Johnson v. Marianetti, 202 A.D.2d 970 (N.Y. App. Div. 1994). · Go Syfert
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Johnson v. Marianetti, 202 A.D.2d 970 (N.Y. App. Div. 1994). Cases Citing This Book View Copy Cite
11 citation events (7 in the last 25 years) across 1 distinct court.
Strongest positive: Liston v. Town of Newburgh (nyappdiv, 2011-12-20)
Top citers, strongest first. 4 distinct citers. How cited ↗
discussed Cited as authority (rule) Liston v. Town of Newburgh
N.Y. App. Div. · 2011 · confidence medium
Under these circumstances, “the happening of the event upon which the claim [was] based” (General Municipal Law § 50-i [1]) was the May 2007 storm drainage installation (see Klein v City of Yonkers, 53 NY2d 1011, 1014 [1981]; Johnson v Marianetti, 202 AD2d 970, 970-971 [1994]; Scarzfava v City of Newburgh, 255 AD2d 436 [1998]; Pleasant Ridge Townhouses Homeowners’ Assn. v T & D Constr.
discussed Cited as authority (rule) Witt v. Merrill
N.Y. App. Div. · 2005 · confidence medium
Contrary to the contention of plaintiff, her cause of action against defendant accrued when defendant completed his work, i.e., when he conducted his soil study and issued his report to plaintiff in 1993, not in January 2003 when plaintiff discovered the damage to the foundation of her residence (s ee Gelwicks v Campbell, 257 AD2d 601, 602 [1999]; Johnson v Marianetti, 202 AD2d 970, 970-971 [1994]).
discussed Cited as authority (rule) Ules v. City of Utica
N.Y. App. Div. · 2003 · confidence medium
The action is therefore governed by section 50-i (1) (see generally Ruggiero v Phillips, 292 AD2d 41, 43-44 [2002]; Princess Video v City of New York, 211 AD2d 300, 301 [2000], lv denied 96 NY2d 705 [2001]; Johnson v Marianetti, 202 AD2d 970, 970-971 [1994]), which requires in relevant part that the action “be commenced within one year and ninety days after the happening of the event upon which the claim is based” (§ 50-i [1] [c]).
discussed Cited "see, e.g." Condello v. Town of Irondequoit
N.Y. App. Div. · 1999 · signal: see also · confidence low
Consequently, the action was not commenced within one year and 90 days “after the happening of the event upon which the claim is based” (General Municipal Law § 50-i [1] [c]; see, Klein v City of Yonkers, 53 NY2d 1011, 1012 ; Nebbia v County of Monroe, 92 AD2d 724, 725 , lv denied 59 NY2d 603 ; see also, Johnson v Marianetti, 202 AD2d 970 ).
Retrieving the full opinion text from the archive…
Nancy B. Johnson
v.
Martin Marianetti, and City of Canandaigua
Appellate Division of the Supreme Court of the State of New York.
Mar 11, 1994.
202 A.D.2d 970
Cited by 11 opinions  |  Published

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in denying defendant Marianetti’s motion to dismiss the complaint as barred by the three-year Statute of Limitations. Plaintiff alleges that Marianetti negligently altered a drainage pipe while constructing a house on the property adjacent to plaintiffs property in 1984, thereby causing ground water to be diverted onto plaintiffs property. Plaintiff alleges that the cause of action accrued in 1992 when she discovered that the basement wall of her home had cracked and showed signs of collapse. "The general rule * * * is that an action for injury to * * * property accrues at the time the injury is sustained, notwithstanding the actual damage is not suffered until later” (75 NY Jur 2d, Limitations and Laches, § 195).

In certain construction cases, the cause of action has been held to accrue after construction, when the injury is sustained (see, Mark v Eshkar, 194 AD2d 356, 357 [structural damage to a building from the loss of lateral support]; Durant v Grange Silo Co., 12 AD2d 694 [collapse of a structure]). In this case, however, the "injury” occurred when Marianetti altered the drainage pipe causing water to flow onto plaintiff’s property (see, City of Niagara Falls v Rudolph, 97 AD2d 971). Accordingly, plaintiffs claim against Marianetti was barred by the Statute of Limitations.

Supreme Court properly dismissed plaintiffs complaint against defendant City of Canandaigua as time-barred because "the happening of the event upon which the claim [was] based” (General Municipal Law § 50-i [1]) was the alleged negligent inspection by the City in 1984 (see, Klein v City of [*971] Yonkers, 53 NY2d 1011; Nebbia v County of Monroe, 92 AD2d 724, lv denied 59 NY2d 603).

Thus, the order is modified by granting Marianetti’s motion to dismiss the complaint. (Appeals from Order of Supreme Court, Ontario County, Harvey, J. — Dismiss Complaint.) Present — Green, J. P., Pine, Callahan, Doerr and Boehm, JJ.