This article by Frederick Eisenbud, head of CMM’s Environmental & Land Use practice, was originally published in The New York Environmental Lawyer (2021 Vol 41, No. 1), a publication of the Environmental and Energy Section of the New York State Bar Association, under the title, ā€œA Better Solution Was in Plain Sight: Amend CPLR 214-c to Conform to the Requirements of CERCLA’s Federally Required Commencement Date.ā€

The Virtual Elimination of the Statute of Limitations Applicable to Damage Claims by Public Water Providers by the Legislature Will Cause More Harm Than Good – a Better Solution Was in Plain Sight*

By Frederick Eisenbud

I. Introduction

On November 4, 2019, Governor Andrew Cuomo signed into law New York Civil Practice Law and Rules (CPLR) 214-h, which appears to provide an open-ended statute of limitations for providers of public water claiming injury to their water source from contamination.1 This article (1) outlines the scope of CPLR 214-c which was enacted in 1986, and how it was applied to water suppliers prior to the adoption of CPLR 214-h; (2) outlines New York State Department of Health (DOH) regulations applicable to water providers and how they impact the running of the applicable statute of limitations; (3) shows that, pursuant to CPLR 214-c, DOH limits for contaminants in potable water do not have to be exceeded in order for the CPLR 214-c statute of limitations to be triggered; (4) discusses the expanded statute of limitations for water suppliers created by CPLR 214-h; (5) analyzes whether CPLR 214-h is to be retroactively applied and if it is, whether it will apply if the statute of limitations in CPLR 214-c otherwise would bar a claim prior to the adoption of CPLR 214-h; (6) argues that the provisions of CPLR 214-h which provide virtually open-ended time for water suppliers to commence an action for damages arising from contamination are inconsistent with sound public policy and may have unintentional adverse consequences for water purveyors; (7) concludes that CPLR 214-h should be rescinded and CPLR 214-c amended to provide a proper balance of rights that will further the goal of permitting water districts to recover their costs from responsible parties without undermining the purpose of having a statute of limitations; and (8) provides, as an Appendix, a proposed amendment to CPLR 214-c that will address the concerns of water providers without the potential adverse impacts created by CPLR 214-h.