Opinion
12400/08.
Decided March 30, 2011.
William A. DiConza, Esq., Attorney for Plaintiffs, Oyster Bay, NY.
Richard S. Finkel, Esq., Attorney for Defendant Town of North Hempstead, Manhasset, NY.
John Ciampoli, Esq., Attorney for Defendant County of Nassau, Mineola, NY.
Upon the foregoing, it is ordered that this motion by defendant Town of North Hempstead (hereinafter "Town") and cross-motion by defendant County of Nassau (hereinafter "County") both seeking an order pursuant to CPLR 3212 granting summary judgment in their favor dismissing plaintiffs' complaint and cross-motion by plaintiffs Nicholas Carbonaro and Doris Carbonaro (hereinafter plaintiffs "Carbonaro") granting partial summary judgment in their favor and against defendants on the issue of liability only are disposed of as follows:
Initially, it must be mentioned that while plaintiffs' cross motion, made September 30, 2010, more than 60 days after the note of issue was filed on March 4, 2010, is untimely ( Miceli v State Farm Mut. Auto. Ins. Co. , 3 NY3d 725; Brill v City of New York , 2 NY3d 648 ), this Court will entertain it nonetheless. An untimely motion or cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment has been made on nearly identical grounds ( Bressingham v Jamaica Hosp. Med. Ctr. , 17 AD3d 496 , 497; Boehme v A.P.P.L.E., 298 AD2d 540; Miranda v Devlin, 260 AD2d 451). The issues raised by the untimely cross motion are already properly before the court and thus, the nearly identical nature of the grounds may provide the requisite good cause [CPLR 3212(a)] to review the untimely cross motion on the merits. Notably, the court, in the course of deciding the timely motion, is, in any event, empowered to search the record and award summary judgment to a nonmoving party [CPLR 3212(b)].
Plaintiffs bring this action against the Town and the County to recover money damages for personal injuries and property damage allegedly sustained resulting from the flooding of their dwelling due to the overflowing of the sewers in the area where they live. Plaintiffs claim that the defendants negligently designed and/or maintained the storm water drainage and sewer system in their area.
The underlying facts are as follows:
The plaintiffs Carbonaro reside at and are the owners of the property located at 47 Allen Street, New Hyde Park, New York (referred to herein as the "subject premises"), which property is located within the Town of North Hempstead and in the County of Nassau.
It is undisputed on this record that the subject premises is situated on a dead end street, at the lowest point in the area with the surrounding topography at a higher elevation resulting in water runoff traveling towards the subject premises from the surrounding directions, including streets and overland.
At his examination before trial, plaintiff, Nicholas Carbonaro, testified under oath that, at the end of his dead end street, there is a sump, a ditch and then a school. In addition, at his examination before trial, William Bottenhofer (hereinafter "Bottenhofer"), the Nassau County Civil Engineer, testified, based upon a review of the construction plans for drainage in the area, that there exists a sump at West Street, a street that runs parallel to Allen Street, about four blocks north of Allen Street. Bottenhofer stated that the plans showed the sump and the piping that extends across the ball field, behind the school on Denton Avenue, and runs west along the dead end streets and ties in with Denton Avenue by the firehouse. He explained that a sump is actually a recharge basin, the intent of which is to collect surface run off water and collect it in an area and allow it to recharge back into the ground. Bottenhofer further explained that a sump is installed to accommodate that collection of water that otherwise would have naturally recharged elsewhere and that generally, along the side bank of a sump, there is a pipe to allow the water to either go into it or exit out of it, depending on what the elevations are. The piping for the West Street sump was designed to carry the water to Denton Avenue, where there is a concrete box culvert.
Bottenhofer also stated that there are two catch basins on Allen Street located at the bottom of the hill. Plans showed a 36 inch diameter reinforced concrete pipe in the area. Upon review of the elevations indicated on the plan, Bottenhofer stated that water would flow from the sump down through the school yard to Denton Avenue. The pipe is below ground and the water would flow through the pipe. He also confirmed that there is a swale that would carry surface water ( Id. at 51). According to the plans, water from the West Street storage basin will begin to flood onto the street between the catch basins on Allen Street, when the water surface rises to a depth of two feet in the outlet pipes at the head wall. Finally, Bottenhofer explained that when the water is two feet above the top of the pipe, at that elevation, it is higher than where the catch basins are and the water will come out of the basins ( Id. at 53-54).
Thomas Tiernan, the Town Superintendent of Highways, also testified at his sworn deposition that the catch basins are what catch the immediate overflow off the street. From the catch basin, Tiernan explained, the water goes to a sump through a pipe. He explained that at the end of Allen Street, there is a natural swale, with a pipe under the swale, that the sump catches the storm water in the area. The sump is comprised of a sandy bottom so that water that comes into it can drain through.
