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[T] Batkier v. City University of New York9/15/2003
This opinion is uncorrected and will not be published in the printed Official Reports.
Upon the foregoing papers, defendant City University of New York (hereinafter CUNY) and Kingsborough Community College (hereinafter KCC) move for an order pursuant to CPLR §3211(a)(7) and CPLR §3212 dismissing plaintiffs' complaint for failure to comply with General Municipal Law sections 50-e and 50-i. Said defendants also move for an order granting summary judgment in their favor pursuant to CPLR §3212 claiming that plaintiffs' action is time barred by the one year and ninety day statute of limitations requirement of General Municipal Law section 50-i. Plaintiffs oppose the motion.
This is an action brought by the plaintiffs for alleged personal injuries and property damage caused by construction work performed by defendants near plaintiffs' homes in Brooklyn, New York. Joseph Batkier owned a home at 1804 Shore Boulevard, Oleg Gorelik's home is at 1812 Shore Boulevard, Madeline Klings' home is at 181 Pembroke Street, Denis Trubitsky's home is at 171 Pembroke Street, and Lubov Pyatigorskaya's home is at 175 Pembroke Street. All of these homes are located within the immediate vicinity of KCC. Specifically, plaintiffs allege that defendant Plato General Construction performed demolition and construction work for KCC near plaintiffs' respective homes and caused the release of noxious fumes and unhealthy odors adversely affecting their health. Plaintiffs also allege, among other things, that the continuous demolition and construction work caused significant property damage including cracks in the structure and damage to the foundation of their respective homes.
On April 14, 2000, plaintiffs served a Notice of Claim upon CUNY, alleging that the demolition activities complained of began on or about November of 1999. Plaintiffs indicated in the Notice of Claim, among other allegations, that defendants' construction and demolition activities caused noxious and unhealthy odors to be released into the environment damaging their homes and impairing their health. On August 15, 2002, plaintiffs served a summons and complaint on CUNY and Plato General Construction. At the same time plaintiffs also filed a second Notice of Claim on CUNY.
General Municipal Law §50-e(1)(a) states in pertinent part:
In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action or special proceeding against a public corporation... the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises...
General Municipal Law §50-I(1)(c) states in pertinent part:
No action or special proceeding shall be prosecuted or maintained against a city unless the action or proceeding shall be commenced within one year and ninety days after the happening of the event upon which the claim is based..
CPLR §214-c(3) states in pertinent part:
For the purposes of §50-e and §50-I of the General Municipal Law... a claim or 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 shall be deemed to have accrued on the date when through the exercise of reasonable diligence the injury should have been discovered, whichever is earlier.
In a toxic tort action, such as the case at bar, the statute of limitations is computed from the date plaintiff discovers the injury or from the date when plaintiff should have discovered the injury through the exercise of reasonable diligence, w
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