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Atlantic Express Transportation Corp. v. Weeks Marine

November 26, 2008

ATLANTIC EXPRESS TRANSPORTATION CORP., AND MIDWAY LEASING, INC., PLAINTIFFS
v.
WEEKS MARINE, INC., CONTRACT DRILLING & BLASTING, INC., AND JOHN DOES 1 THROUGH 10, DEFENDANTS



The opinion of the court was delivered by: Joseph J. Maltese, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

The motion of the Defendant, Weeks Marine, Inc. ("Weeks"), for an order dismissing the plaintiffs' complaint on the ground that it is time barred is denied. This court holds that the three year statute of limitations in CPLR § 214(4) does not commence in an action for real property damages caused by the loss of "lateral support" due to the defendant's drilling, blasting and dredging of an adjacent waterway until the damages are visible.

Facts

The plaintiffs, Atlantic Express Transportation Corp. ("Atlantic Express") and Midway Leasing Inc. ("Midway") commenced this action by serving and filing a summons with notice on June 9, 2006. Subsequently, Weeks appeared through its attorneys on June 14, 2006 and demanded a copy of the complaint be served. On or about July 10, 2006 the plaintiffs served a verified complaint alleging negligence and strict liability seeking to recover for property damage on their premises located at 7 North Street, Staten Island, New York that faces the Kill Van Kull Channel ("Kill van Kull") which forms a state border between Staten Island (Richmond County), New York and Hudson and Union Counties in New Jersey. In February 2000 the U.S. Army Corps of Engineers contracted with Weeks to deepen the Kill van Kull. Weeks drilled, blasted and dredged the Kill van Kull during 2000 - 2001 as part of the "Navigation Improvement Project," so that ships and barges may traverse more easily through the channel.

Atlantic Express contacted Weeks by telephone on March 30, 2001 to advise that it sustained damage to its premises in the form of window and roof leakage as a result of the drilling, blasting and dredging in the Kill van Kull by Weeks' personnel.

Weeks informed Atlantic Express by a letter dated October 1, 2001 that the blasting activities in the Kill van Kull ended on September 13, 2001, and that its seismic expert concluded that the blasting did not cause that damage to the plaintiffs' property.

In response to an additional complaint made by the plaintiff, Weeks generated a Vibration Complaint Report dated June 23, 2003. The report included the observations of Weeks' employees, Jeffrey Walker and Joshua Howe, that described damage to Atlantic Express' property as: "blacktop roadway sinking into water. Approx 2 weeks ago hole appeared in blacktop."

On October 28, 2003, Atlantic Express wrote to its attorneys referencing a previous letter dated August 8, 2003 directed to Jeffrey Walker inquiring as to the status of its complaint. The letter states in pertinent part:

". . . the damages to our property are:

1. Shifting of rock and soil causing erosion and sinking of blacktop on walkway along gated area by waterway.

2. Cracks on building exterior

3. Collapse of pier

4. Office ceiling cracks ...


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