At his examination before trial plaintiff, Nicholas Carbonaro, described West Street as having a large hole in the ground, which he stated is called a storm water retaining well. According to Carbonaro, the sump runs from Denton Avenue to West Street. Inside the sump is a drain pipe. Plaintiff described that when the storm water in the retaining well overfills, it fills the sump, goes down the drain pipe and takes the storm water to where it is supposed to go. The pipe empties into the sump on West Street. Plaintiff testified that he was told that the diameter of the pipe is at the largest capacity; that there was previously a 24 inch pipe, but it was replaced with a pipe of approximately 36 inches back in the 1980s.
Plaintiff testified that he and his wife purchased their home in 1990. He stated that the home has a garage and that it's foundation is about a foot higher than the level ground; thus, the first floor is higher than the garage.
On July 18, 2007, there was a rain storm. During the course of the storm, water rose in front of the plaintiffs' home on Allen Street and eventually began to enter the plaintiffs' house. By the time the storm was over, the plaintiffs' home, as well as several of the neighboring homes, were completely flooded.
In bringing this action, plaintiffs claim that on July 18, 2007, their home and property was caused to sustain substantial flooding as a result of improperly contained surface water runoff from the public street in front of their premises. They allege that as the direct result of the defendants' faulty, negligent and reckless ownership, design, installation and/or repair and maintenance of the sewer/drainage system, sewer network and sump system located in the vicinity of their premises, they sustained personal injuries and property damage. Plaintiffs further claim that the defendants were aware of the pre-existing conditions which had previously resulted in the flooding of property and homes in the vicinity of the plaintiffs and that despite having this knowledge, the defendants allowed the subject sewer system, sewer network, and sump system at the subject location to become and remain in a dangerous, defective and hazardous condition, constituting a trap, nuisance and hazard. Plaintiffs also allege that actual notice was filed with the defendants more than fifteen days prior to July 18, 2007 and the defendants failed and/or neglected to make timely or sufficient repairs or cleaning to correct the said condition notwithstanding numerous requests to do so.
By separate motions, defendants, Town and County, each seek summary judgment dismissing of the plaintiffs' complaint. In support of it's motion, the Town submits, inter alia, the following: the Nassau County Department of Public Works Civil Engineer, William Bottenhofer's deposition transcript; the Town's Highway Superintendent, Thomas Tiernan's deposition transcript; the affidavit of meteorologist George Wright; and, the expert affidavit of Donnamary Plante, a Civil Engineer employed by the Town's Department of Public Works since 2004. Similarly, in support of it's motion, the County also submits, inter alia, the expert affidavit of Scott Urban, Hydrogeologist with the Nassau County Department of Public Works.
The defendants' proof, particularly the affidavit of Donnamary Plante, establishes the following: the storm drainage system in front of the subject premises is consistent with the type of system that serves residential areas in Nassau County, which are customarily designed for a storm with a 2 to 5 year frequency. Plante described that the subject catch basins are connected to an 18-inch reinforced concrete pipe that interconnects with a 36-inch reinforced concrete pipe located on the south side of the Denton Avenue school property. The system is designed to direct water from the catch basins on Allen Street to county recharge basins, including Recharge Basin #176. Plante stated that during ordinary storms, the system provided the necessary relief. However, the flooding which occurred on July 18, 2007, was the result of an extraordinary severe storm that generated more runoff than the existing drains could effectively transport away. She opines that there was no systemic failure in the drainage system and the system functioned as designed. Plante maintains that the rainfall was simply too intense to accommodate the quantity of storm water that fell in such a short amount of time and that the inevitable result was the flooding at the lowest point.
Plaintiffs oppose the defendants' respective motions and also cross move for partial summary judgment as to liability only on their claims against both the Town and the County. In doing so, the plaintiffs submit, inter alia, various letters and internal memos from the Town and County referencing the storm water basin in the area; a September 23, 1960 report entitled "Drainage Investigation Storage Basin Overflow East of Denton Avenue, North of Hillside Avenue" addressed to the Deputy Commissioner of Public Works in which the Principal Drainage Designer, Francis X. Merklin, submitted his recommendations "for relief of the flooding conditions at Allen Street and Brian Street, New Hyde Park"; a letter dated June 6, 1989 by the Town Supervisor John B. Kiernan addressed to the former owner of the plaintiffs' residence at 47 Allen Street regarding the flooding at the subject premises; and, a plan entitled "Drainage Study, Allen Street, New Hyde Park" dated July 1989 and prepared by Dvirka and Bartilucci, Consulting Engineers on behalf of the Town.
