Page 3 - Court of Appeal and Appellate Practice

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Court of Appeals and Appellate Practice | MONDAY, AUGUST 25, 2014 | S3

toring” in favor of present or former smok- ject to the same accrual rules as those for stay or dismiss an action in whole or in part Mashreqbank a third-party defendant moved
ers “absent any evidence of present physical breach of contract. The rule that a contract on forum non conveniens grounds only upon to dismiss the third-party action on forum
injury or damage to property.” Id. at 452.
claim accrues against an architect or contrac- the motion of a party; a court does not have non conveniens grounds, which prompted
tor on the date of completion of the work the authority to invoke the doctrine on its the court to raise the issue of dismissing
“applies ‘no matter how a claim is characterized own motion.” VSL v. Dunes Hotels & Casinos, the main action on such grounds.
Public Nuisance Claims Rejected
in the complaint’ because ‘all liability’ for defec- 70 N.Y.2d 948, 949 (1988). This ruling was an The court reasoned that VSL was “very
In Town of Oyster Bay v. Lizza Indus., 22 tive construction ‘has its genesis in the con- important one, and was generally interpreted different from the present case,” in part

N.Y.3d 1024 (2013), several municipalities tractual relationship of the parties.’” Id. at 1030.
to bar a court from dismissing an action that
because neither “of the published opinions in
claimed that defendants, who constructed The court also observed that “if plaintiffs’ th[at] case suggests that the
a sewer system in Nassau and Suffolk Coun- continuing nuisance claims could be consid- doctrine of forum non con-
ties in the 1970s and 1980s, caused damage ered independent [tort] causes of action that he Court of Appeals will veniens was mentioned by
to their property after settling occurred due do not arise from the contracts,” they were any party, either in Supreme
to alleged faulty workmanship. The plaintiffs nonetheless time-barred. Id. at 1031. While ultimately need to grapple with the
Court or in the Appellate
did not contract with defendants, but owned plaintiffs argued that the injuries to their prop- Division.” Id. at 136. Fur-
property adjacent to the sewers.
erty were ongoing and constituted a continu- U.S. Supreme Court decisions in thermore, the court in
Mashreqbank
The court noted that plaintiffs’ claims arose ing public nuisance, the court rejected this ‘Daimler’ and ‘Walden’, probably found “no rea-
out of alleged defective construction and that contention and concluded that defendants’ son to read CPLR 327(a) as
in a breach of contract action against an archi- tortious conduct consisted of speciic acts of sooner than later.
prohibiting a forum non con-
tect or contractor, “the accrual date for Stat- negligent excavation and backilling that, of veniens dismissal where only
ute of Limitations purposes is completion of necessity, occurred before the construction the formality of a document
performance.” Id. at 1030. In that a breach of was complete in the 1980s. In that an action labeled ‘notice of motion’
contract cause of action is subject to a six-year to recover damages for injury to property had nothing to do with New York State if the was lacking, and where . the only party
statute of limitations under CPLR 213(2), any must be commenced within three years of the parties desired to litigate here.
opposed to dismissal, [the defendant in the
such claims in these 10 related actions, which date of the injury under CPLR 214(4), these In Mashreqbank PSC v. Ahmed Hamad main action,] neither objected to nor was prej-

were commenced in 2009, were time barred.
tort claims were also barred.
A1 Gosaibi & Bros., 23 N.Y.3d 129 (2014), udiced by the omission of that formality.” Id.
Plaintiffs, however, only alleged claims the court concluded that even though no A decision to dismiss an action on
for the tort of “continuing public nuisance.” Forum Non Conveniens party formally moved to dismiss the main forum non conveniens grounds is almost
Id. at 1029. The court noted that this type of Dismissal Permitted
action based on forum non conveniens, the always a discretionary one, but the court in
third-party beneiciary claim, which essen- decision in VSL did not bar such relief where Mashreqbank concluded that under the facts
tially arose out of defective construction In 1988, the court held in a brief memoran- the issue was briefed and argued at supreme before it, this case was “one of the relatively
under the contract, was nonetheless sub-
dum that “[u]nder CPLR 327(a) a court may
court. It should be noted, however, that in
uncommon ones in which dis- » Page S22

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