The following papers numbered 1 to 19 were read on this motion by the defendant for an order dismissing the plaintiff's complaint pursuant to CPLR 3211(a)(5) on the ground that the statute of limitations expired and for summary judgment pursuant to CPLR 3212; and plaintiff's cross-motion for an order compelling defendant to pay for and compensate the plaintiff for repairs and damages caused by trees on the defendant's property:

Papers Numbered

Notice of Motion-Affidavits-Memo of Law..............1 - 7

Cross-Motion and Affirmation in Opposition...........8 - 14

Affirmation in Opposition to Cross-Motion ..........15 - 19

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Plaintiff, Klaus Koelling, is the owner of premises located at 166-44 25th Avenue, Whitestone, New York. The defendant, Frank D'Angelo, is the owner of adjoining property located at 166-48 25th Street, Whitestone, New York. Plaintiff commenced this action against the defendant, his next door neighbor, by filing a summons and complaint on December 1, 2010. The complaint seeks damages based upon two causes of action for trespass and nuisance. The plaintiff alleges that roots from the trees on the defendant's property caused the plaintiff's driveway to become [*2]raised, cracked and damaged. Issue was joined by service of the defendant's answer dated March 7, 2011. The plaintiff filed a note of issue on August 17, 2012.

In his verified bill of particulars the plaintiff states that the damage "began many years ago; some trees removed but one was left causing the damages which continued until the present." Plaintiff states that actual notice is claimed "many years ago and ongoing." Plaintiff is also claiming constructive notice, "ongoing." Plaintiff also states that he advised the defendant of the alleged condition and the damages "several times, personally over the last many years as well as the defendant's brother."

At his examination before trial, taken on January 25, 2012, plaintiff, Klaus Koelling, testified that he has been living at the premises located at 166-44 25th Avenue, Whitestone, New York, since 1961. He first moved into the premises with his mother and he inherited the property when she died in 1992. He states that the next door property is owned by the defendant, Frank D'Angelo, but that D'Angelo does not live on the premises and leases the house. He testified that his driveway is to the right of his house abutting Mr. D'Angelo's property. The driveway leads to plaintiff's one-car brick garage which is at the end of his driveway behind the main house.

The plaintiff identified photographs of the property which were taken in 2010. The photographs depict bushes from Mr. D'Angelo's property which are up against plaintiff's garage, and also depict an area of his driveway where the concrete blocks are out of alignment and have shifted. Plaintiff testified that in his opinion it was the roots from defendant's trees which grew underneath a portion of his concrete driveway causing it to shift. When asked when he first noticed that there was a misalignment he stated that it was in the "early, mid 1990's, and probably before." He stated that he knew there was a misalignment because he was tripping on it and the problem taken in 2009 and approximated that the slabs were now raised approximately 3 ½ to 4 inches. He stated that he first brought the problem to the attention of Frank D'Angelo's brother, Raymond, in the 1980's at which time plaintiff explained the damage to his driveway and asked to have the trees cut down. He stated that in response, a tree had been cut down by D'Angelo but that the root system of the stump was left. Plaintiff testified that in 2009 Frank D'Angelo told him that the his problem was caused by the footings on his garage and the drainage in the area not the roots of the trees. Plaintiff identified a tree that he believed to be causing the problem but stated that the tree was cut down in 2010 or 2011. He testified that he complained to Frank D'Angelo about the problem in a conversation about ten [*3]years ago. He stated that he told D'Angelo at that time that his trees were causing damage to the slabs in front of his garage. He stated at that time the height difference was about one inch as opposed to the 3 ½ height differential that it is now.

The plaintiff testified further that he never had an engineer come to determine what actually was causing the cement to become raised. When asked why he set forth an amount of damages of $100,000 in the complaint he stated that he did not know how that amount was arrived at. He stated that he does not know what it would cost for the entire driveway to be replaced. He also stated that he did not attempt to cut the roots on his own property that he believed was causing the damage.

Defendant, Frank D'Angelo, was deposed on January 25, 2012. At that time he testified that he is the owner of the property located at 166-48 25th Avenue, Whitestone, New York. He stated that he moved out of those premises in 1985. From 1985 until 2004 his parents owned the property and he inherited it in 2004. He stated that he never had any discussion with the plaintiff regarding issues with his driveway. He stated that in June 2010 he received a letter from plaintiff's attorney complaining about the tree. In November, 2010 as a result of the plaintiff's letter he arranged to have the tree taken down. He was not aware of any damage caused by the tree.

In the instant motion, defendant contends that the causes of action sounding in negligence, trespass and nuisance based upon property damage must be dismissed as time barred pursuant to CPLR 214(4) which provides that the statute of limitations for a property damage claim is three years. Citing Alamio v Town of Rockland, 302 AD2d 842 [3rd Dept. 2003], counsel asserts that under a theory of continuing trespass and nuisance, the damage is deemed to accrue when the damage was apparent (also see Russell v Dunbar, 40 AD3d 952 [2d Dept. 2007][the cause of action for property damage based on a theory of continuing trespass and nuisance accrues when the damage is apparent]; Mandel v Estate of Tiffany, 263 AD2d 827 [2d Dept. 1999]).

