Opinion
17430 2005.
Decided March 19, 2010.
Torgan Cooper, P.C., New York, NY, Attorney for Plaintiffs.
Michael A. Cardozo, Corporation Counsel of the City of New York, New York, New York, By: Mary Ann Holden, Esq., Attorney for Defendant City of New York.
Richard W. Babinecz, New York, New York, Attorney for Defendant Consolidated Edison Company.
Preliminarily, the court notes that although the notice of motion states that the City is moving for alternative forms of relief, the supporting papers address only the summary judgment request. The motion, therefore, is deemed a motion for summary judgment.
Decedents Alana Berenson and Joseph T. Cheetham were electrocuted during a torrential rainstorm on August 11, 2004, when their motor vehicle stopped in a flooded area at the intersection of 15th Avenue and 117th Street, in College Point, Queens, and they exited into water that had been electrified by a downed power line. It is alleged by plaintiffs in this action to recover for personal injuries and wrongful death that the City was negligent in its care and maintenance of the sewer system at the location of the subject intersection, causing the intersection to become flooded with rain water due to the insufficient capacity of the sewer system.
A municipality is immune from liability for negligence in the exercise of its governmental function in designing a sewer system but is not entitled to immunity against claims that it negligently maintained the system since these claims challenge ministerial conduct. ( Fireman's Fund Ins. Co. v County of Nassau , 66 AD3d 823 ; Moore v City of Yonkers , 54 AD3d 397 ; Tappan Wire Cable, Inc. v County of Rockland , 7 AD3d 781 ; see, Biernacki v Village of Ravena, 245 AD2d 656.) The happening of an event such as flooding, by itself, is not sufficient to demonstrate a municipality's negligence in the construction or maintenance of a sewer or drainage system. ( Biernacki, 245 AD2d at 657; see, De Witt Props., Inc. v City of New York, 44 NY2d 417, 424; Hongach v City of New York , 8 AD3d 622 .) To impose liability in such a situation it must be shown that the municipality either caused the flooding by its active negligence or had notice of a defective condition that caused the flooding and failed to make reasonable efforts to inspect and repair the defect, thus breaching its duty to maintain the system. ( See, De Witt Props., Inc., 44 NY2d at 424; Holy Temple First Church of God in Christ v City of Hudson , 17 AD3d 947 ; Biernacki, 245 AD2d at 657.)
The affidavits, deposition testimony and documents submitted by the City in support of its motion establish that the City did not cause the flooding by negligent actions and had no notice of a defective condition that caused the flooding. The evidence also shows that the catch basins at the subject intersection had been inspected for debris and clogs as part of a Department of Environmental Protection (DEP) program four months prior to the incident, and that a DEP investigation of the sewer and basins in the days following the flooding found that the system was functioning properly. In opposition to this prima facie showing of entitlement to judgment as a matter of law ( see, Fireman's Fund Ins. Co., 66 AD3d at 824; Briga v Town of Binghamton , 8 AD3d 874 ; cf., Holmes v Incorporated Vil. of Piermont , 54 AD3d 809 ), plaintiffs have failed to produce evidentiary proof demonstrating the existence of factual issues requiring a trial. ( See, Kaufman v Silver, 90 NY2d 204, 208; Alvarez v Prospect Hosp., 68 NY2d 320, 324.)
Plaintiffs have submitted the affidavit of an engineer who opines that the City was actively negligent in the maintenance of the sewer system and caused the flooding by making alterations to the system that reduced the number of catch basins at the intersection, replaced a 30 inch diameter sewer pipe with an 18 inch diameter pipe, and "dead-ended" or "sealed" the sewer under 117th Street in front of property occupied by a Pepsi Cola plant at the intersection of 117th Street and 15th Avenue, requiring the sewer line to be rerouted around the plant.
Assuming plaintiffs' engineer has had adequate training or experience with regard to sewer systems to give his opinion probative value ( see, Kasner v Pathmark Stores, Inc. , 18 AD3d 440 ) and excusing plaintiffs' failure to identify their expert prior to filing the note of issue ( compare, Wartski v C.W. Post Campus of Long Is. Univ. , 63 AD3d 916 , with Browne v Smith , 65 AD3d 996), the City nonetheless has presented evidence in reply that conclusively refutes the bases of the engineer's opinion. Although the City admittedly reduced the number of catch basins at the intersection from six to four prior to 2004, the City has demonstrated that this was done as part of a project for the installation of handicapped-access ramps on the sidewalk to comply with the federally enacted Americans with Disabilities Act, which necessitated redesigning the catch basins to accommodate the ramps. As such, plaintiffs' claim of negligence for the reduction in the number of catch basins is defeated by the City's immunity from liability for claims arising out of the performance of its governmental function in planning and designing the size, location and number of catch basins in conjunction with the overall project. ( See, Biernacki, 245 AD2d at 657; see also, Fireman's Fund Ins. Co., 66 AD3d at 824; Holmes, 54 AD3d at 811; Tappan Wire Cable, Inc., 7 AD3d at 781.)
