Koelling v. D'Angelo

QUEENS COUNTY
Torts

New York Law Journal

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Justice Robert McDonald

Koelling sought damages for claims of trespass and nuisance against D'Angelo, the adjoining property homeowner. Koelling argued that roots of trees on D'Angelo's property caused Koelling's driveway to become raised, cracked and damaged. D'Angelo argued the causes of action sounding in negligence, trespass and nuisance based on property damage should be dismissed as time-barred since the three-year statute of limitations had expired. The court agreed, stating that under a theory of continuing nuisance and trespass, a cause of action accrues when the damage is apparent. It ruled that while Koelling testified the damage to the driveway was not as advanced previously as it was now, his testimony revealed the damage was apparent to him at least 10 years before he began the action. Hence, the court concluded the causes of action must be dismissed as time-barred. Further, it noted Koelling failed to provide sufficient evidence to raise a question of fact if the damage to the driveway was caused by the roots of D'Angelo's trees, as he failed to provide an expert affidavit, and pictures submitted did not clearly demonstrate the damage was not caused by some other cause.

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