Wehlau v. Town of Cortlandt , 48 A.D.2d 901 ( 1975 )

In a proceeding pursuant to subdivision 5 of section 50-e of the General Municipal Law for leave to serve a late notice of claim against respondent, the Town of Cortlandt, petitioner appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County, entered July 1, 1974, as, upon reargument, adhered to the original decision and order, entered June 10, 1974, denying the application. Order reversed insofar as appealed from, without costs, on the law and in the exercise of discretion, and application granted to the extent of granting petitioner leave to serve a notice of claim nunc pro tunc for continuing trespass since May 21, 1973. Petitioner’s notice of claim dated April 4, 1974 for continuing trespass was based on allegations of unlawful encroachment of certain subterranean pipes on petitioner’s property from May 21, 1973 to date. It has long been the rule in New York that an unlawful encroachment is a continuing trespass which gives rise to successive causes of action (509 Sixth Ave. Corp. v New York City Tr. Auth., 15 NY2d 48). Defenses to this claim possessed by respondent may be interposed at the appropriate time in an answer to any action based thereon which petitioner may deem fit to institute. Rabin, Acting P. J., Martuscello, Christ, Munder and Shapiro, JJ., concur.