The following papers numbered E8-E18, E19-E20, E22-E23 read on this motion by Defendant Celatech Construction Corp. A.K.A. Celatech Construction Group Corp. (hereinafter “Celatech”) for an order pursuant to CPLR Rule 3211(a)(5) dismissing the complaint and all causes of action asserted against Defendant Celatech, as the statute of limitations has run; and, pursuant to CPLR Rule 3211(a)(7) dismissing Plaintiffs’ second cause of action for negligent infliction of emotional distress, as Plaintiff has failed to state a cause of action. Papers Numbered Notice of Motion-Affirmation-Exhibits E8-E18 Affirmation in Opposition E19-E20 Reply Affirmation E22-E23 u pon the foregoing papers it is ordered that Defendant Celatech’s motion is granted as follows: Plaintiffs commenced this action by filing a summons and verified complaint on December 10, 2020 wherein they seem to assert a cause of action for property damages and emotional distress and injury. Plaintiffs allege that from April 1, 2017 to the present, Defendants caused damages to their property located at 25-34 22nd Street in Astoria, Queens County. Defendant Un Lee contracted with Defendant Celatech to demolish a building adjacent to Plaintiffs’ property located at 25-32 22nd Street in Astoria, Queens County. In the first branch of Defendant Celatech’s motion, Defendant Celatech moves to dismiss the first cause of action for property damages asserted against Defendant Celatech as timebarred. In support of their motion, Defendant Celatech has submitted, among other things, the following: an affidavit by Nick Cela, principal of Defendant Celatech, application details from New York City Department of Buildings (“DOB”), and work permit data from the DOB. In his affidavit, Mr. Cela stated that Defendant Un Lee contracted Defendant Celatech to demolish a building that stood on Defendant Un Lee’s property, which is located next to Plaintiffs’ property. Mr. Cela further stated that the project was completed on December 3, 2016 and Defendant Celatech did not perform any other project work after December 3, 2016. Plaintiffs oppose. “A defendant who seeks dismissal of a complaint pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired” (Sullivan v. Keyspan Corp., 155 AD3d 804, 805, 64 N.Y.S.3d 82, quoting Benjamin v. Keyspan Corp., 104 AD3d 891, 892, 963 N.Y.S.2d 128 [internal quotation marks omitted]; see East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 90 AD3d 821, 822, 935 N.Y.S.2d 616). “The burden then shifts to the plaintiff to aver evidentiary facts establishing that his or her cause of action falls within an exception to the statute of limitations, or raising [a question] of fact as to whether such an exception applies, or [as to whether] the cause of action was interposed within the applicable statute of limitations” (Sullivan v. Keyspan Corp., 155 AD3d at 805 [citation omitted]; see Texeria v. BAB Nuclear Radiology, P.C., 43 AD3d 403, 405, 840 N.Y.S.2d 417). Generally, an action to recover damages for injury to real property must be commenced within three years of accrual (see CPLR 214[4]; Verizon N.Y. Inc. v. Consolidated Edison, Inc., 127 AD3d 621, 621-622, 8 N.Y.S.3d 139). A cause of action alleging property damage accrues “‘when the damage [is] apparent’” (Russell v. Dunbar, 40 AD3d 952, 953, 838 N.Y.S.2d 97, quoting Alamio v. Town of Rockland, 302 AD2d 842, 844, 755 N.Y.S.2d 754). Generally, the statute of limitations begins to run at the first sign of damage, even when the damage gets progressively worse. (see Atlantic Express Transp. Corp. v. Weeks Mar., Inc., 68 AD3d 903, 892 N.Y.S.2d 437 (2d Dept 2009) (damage to building from nearby blasting accrued when roof leak reported, not when additional damage, including cracks and molding separating from wall, developed); Vitale v. S&P 26 Dev. Assoc. LLC, 2009 NY Misc LEXIS 6071, at *3-4 (damage to party wall apparent during construction when holes and cracks appeared even though “continuing weakening” of wall alleged); Koelling v. D’Angelo, 38 Misc 3d 1208[A], 967 N.Y.S.2d 867, 2013 NY Slip Op 50021[U] (damage to driveway caused by neighbor’s tree roots apparent years earlier, even if it was initially de minimis and became “exceedingly worse” in recent years)). Further, damage claims accrue when damage is first observed, even where the extent of the damage may not be known. (see Reyes-Dawson, 74 AD3d at 418 (plaintiff knew or should have known, when she first complained about installation of fireplace in party wall, that damage could be structural and her failure to further investigate did not extend limitations period); Alamio v. Town of Rockland, 302 AD2d 842, 755 N.Y.S.2d 754 (claim untimely where plaintiff observed water stains on walls years