SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

578.2 

CA 14-01480 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ. 

 

STEPHEN CLENDENIN AND CAROL CLENDENIN, 

PLAINTIFFS-APPELLANTS, 

V MEMORANDUM AND ORDER

TOWN OF MILO, COLBY PETERSEN, GARY BOARDMAN, 

YATES COUNTY SOIL AND WATER CONSERVATION

DISTRICT, DEFENDANTS-RESPONDENTS, 

ET AL., DEFENDANTS. 

 

ADORANTE, TURNER & ASSOC., CAMILLUS (ANTHONY P. ADORANTE OF COUNSEL),

FOR PLAINTIFFS-APPELLANTS. 

LACY KATZEN LLP, ROCHESTER (JOHN M. WELLS OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS COLBY PETERSEN AND YATES COUNTY SOIL AND WATER

CONSERVATION DISTRICT. 

LIPPMAN O’CONNOR, BUFFALO (THOMAS D. SEAMAN OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS TOWN OF MILO AND GARY BOARDMAN. 

 

Appeal from an order of the Supreme Court, Yates County (Dennis

F. Bender, A.J.), entered November 8, 2013. The order granted the

motions of defendants Town of Milo, Colby Petersen, Gary Boardman and

Yates County Soil and Water Conservation District for summary

judgment. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages

arising from an allegedly defective septic system on residential

property they purchased from defendants Raymond and Rose Mangan in

June 2009. The complaint alleges that the Mangans engaged in fraud by

failing to disclose to plaintiffs the defective septic system, and

that defendant Yates County Soil and Water Conservation District

(District), through its employee, defendant Colby Petersen,

negligently inspected the septic system on May 4, 2009. Petersen

found that the septic system “passed” his inspection and therefore

issued the Mangans a “certificate of inspection.” Although plaintiffs

were informed prior to closing by their property inspector, a

professional engineer, that there was a problem with the septic

system, plaintiffs allege that they relied on the District’s

“certificate of inspection” and therefore purchased the property

despite their own inspector’s concerns. The complaint, as amplified
-2- 578.2 

CA 14-01480 

by the bill of particulars, further alleges that defendant Town of

Milo (Town) was negligent in issuing a certificate of occupancy for

the property when it was built in 1998, inasmuch as the septic system

was defective when it was initially installed. Plaintiffs seek

$21,065 in damages, which is the amount they expended to have a new

septic system installed on the property. 

We conclude that Supreme Court properly granted the motions of

the District and the Town seeking summary judgment dismissing the

complaint as against them and their employees. As the court

concluded, the statute of limitations with respect to the negligence

causes of action had expired by the time plaintiffs commenced this

action and, contrary to plaintiffs’ contention, CPLR 214-c does not

apply. CPLR 214-c (1) provides that “the three-year period within

which an action to recover damages for personal injury or injury to

property caused by the latent effects of exposure to any substance or

combination of substances, in any form, upon or within the body or

upon or within property must be commenced shall be computed from the

date of discovery of the injury by the plaintiff or from the date when

through the exercise of reasonable diligence such injury should have

been discovered by the plaintiff, whichever is earlier” [emphasis

added]). 

Here, plaintiffs do not seek “damages for personal injury or

injury to property” (CPLR 214-c [1]); rather, they seek to be

compensated for the cost of replacing an allegedly defective septic

system. Thus, section 214-c is inapplicable to this action (see

generally Germantown Cent. Sch. Dist. v Clark, Clark, Millis & Gilson,

100 NY2d 202, 206; Manhattanville Coll. v James John Romeo Consulting

Engr., P.C., 5 AD3d 637, 640-641). Moreover, the Court of Appeals, in

interpreting section 214-c, has made clear that it applies only to

toxic torts (see Blanco v American Tel. & Tel. Co., 90 NY2d 757, 767),

and plaintiffs’ claims have nothing do to with toxic substances. 

Instead, plaintiffs merely allege that the septic system was defective

and that defendants failed to identify the defects during their

inspections. We thus conclude that the court properly determined that

the causes of action against the moving defendants are time-barred.

We have reviewed plaintiffs’ remaining contentions and conclude

that they lack merit. 

Entered: June 12, 2015 Frances E. Cafarell

Clerk of the Court