December 11, 2019

December 11, 2019

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December 10, 2019

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December 09, 2019

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New York Enacts New Limitations Period for Water Supplier Contamination Claims

On November 4, 2019, New York Governor Andrew Cuomo signed into law a statute of limitations bill designed to make it easier for public water providers to file lawsuits relating to alleged contamination of their water supply wells. The new provision allows a water supplier three years to file suit from the date on which it “last detect[s]” a contaminant in a given supply well. N.Y. CPLR § 214-h(2) (S.B. 3337/A.B.5477). This contrasts with the previously applicable limitations period, which required a plaintiff to file suit within three years of when it discovered or “should have” discovered an injury to its property. N.Y. CPLR § 214-c.

Specifically, newly enacted Section 214-h of the New York Civil Practice Law & Rules (CPLR) provides that, for actions seeking damages for injuries to water supplies, public or wholesale water suppliers must file suit within three years from the latest of either:

  • The detection of a contaminant in raw water;

  • The last wrongful act by any person who contributed to the contamination; or

  • The last detection of a contaminant in raw water. 

To trigger the limitations period, the contaminant must be present in excess of any notification level, action level, maximum contaminant level, or maximum contaminant level goal established by the New York State Department of Health or the U.S. Environmental Protection Agency. Notably, the new statute of limitations applies to each well and plant intake, and for each contaminant, separately. As a result, the expiration of the statute of limitations based on a detection of a contaminant in one well may not preclude a water provider from bringing an action based on subsequent detections in one or more other wells.

Prior to the enactment of this provision, water provider claims regarding contamination of their supply wells (and contamination-related property damage claims by other plaintiffs) were governed by CPLR Section 214-c. Under that section, the statute of limitations runs from the earlier of the “date of discovery of the injury by the plaintiff” or “the date when through the exercise of reasonable diligence the injury should have been discovered.” N.Y. CPLR § 214-c(2). The new provision, which is specific to public water providers, may allow certain claims to proceed that would have been time-barred under Section 214-c.

The effort to adopt a limitation period specific to water supply contamination claims was led in the State Senate by Sen. Jim Gaughran, who formerly served as Chairman of the Board of Suffolk County Water Authority (SCWA), the largest supplier of groundwater in the United States. SCWA has filed at least four major lawsuits seeking damages for alleged contamination of its water supply wells.

The exact scope and effect of this new provision will no doubt be subject to interpretation by the courts as water suppliers on Long Island and elsewhere in the state continue to assert product liability, toxic tort, and other claims based on detections of contaminants – particularly so-called emerging (or previously unregulated) contaminants – in their supply wells. As the contours of the new law take shape, defendants will need to carefully analyze the availability of limitations-based and other defenses.

© 2019 Beveridge & Diamond PC

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About this Author

Daniel M. Krainin, Environmental Attorney, Beveridge Diamond Law Firm
Principal

Daniel M. Krainin is a Principal in the New York office of Beveridge & Diamond, P.C.  He was named to the 2011 and 2012 Super Lawyers list for the New York Metropolitan area, holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, and serves as a Vice Chair of the ABA Environment Section's Environmental Litigation and Toxic Torts Committee.

212-702 5417
Megan R. Brillault, Environmental Law Attorney, Beveridge Diamond Law Firm
Associate

Megan Brillault represents individuals, trade associations and businesses, including Fortune 500 companies, in complex civil and criminal environmental litigation as well as insurance recovery. Versed in the complexities of e-discovery, Ms. Brillault helps clients implement cost-effective and fast-paced litigation solutions for all phases of discovery through post-trial proceedings. 

212-702-5414
Anthony G. Papetti, Environmental Lawyer, Beveridge & Diamond Law Firm
Associate

Anthony Papetti maintains a general environmental litigation and regulatory practice, which has included  remediation matters under the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) and data compensation arbitration matters under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).

Prior to law school, Anthony worked as a chemical analyst in the elemental analysis section of a global company that provides testing and inspection services for the petroleum, refining, and petrochemical industries....

202-789-6042