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Rimany v. Town of Dover

April 20, 2010

DOUGLAS RIMANY, ET AL., APPELLANTS,
v.
TOWN OF DOVER, RESPONDENT, ET AL., DEFENDANT.



In an action, inter alia, to recover damages for injury to property, the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Pagones, J.), dated June 23, 2008, as granted the converted branch of the motion of the defendant Town of Dover which was for summary judgment dismissing the complaint insofar as asserted against it on the ground that it is barred by the statute of limitations, (2) from a judgment of the same court entered July 14, 2008, which, upon the order, is in favor of the defendant Town of Dover and against them dismissing, with prejudice, the complaint insofar as asserted against that defendant, and (3), as limited by their brief, from so much of an order of the same court dated September 30, 2008, as, upon renewal, adhered to so much of the order dated June 23, 2008, as granted the converted branch of the motion of the Town of Dover which was for summary judgment dismissing the complaint insofar as asserted against it on the ground that it is barred by the statute of limitations, and further determined that the complaint also should be dismissed insofar as asserted against the Town for failure to state a cause of action.

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 Official Reports.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, HOWARD MILLER RANDALL T. ENG, JJ.

(Index No. 7693/07)

DECISION & ORDER

ORDERED the appeal from the order dated June 23, 2008, is dismissed; and it is further,

ORDERED that the judgment is affirmed, and the order dated September 30, 2008, is vacated; and it is further,

ORDERED that the appeal from the order dated September 30, 2008, is dismissed as academic in light of our determination on the appeal from the judgment; and it is further,

ORDERED that one bill of costs is awarded to the defendant Town of Dover payable by the respondent.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the order dated June 23, 2008, are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]).

The plaintiffs are the owners of certain real property located in the defendant Town of Dover. The plaintiffs purchased the property in 2004. The property, which is improved with a single-family house, is located adjacent to the "Ten Mile River." The defendant Powell Road Mobile Home Park, Inc. (hereinafter Powell), is the owner of a mobile home park situated on real property located on the opposite side of the river. In or around 1999, pursuant to permits issued by the Town, Powell constructed a flood wall on its property adjacent to the river.

On November 7, 2007, the plaintiffs commenced the instant action against the Town and Powell, inter alia, to recover damages for injury to property. In their complaint, the plaintiffs alleged that, as a result of the flood wall, beginning in January 2005, and on several occasions thereafter, their property sustained extensive and repeated flooding from the waters of the river, causing substantial damage to the property.

In the first and second causes of action asserted against both of the defendants pursuant to 42 USC §§ 1983 and 1988, respectively, inter alia, the plaintiffs sought to recover damages for the taking of their property without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution, and attorneys' fees. In their third cause of action, similarly asserted against both of the defendants, the plaintiffs sought to recover damages for the violation of New York State Navigation Law § 31, which requires a permit before excavating or placing fill in the navigable waters of the State. In their fourth cause of action, also asserted against both of the defendants, the plaintiffs sought to recover punitive damages.

After joinder of issue, the Town moved to dismiss the complaint insofar as asserted against it on the grounds that, inter alia, it is barred by the statute of limitations and fails to state a cause of action. The Supreme Court, upon converting that branch of the Town's motion which was to dismiss the complaint insofar as asserted against it on the ground that they are barred by the statute of limitations into one for summary judgment dismissing the complaint insofar as asserted against it on that ground, granted the converted branch of the Town's motion. Subsequently, the court ...


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