93 NY2d 811

[1999]; Nebbia v County of Monroe, 92 AD2d 724, 725 [1983], lv

denied 59 NY2d 603 [1983]). Further, claims against a county for

"invasion of personal or property rights, of every name and

nature, and whether casual or continuing trespass or nuisance and

any other claim for damages arising at law or in equity" must be

commenced in accordance with General Municipal Law § 50-i (County

Law § 52). 

Here, we agree with Supreme Court that defendants

established that the events forming the basis for plaintiff's

claims, the alleged interference with the gas laterals during the

installation of the sewer and water systems, occurred more than

one year and 90 days ago, and we reject plaintiff's claim that

defendants' conduct was continuing. Although, arguably, the

damage that resulted from defendants' interference continued to

exist, the interference was a singular event (see Matter of Witt

v Town of Amherst, 17 AD3d 1030, 1031 [2005]; Sniper v City of

Syracuse, 139 AD2d 93, 95 [1988]; Nebbia v County of Monroe, 92

AD2d at 725). Put differently, even assuming that defendants'
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negligent conduct occurred, it ceased once the water and sewer

main construction was completed. There was no continuing,

offensive act (see Town of Oyster Bay v Lizza Indus., Inc., 22

NY3d 1024, 1031-1032 [2013]; compare Bloomingdales, Inc. v New

York City Tr. Auth., 13 NY3d 61, 65-66 [2009]). Accordingly,

plaintiff's damage claims arising from defendants' allegedly

negligent construction occurring in the 1960s are time-barred

(see Harrington v County of Suffolk, 102 AD3d 923, 924 [2013];

Liston v Town of Newburgh, 90 AD3d 861, 862 [2011]).

On the other hand, we find that plaintiff's claims that

defendants failed to maintain the sewer and water mains are

timely. Generally, each defendant has a continuing duty to

maintain its systems (see De Witt Props. v City of New York, 44

NY2d 417, 423 [1978]; Brandenburg v County of Rockland Sewer

Dist. #1, State of N.Y., 127 AD3d 681, 682 [2015]). To the

extent that plaintiff claims that its damages were caused by

defendants' failure to maintain its sewer and water mains, the

breach of this ongoing duty is the "event" that forms the basis

for the claim (see Kiernan v Thompson, 73 NY2d 840, 841 [1988]). 

Accordingly, Supreme Court should not have dismissed this part of

the first cause of action as untimely. 

By its second cause of action, plaintiff alleges that

defendants' "voluntary acts have and continue to encroach on,

impede and trespass upon [its] rights-of-ways . . . and on its

gas facilities." "The essence of trespass is injury to the right

of possession, and such trespass may occur under the surface of

the ground. A person need not have title to the property but

must simply have sufficient property rights to maintain an action

for trespass" (Bloomingdales, Inc. v New York City Tr. Auth., 13

NY3d at 66 [citation omitted]). Here, at least arguably,

plaintiff identified instances of continuing interference with

its utilities, to wit: a log or pole fastened to a service

lateral and the presence of electrical tape. In Town of Oyster

Bay v Lizza Indus., Inc. (supra), relied upon by Supreme Court,

the rejected trespass claim was based on continuing defects, not

continuing interference or encroachment. Here, in contrast,

plaintiff has alleged that defendants placed these materials on

the service laterals and that the continuing presence of same

caused some damage. To this limited extent, the claim for
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continuing trespass is timely and should not have been dismissed

(see Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d at

66; 509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48,

52-53 [1964]). For the same reasons, we find that plaintiff's

causes of action for public and private nuisance are timely (see

Bloomingdales, Inc. v New York City Tr. Auth., 13 NY3d at 66). 

Supreme Court properly dismissed plaintiff's constitutional

takings and inverse condemnation claims. "On a motion to dismiss

for failure to state a cause of action, courts assume the facts

alleged to be true, view them liberally and in the light most

favorable to the plaintiff, and assess whether the allegations

set forth all of the elements of any cognizable cause of action"

(Torrance Constr., Inc. v Jaques, 127 AD3d 1261, 1263 [2015]; see

McNeary v Niagara Mohawk Power Corp., 286 AD2d 522, 523-524

[2001]). Relevant here, the Fifth Amendment's Takings Clause,

applied to New York through the Fourteenth Amendment, "prohibits

the government from taking private property for public use

without just compensation" and "even a minimal 'permanent

physical occupation of real property'" may be actionable

(Palazzolo v Rhode Island, 533 US 606, 617 [2001], quoting

Loretto v Teleprompter Manhattan CATV Corp., 458 US 419, 427

[1982]; see US Const, 5th, 14th Amends). A cause of action for

inverse condemnation may be stated where it is "alleged that a

defendant 'intruded onto plaintiff's property and interfered with

[its] property rights to such a degree that the conduct amounts

to a constitutional taking'" (McNeary v Niagara Mohawk Power

Corp., 286 AD2d at 524, quoting O'Brien v City of Syracuse, 54

NY2d at 357 [brackets omitted]). Inverse condemnation is a

basis to obtain damages where a municipality has permanently

taken property without exercising its eminent domain authority

and compensating the property owner (see Corsello v Verizon N.Y.,

Inc., 18 NY3d 777, 786 [2012]). As such, there must be

"permanent physical occupation of [the] plaintiff's property

amounting to the exercise of dominion and control thereof"

(McNeary v Niagra Mohawk Power Corp., 286 AD2d at 524 [internal

quotation mark, brackets and citation omitted]; see Greece Ridge,

LLC v State of New York, 130 AD3d 1559, 1560-1561 [2015]). Here,

plaintiff alleges that as a result of defendants' interference,

it was "deprived of all economic value and benefit of [the

service laterals]." As set forth above, however, even if we were
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to accept that defendants' conduct interfered with the service

laterals, based on the Pitkin report and the testimony at the

General Municipal Law § 50-h hearing, plaintiff has no

evidentiary basis to claim that such interference was either

permanent or of the requisite magnitude (see id.). 

Finally, Supreme Court properly dismissed plaintiff's cause

of action seeking permanent injunctive relief. A valid claim for

a permanent injunction may exist where there is both irreparable

harm and no adequate legal remedy (see McDermott v City of

Albany, 309 AD2d 1004, 1005 [2003], lv denied 1 NY3d 509 [2004]). 

Here, we discern no basis for prospective relief inasmuch as

plaintiff has repaired the damaged service laterals, and this

action is supported by the basic premise that defendants had and

have no authority to interfere with plaintiff's facilities. 

Under the circumstances, we agree that plaintiff has an adequate

remedy and is not entitled to injunctive relief. 

We have considered plaintiff's remaining claims and find

them to be either without merit or not preserved for our review. 

Peters, P.J., Garry, Rose and Clark, JJ., concur.

ORDERED that the amended order is modified, on the law,

without costs, by reversing so much thereof as granted

defendants' motions to dismiss the complaint; motions denied as

to the third and fourth causes of action and partially denied as

to the first and second causes of action as more specifically set

forth in this Court's decision; and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court