ago and took no action to investigate)). When damage is to the surface of property, the statute of limitations commences when “‘the damage has become visible through the development of injuries to the surface’” of plaintiff’s property. (Mark v. Eshkar, 194 AD2d at 357; see Public Serv. Mut. Ins. Co., 96 AD3d at 474 (flood damage apparent when it occurred)). Here, Defendant Celatech demonstrated that they are entitled to dismissal pursuant to CPLR 3211(a)(5). The Court further finds Plaintiffs failed to raise an issue of fact as to whether the statute of limitations was tolled or otherwise inapplicable (see Zaborowski v. Local 74, Serv. Empls. Intl. Union, AFL-CIO, 91 AD3d 768 [2d Dept 2012]; Rakusin v. Miano, 84 AD3d 1051 [2d Dept 2011]). The only date mentioned by Plaintiffs in the complaint regarding the property damage is April 1, 2017, and there is no indication that the damage became apparent at any time other than April 1, 2017. As such, the damage was apparent on April 1, 2017 and this action was commenced on December 10, 2020, three years, eight months, and 9 days later. Consequently, the property damage claim is barred. Moreover, this Court notes that Plaintiff argued that summary judgment is not warranted even though this is motion to dismiss pursuant to CPLR 3211. Significantly, irrespective of submission of any contracts, Mr. Cela stated that no work was done after December 3, 2016. Accordingly, Defendant Celatech’s motion to dismiss the complaint for Plaintiffs’ first cause of action for property damages asserted against Defendant Celatech as time-barred is granted. The branch of the motion seeking to dismiss Plaintiffs’ second cause of action for negligent infliction of emotional distress as Plaintiff has failed to state a cause of action pursuant to CPLR 3211(a)(7) is granted. The complaint does not significantly distinguish, and it is not this Court’s place to decipher, the cause of action; however, although poorly drafted, it appears to this Court that the Plaintiffs’ second cause of action is for negligent inflection of emotional distress, and it will be treated accordingly. When a party moves under CPLR 3211(a)(7) for dismissal based on the failure to state a cause of action, the test is whether the pleading states a cause of action, not whether the plaintiff has a cause of action (Sokol v. Leader, 74 AD3d 1180 [2d Dept 2010]). A Court must determine whether, accepting the facts as alleged in the pleading as true and according to the plaintiff the benefit of every favorable inference, those facts fit within any cognizable legal theory (Leon v. Martinez, 84 NY2d 83 [1994]). The plaintiff may submit affidavits and evidentiary material on a CPLR 3211(a)(7) motion for the limited purpose of correcting defects in the complaint (See, Rovello v. Orofino Realty Co., Inc., 40 NY2d 633 [1976]; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159 [2d Dept. 1997]). Nevertheless, while typically the pleaded facts will be presumed to be true and accorded a favorable inference, “allegations consisting of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence [will] not [be] entitled to such consideration.” (Roberts v. Pollack, 92 AD2d 440 [1st Dept. 1983]). To state a claim for negligent infliction of emotional distress, plaintiffs must allege: (1) that he or she was owed a duty by defendant, (2) the duty was negligently breached, (3) the breach (a) caused plaintiff to fear for his or her own safety, or (b) unreasonably endangered his or her physical safety (see Jason v. Krey, 60 AD3d 735, 736 [2d Dept 2009]). Here, Plaintiffs have failed to adequately establish their claim for emotional distress. In the complaint, Plaintiffs allege that Defendants’ negligence and failure to remedy the conditions at said property have caused Plaintiffs to suffer, mental, emotional and financial distress and Plaintiffs’ quality of living has been directly affected due to the negligence of Defendants. In opposition to Defendant Celatech’s motion, Plaintiffs only submitted an affirmation from their attorney that provided no other support or evidence for their emotional distress claim that may supplement or cure the defects in Plaintiffs’ complaint. Consequently, the Court is limited to the bare assertions in the complaint, and these are no more than alleged negligent destruction of property, which do not establish a claim for negligent infliction of emotional distress. Id. Accordingly, Defendant Celatech’s motion to dismiss Plaintiff’s second cause of action for negligent infliction of emotional distress pursuant to CPLR 3211(a)(7) is granted. Based upon the foregoing, the complaint is dismissed in its entirety as against Defendant Celatech. Dated: October 6, 2021