The additional contentions that the City negligently altered the sewer system by replacing a sewer pipe with a smaller diameter pipe and by dead-ending and rerouting the sewer line in the vicinity of the Pepsi Cola plant are based on the engineer's review of a DEP map or drawing dated April 2004. As the City establishes in reply papers, however, the April 2004 document relied upon to evidence these allegedly negligent changes does not represent the status of the system in April 2004 but is a drawing for a proposed capital project which has not yet commenced. ( See generally, Curiale v Sharrotts Woods, Inc. , 9 AD3d 473 .) In fact, the City's proof demonstrates, the pipes have not been replaced as alleged. Furthermore, while the route of the sewer system shown on the drawing also reflects the route as it existed in 2004, the City has established that the system was not dead-ended or rerouted after its original construction. Rather, the City sewer line never extended beyond 15th Avenue on 117th Street and was never connected to the privately owned sewer system that runs from 15th Avenue to Flushing Bay along 117th Street. The private system was constructed in 1944 by the property owner at that location, and remains privately owned by the current property owner, Pepsi Cola. Contrary to plaintiffs' protests, the City's submission of the affidavit of a DEP employee and supporting documents in reply served the proper function of reply papers by addressing arguments made by plaintiffs in opposition to the City's motion and the submissions are properly considered by the court. ( See, Wells Fargo Bank, N.A. v Marchione, ___ AD3d ___, 2009 NY Slip Op 7624 [2d Dept 2009]; Thorne v Cauldwell Terrace Constr. Corp. , 63 AD3d 826 .)
Insofar as the opinion of plaintiffs' engineer that the City negligently failed to maintain the sewer is premised on the site inspection he made in 2009, it is insufficient to raise a triable issue of fact as to the condition of the drainage system at the time of the incident in 2004. ( See, Tolbert v Budget Rent-A-Car Sys., Inc. , 40 AD3d 745 ; Machado v Clinton Hous. Dev. Co. , 20 AD3d 307 .)
Plaintiffs have also failed to raise a triable issue of fact as to whether the City had notice of the existence of a dangerous condition that caused the flooding on the date of the incident. As noted above, flooding alone does not demonstrate negligent maintenance. ( See, Hongach v City of New York, 8 AD3d at 622; Biernacki, 245 AD2d at 657-658.) In any event, inadmissible newspaper articles containing hearsay statements are insufficient to prove prior instances of flooding. ( See, Raczes v Horne , 68 AD3d 1521 ; Lee v City of New York , 40 AD3d 1048 ; Donato v Mikrut , 33 AD3d 654 .) Nor does DEP's knowledge in August 1995 of a clogged catch basin with flooding due to dirt from a sewer break at the site constitute notice of a dangerous condition that caused the flooding at issue here since the record shows that the break was repaired in July 1995 and the catch basins were cleaned thereafter to remedy the clogging. Furthermore, a report received by DEP in 1992 concerning a ponding condition in the area is too remote in time to provide prior notice of a defect in the sewer system in 2004, especially where DEP conducted an investigation and determined that poor roadway conditions, not improper functioning of the catch basins, created the ponding and subsequently performed inspections of the sewer at the site in April 1998, December 2001 and April 2004 to identify clogs or backups from debris.
Plaintiffs' complaint that the City withheld information concerning the private ownership of the sewer system under the Pepsi Cola property is unavailing. The City submitted the maps showing the private system in reply papers not for the purpose of denying ownership but to rebut plaintiffs' claim that the City had negligently altered its system by dead-ending the sewer line on 117th Street at 15th Avenue. The ownership of the system under the Pepsi Cola property is not at issue here. Moreover, plaintiffs have not identified any discovery demand made by them which would have required production of the maps of the private system.
Accordingly, the City's motion for summary judgment dismissing the complaint is granted. (CPLR 3212[b].)