[Brawl] Over Troubled Waters

Author:Mr Victor Metsch
Profession:Smith Gambrell & Russell LLP
 
FREE EXCERPT

Plaintiffs (Joseph Ubiles and Bernice Ubiles) and defendants (Ndingfarae Ngardingabe and Julie Camisuli) own adjoining properties on West 147th Street in Manhattan. Plaintiffs claimed that rain water and snow melt was flowing from defendants' driveway into their property. Plaintiffs contended that, as a result of the runoff, the foundation and the walls of their home had been damaged. They contended that defendants caused the condition by impermissibly altering the water drainage system in defendants' driveway and doing nothing to remediate the problem despite plaintiffs' complaints.

Plaintiffs sued. Defendants moved to dismiss based on the statute of limitations and on plaintiffs' failure to state a cause of action. Defendants claimed that the driveway was installed in 1989 when two lots (431 and 433 West 147th Street) were merged. Defendants argued that the driveway is pitched towards the street and was not causing damage to plaintiffs' property. Defendants claimed that, in 2006, plaintiffs requested their permission to access defendants' driveway to do pointing work and partial waterproofing on plaintiffs' wall. Defendants contended that, by 2009, the work on plaintiffs' wall was deteriorating and rendered the property vulnerable to damage from rain and snow.

In 2014, plaintiffs again requested access to defendants' property and they were allowed to install a tarp over a portion of the wall. In May 2015, defendants received a letter from plaintiffs' attorney asserting that defendants' actions in 2009 or 2010 (cementing over their existing driveway) were deficient and caused the surface to pitch towards plaintiffs' property. Defendants admitted that the driveway was paved in 2009.

Defendants pointed out that they notified their insurance company after receiving the letter from plaintiffs' counsel but that their insurance company found that the driveway did not contribute to plaintiffs' damage. Defendants maintained that plaintiffs reached out to their own insurance carrier, who also denied their claim based on the water runoff.

Defendants argued that the action was time-barred because the driveway was altered, at the latest, eight years before the suit was commenced. Defendants also argued that the continuous wrong doctrine did not apply because the damage arose out of a single allegedly objectionable act (the altering of the driveway). Defendants concluded that plaintiffs knew about the damage since at least 2006 and, therefore, they...

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