DECISION and ORDER MEMORANDUM — DECISION Dolomite Products Company, Inc. (hereinafter after “Dolomite”) purchased property at the comer of Atlantic Ave and Tiffany Road, Town of Walworth, County of Wayne in the l 960′s. Since that time Dolomite has owned and operated a stone quarry mine at this location. Greystone Golf, LLC (“Greystone”) owns and operates an 18-hole public golf course on Atlantic Ave, Town of Walworth, County of Wayne and State of New York. This property was purchased in 1994 and one of the reasons for securing this property was to allow Dolomite access to retaining ponds for pumping water out of its stone quarry. Water is pumped out of the Walworth Quarry (“dewatering”) to allow Dolomite to mine and excavate stone materials. Without dewatering, the Walworth Quarry would be unusable. The dewatering system at the Walworth Quarry is operated in accordance with a Mined Land Reclamation Permit (Permit ID 8-5444-00001/00001) (the “MLRP”) and a State Pollutant Discharge Elimination System (“SPDES”) Multi-Sector General Permit for Storm water Discharges Associated with Industrial Activity (NYR00B 134) issued by the New York State Department of Environmental Conservation (“DEC”), as well as a Water Withdrawal Permit No.WWR0000434 issued by both DEC and the U.S. Army Corps of Engineers. According to the MLRP issued by DEC, Dolomite has been dewatering at the Walworth Quarry since the 1960s. Plaintiff started farming operations as a tenant farmer on property located on Downs Road, Town of Walworth in the 1990′s, and ultimately purchased the property. Plaintiff noticed the additional moisture (flooding) on this property during his tenancy in the 1990′s. Plaintiff commenced this action in 2017 alleging that the discharge of Dolomite’s water from the mine was flooding his property Dolomite and Walworth filed Motions for Dismissal and Summary Judgement against the Plaintiff in 2022 alleging 1) The First and Second Cause of Actions were barred by the statute of limitations, 2) That Dolomite should be granted Summary Judgment against the Plaintiffs Third Cause of Action due to a lack of credible damages by the Plaintiff. Walworth filed a motion for Summary Judgment against the Plaintiff due to the lack of evidence supporting Plaintiffs theories that the Town of Walworth’s actions of replacing a culvert on Downs Road had caused flooding of Plaintiffs property and that such damages occurred prior to three years before the commencement of this action. This matter having come on to be heard before the Court on October 25, 2022, with all sides submitting Memoranda of Law with supporting papers. Conclusions of Law Pursuant to CPLR §214(4) all actions to recover damages for an injury to property must be commenced within three years of discovery of the damage. The Plaintiff acknowledges that he was aware of additional moisture (flooding) on this property during the 1990′s when he was renting the land. The Plaintiffs responsibility would therefore have been to commence this action within three years of that discovery. Negligence claims involving real property must also be commenced within three years from the date of discovery of the damage. (See CPLR §214-c ). Plaintiff wishes the Court to view the actions of Defendant Dolomite as a continuing trespass which has caused continuous flooding. However the issue of a continuing trespass by way of yearly flooding lacks legal support. A single act, in this case the development of the mine in the 1960′s and the holding ponds in the 1990′s would be the potential cause of the flooding. Successive acts “did not give rise to successive causes of action”. Naccarato v. Sinnott, 176 AD3d 1467, 1468 (3d Dept 2019). The earlier determination ofEPK Props., LLC v. Pfohl Bros. Landfill Site Steering Comm., 159 AD3d 1567 (4th Dept 2018), sets forth the standard that if the damage can be traced to a specific act, then the time starts on the date of the act, and is not lengthened by a continual diversion of water onto the property. Plaintiff also request an injunction against the Defendant Dolomite to discontinue the discharge of water from the mine to the golf course and eventually to his property on Downs Road. Defendant Dolomite has responded with a Motion for Summary Judgement under CPLR 3212. “A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction.” Icy Splash Food & Bev., Inc. V. Henckel, 14 AD3d 595,596 (2nd Dept 2005). The Plaintiffs papers do not supply the Court with any evidence to demonstrate an irreparable injury to the Plaintiff. His papers set forth no definite injury of any kind. Though his papers suggest that the Defendant Dolomite has increased its water output over the years, there is nothing suggesting that any of this additional output travels to the Plaintiffs property. The Plaintiffs First and Second Cause of Action are dismissed as failing to commence the action within three years of discovery of the trespass and negligence, and the request for an injunction is denied. Dolomite also seeks Summary Judgment against the Plaintiffs Third Cause of Action for Damages. Plaintiff contends that the flooding has harmed his ability to farm his property, and decreased his crop yields. There has been no records produced by the Plaintiff to support this claim. Additionally, the Plaintiff on October 23, 2018, filed a petition with DEC requesting that DEC modify the SPDES permit issued for the Walworth Quarry. On December 10, 2018, Defendants opposed the DEC Petition and requested that DEC deny Plaintiff’s request to modify the SPDES Permit. Ten days later, on December 20, 2018, DEC issued a ruling on the DEC Petition, concluding that there was no basis for modifying the SPDES Permit and specifically stated that “the facility is operating in compliance with the terms and conditions of the Mined Land Reclamation permit and SPDES MSGP and, based on information available to the Department, dewatering of the mine does not contribute in any significant manner to flooding on [Plaintiff]‘s property”. Upon all papers and proof submitted the Court finds no cause of action pursuant to CPLR 3211, and therefore, Dolomite’s Motion is granted. The Defendant Town of Walworth has also filed a Motion for Summary Judgement against the Plaintiff on his Fourth Cause of Action, that of the Town installing a culvert on Downs Road. As with the First and Second Cause of Action, pursuant to CPLR 214 any such action must have been commenced within three years of the date of the event that the Plaintiff believed caused the damage. In this case the installation of a replacement culvert in 2013. However the Plaintiff commenced this action in 2017, outside of the three year statute of limitations. Therefore this Cause of Action must also be dismissed. ORDER It is hereby ORDERED, that Defendant Dolomite’s. motion for dismissal of Plaintiff’s First and Second Cause of Action due to untimeliness of action is granted pursuant to CPLR 214; and it is further ORDERED, that Defendant Dolomite’s request for ‘spoilage’ is denied as it is clear from the information the court has received that the Plaintiff did not intentionally destroy any records that he had maintained of his crop production to inhibit this action; and it is further ORDERED, that Defendant Dolomite’s request for Summary Judgment is granted under CPLR 3212 for the Plaintiffs Third Cause of Action for damages; and it is further ORDERED, that the Town of Walworth’s motion for Summary Judgement of the Plaintiffs Fourth Cause of Action is granted; and it is further ORDERED, that the Plaintiffs request for injunctive relief is denied. Dated: October 26, 2022
