What could be more frustrating than learning that your property has been damaged from contamination, but you can’t recover any money because you didn’t start legal action soon enough? That’s what happened to 100 homeowners in a hamlet of Bay Shore who claimed injuries to their property from contamination allegedly coming from the site of a former manufactured gas plant and from the remediation work conducted by the defendant corporations.
In cases involving property damage, the statute of limitations (that is, the time you have to start a law suit) expires after three years; the general rule is that the clock starts to run when the harm to the property occurred; some limited exceptions, for “latent” injuries (ones not apparent to the naked eye) were introduced into law to account for the unseen injuries caused by certain environmental harms. After the three years have passed, a claim for property damage is no longer available. But how do you know when your property was first “injured”? In New York, the law provides that the statute of limitations begins to run from the date of discovery of the injury to the property or the date when the homeowner should have discovered the injury through exercising “reasonable due diligence,” whichever is earlier.
In November 2017, a New York appellate court held that the three year statute of limitations prevented the homeowners from bringing a lawsuit against the companies that were cleaning up the site of an old manufactured gas plant. The homeowners filed the complaint in 2012, but the court determined defendants demonstrated that the homeowners were aware of the potential property damage as far back as 1999.
Specifically, defendants presented evidence that their efforts to inform the community about contamination and remediation efforts began in 1999. From 1999 to 2002, defendants apparently conducted door-to-door canvasing campaigns to inform the community of contamination issues, mailed surveys and questionnaires, tested properties for contaminant intrusion, mailed newsletters periodically providing information about the progress of the cleanup, and held public meetings. More significantly – reducing the proof issue of whether defendants actually did what they said they did when they said they did it -, the remediation process was conducted under the supervision of the New York State Department of Environmental Conservation in accordance with a consent order entered into on September 30, 1999!
The court found that defendants demonstrated that the homeowners had an “objective level of awareness of the possible dangers and consequences of the potential contamination,” placing them on notice of injury to their properties and began running the three-year statute of limitations. Ultimately, the homeowners were unable to show that the statute of limitations had not run or that an exception to the rule applied to them.
The court’s finding that defendant companies’ various notices to the homeowners and public meetings were sufficient to establish an objective awareness of contamination sets a rather low (but not unreasonable) bar for homeowners to be aware of any potential latent property damage. Such an objective knowledge of property damage (or reason to know of it) would, as noted above, trigger the clock for statute of limitations purposes. The important takeaway here is that if you’re a homeowner and are made aware of potential contamination to your property, you should not wait until that contamination is confirmed (by analytical data, difficulty in selling your home or otherwise) in order to consider bringing a lawsuit for property damages.
Read the Appellate Division, Second Department’s decision in Sullivan v. Keyspan here.
Call the attorneys of Periconi, LLC at (212) 213-5500 if you are considering filing a complaint for property damages due to contamination or if you have been sued for allegedly contaminating property.