Construction often leads to an increase in the range, or a change in the pitch, of impermeable surfaces (such as driveways and parking areas). With a concomitant increase in water flow. And damage to contiguous properties. But what is the injured neighbor to do? As a recent case illustrates, whether or not claims for negligence, trespass, or nuisance survive a motion to dismiss may depend more on” timing” than “substance.”

Joseph Ubiles and Bernice Ubiles owned and lived at 429 West 147th Street. Ndingara Ngardingabe and Julie Camiuli owned the lots next door at 431-433 West 147th Street, where he lived, and she worked. Lots #431 and #433 were merged in 1991. And the former lot # 431 (adjacent to the Ubiles’ property) was used as a driveway that was constructed in 1989 and paved in 2009.

The Ubiles sued their neighbors in 2017, alleging that water runoff from their abutting property caused water damage to their residence near the parties’ common property line. In particular, the Ubiles alleged that the expansion of the paved portion of lot #431 in April 2009 was negligently undertaken and increased the runoff onto their property.

The neighbors moved to dismiss the complaint as barred by the three-year statute of limitations. The Ubiles countered that their claim was timely under the continuous wrong doctrine.

The continuous wrong doctrine is an exception to the general rule that the statute of limitations runs from the time of the breach even though no damage occurred at that time. The doctrine applies where there is a series of continuing wrongs and serves to toll the running of a limitations period to the date of the commission of the last wrong act. Where applicable, the doctrine will save all claims for recovery of damages but only to the extent of the wrongs committed within the applicable statute of limitations.

Supreme Court dismissed the complaint as time-barred. Because the record showed that the Ubiles had experienced water runoff problems as early as 2006. In fact, the Ubiles built a wall in 2006 for “drainage enhancement,” for which they needed access to the property next door. And the continuous wrong doctrine did not protect trespass and nuisance claims that were apparent more than three years prior to the filing of the suit. The Ubiles appealed.

On appeal, the court found that Supreme Court properly dismissed the negligence claim as time-barred by the applicable three-year statute of limitations. There were no allegations to indicate any work was done on the driveway following April 2009. And evidence showed that the Ubiles were experiencing water problems at that time. And, at that time, they submitted water damage claims to both their property insurer and their neighbors’ property insurer.

The Ubiles’ claims for nuisance and trespass were also properly dismissed as they were predicated upon the same 2009 driveway-paving improvements. And their allegations were insufficient to indicate a continuing wrong. Continuing trespass and nuisance generally give rise to successive causes of action that accrue each time a wrong is committed. Here, damages were claimed due to surface water flowing from one property to another. Thus, the Ubiles were required (but failed to allege) that the improvements on the land next door caused surface water to be diverted; damages resulted; and either the neighbor diverted the surface water by artificial means or the claimed improvements were not made in good faith so as to enhance the usefulness of such land.

Here, there were no allegations to support a claim that the neighbors had diverted water by artificial means or that the improvements they made to their driveway in 2009 were other than in good faith. There were no allegations or proof from the Ubiles or their experts (an engineer and architect) to indicate that the driveway was constructed with a deliberate pitch towards their property for the express purpose of diverting water onto their land.