The defendant asserts that the plaintiff's own testimony established that plaintiff first noticed the damage allegedly caused by the tree roots sometime in the 1980s. Therefore, defendant asserts that as the action was commenced in December 2010, more than 20 years after he first noticed and complained about property damage to D'Angelo, it is time-barred by the three year statute of limitations. In addition, defendant argues that the causes of action for nuisance and trespass must also be dismissed on the ground that the damage to plaintiff's property [*4]was not intentional or so negligent that intent would be presumed (citing Turner v Coppola, 102 Misc 2d 1043 (Sup. Ct. Nassau Cty, 1980}. Counsel asserts that there is no evidence in the record that the defendant knew that tree roots were allegedly growing under his neighbor's property in such a manner as to cause the alleged damage until after the damage had occurred. Defendant also contends that the complaint must be dismissed as the plaintiff could have resorted to self help to remove the roots encroaching on his property (citing Loggia v Grobe, 128 Misc 2d. 973 {Dist. Ct. Suffolk Co. 1985]).

Defendant also asserts that the complaint must be dismissed on the ground of laches. Counsel contends in this regard that the plaintiff first noticed the alleged damages in the 1980s but did not commence the action until 20 years later when the damage had allegedly gotten worse, thereby prejudicing the defendant. Lastly, defendant contends that the plaintiff's allegation that the roots from the defendant's trees caused his driveway to become raised is merely speculative. The plaintiff testified that he never consulted an engineer about the cause of the problem and thus did not present expert testimony to support his conclusion that the damages were caused by the roots of his tree. Defendant claims that the condition could have been caused by other conditions such as the water intrusion under the concrete slabs which froze causing the slabs to become raised.

In opposition, the plaintiff cross-moves to for an order compelling the defendant to pay for and compensate the plaintiff for reasonable repairs caused by the trees on his property. Plaintiff submits an estimate from FJE Enterprises, dated April 5, 2012, showing that the cost to repair the damage is $5,700. In opposition to the motion to dismiss, the plaintiff states that "while such damage caused by the defendant's tree roots began years ago, it became exceedingly worse only over the past few years necessitating judicial intervention." He states that at the beginning the problem was barely noticeable and de minimis and that only in the last few years could the damages no longer be considered trifling. He states that the matter was not ripe to be litigated until the defendant's trees actually uprooted portions of his driveway.

Upon review and consideration of the defendant's motion, the plaintiff's cross-motion and affirmation in opposition and the defendant's reply thereto, this Court finds as follows:

CPLR 214(4) provides that an action to recover damages for an injury to property must be commenced "within three years". The courts have consistently held that under a theory of continuing [*5]nuisance and trespass the cause of action accrues when the damage was apparent (see Wild v Hayes, 68 AD3d 1412 [3d Dept. 2009]; Russell v Dunbar, 40 AD3d 952 [2d Dept. 2007]; Alamio v Town of Rockland, 302 AD2d 842 [3d Dept. 2003] quoting Mandel v Estate of Frank L. Tiffany, 263 AD2d 827 [3d Dept. 1999]).

Here, the deposition transcript of the plaintiff clearly demonstrates that the damage to the plaintiff's driveway was apparent to the plaintiff as early as the mid 1990s. He states that he noticed the misalignment of the driveway blocks because he kept tripping over a certain portion. He stated that he asked the defendant's brother "sometime in the 1980's" to have the trees taken down because it was causing damage to his driveway. He stated that the damage was getting progressively worse and that about ten years ago he spoke to the defendant and told him that the trees were causing damage to the slabs in front of his garage. This Court finds that although the plaintiff testified that the damage to the driveway was not as advanced as it is at the present time, his testimony shows that the damage was apparent to him at least ten years prior to the commencement of the action. Thus, as the three-year statute of limitations expired prior to the commencement of the action, the plaintiff's causes of action for trespass, nuisance and negligence based upon alleged property damage must be dismissed as time-barred.

In addition, this court finds that the plaintiff has failed to provide sufficient evidence to raise a question of fact as to whether the damage to his driveway was in fact caused by the roots of the defendant's trees. The plaintiff has failed to provide an expert affidavit as to causation of the property damage and the photographs submitted do not clearly show that the damage to the driveway was caused by roots rather than by some other cause.

Plaintiff's cross-motion for an order compelling the defendant to compensate the plaintiff for repairs and damage to his driveway caused by the defendant's trees is denied. The relief sought in the cross-motion is identical to the ultimate relief sought in the underlying complaint (see Monarch Condominium v Raskin, 37 AD3d 288 [1st Dept. 2007]). [*6]

Accordingly for all of the above stated reasons it is hereby,

ORDERED, that defendant's motion to dismiss the complaint is granted.

Dated: January 4, 2013

Long Island City, NY

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ROBERT J. MCDONALD, J.S.C.