In opposition, plaintiffs also submit the expert affidavit of Joseph D. Martines, a civil engineer engaged in private practice. Initially, it is noted that the plaintiffs failed to identify Mr. Martines as an expert in pre-trial disclosure and serve this affidavit, apparently solely in response to oppose the defendants' motions for summary judgment, and after the filing of the Note of Issue and Certificate of Readiness attesting to the completion of discovery ( Soldano v Bayport-Blue Point Union Free School Dist. , 29 AD3d 891 ; Safrin v DST Russian Turkish Bath, Inc. , 16 AD3d 656).
Even if this Court could overlook the otherwise fatal procedural defects, the expert's affidavit cannot be considered as the statements contained therein are speculative, conclusory and without any probative value. Specifically, the expert does not have any personal knowledge of the facts as demonstrated by the lack of discussion of the "site inspections" he purportedly conducted. In addition, he states that the lack of "as built" plans "makes it impossible at this point to determine if the systems that the Town and County designed and installed were properly installed, repaired, modified and/or maintained". His admitted uncertainty, coupled with his assertion that the cause of the flood and its resulting damage is "irrelevant", renders any opinion he offers on the proximate cause of the July 18, 2007 flooding to be speculative, conclusory and insufficient to defeat the Town's motion for summary judgment ( Moore v City of Yonkers , 54 AD3d 397 ; Reyes v City of New York , 29 AD3d 667 ).
Further, plaintiffs fail to submit their own affidavits, without offering any excuse for their failure to do so. Thus plaintiffs rely solely upon the affirmation of their attorney which has no probative value absent personal knowledge of the facts. This affirmation fails to supply the evidentiary showing necessary to either defeat the motions for summary judgment or support their own cross motion for summary judgment (CPLR 3212, [b]; Rotuba Extruders v Ceppos, 46 NY2d 223, 229).
In support of their motions, defendants assert five bases for their entitlement to summary judgment: (1) a municipality may not be held liable for claims arising out of the negligent design of the sewerage system; (2) the Town cannot be held liable for damages resulting from an excessive or extraordinary rainfall; (3) the Town cannot be held liable for the alleged failure to provide a sufficient drainage system as it has no duty to provide any drainage system in the first instance; (4) there is no evidence that the municipalities affirmatively breached a duty or that it was actively negligent in causing the flood; and, (5) there is no proof that supports the assertion that obstructed drains were either involved in or were the cause of the subject flood. The County asserts two additional grounds for it's entitlement to summary judgment: (1) it does not have jurisdiction over the alleged accident situs; and (2) it did not have any prior written notice of the alleged defect.
The standards for summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law ( Alvarez v Prospect Hosp., 68 NY2d 320). Thus, when faced with a summary judgment motion, a court's task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial ( Miller v Journal-News, 211 AD2d 626).
The burden on the party moving for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact ( Ayotte v Gervasio, 81 NY2d 1062). If this initial burden has not been met, the motion must be denied without regard to the sufficiency of opposing papers ( Id.; Alvarez v Prospect Hosp., supra). However, once this initial burden has been met by movant, the burden shifts to the party opposing the motion to submit evidentiary proof in admissible form sufficient to create material issues of fact requiring a trial to resolve ( Id). Mere conclusions and unsubstantiated allegations or assertions are insufficient ( Zuckerman v City of New York, 49 NY2d 557, 562) even if alleged by an expert ( Alvarez v Prospect Hospital, supra; Aghabi v Sebro, 256 AD2d 287).
Generally, a municipality is immune from liability arising out of claims that it negligently designed the sewerage system; however, a municipality is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature ( Fireman's Fund Ins. Co. v County of Nassau , 66 AD3d 823 ; Biernacki v Village of Ravena, 245 AD2d 656).
Specifically, municipalities are not liable for defects, errors, or want of judgment in devising the plan ( Siefert v City of Brooklyn, 101 NY 136), nor are they obliged at their peril to select the best possible route, or to adopt the best possible plan, provided that the route selected and the plan adopted are reasonably safe ( Uppington v City of New York, 165 NY 222). On the other hand, if a municipality is aware of a plan's inadequacies and that injury may result from them, it must exercise ordinary care to prevent such consequences and is liable for failing to do so ( Sgarlata v City of Schenectady, 77 Misc 2d 481 [Sup. Ct. Schnectady 1974]). Otherwise, a municipality is not liable for constructing an insufficient sewer system since it is not required to install any sewer at all. If a system is inadequate, there is an error in judgment committed in the exercise of a quasi-judicial determination, for which there is no redress ( Beck v City of New York, 23 Misc 2d 1036 [Sup. Ct. Queens 1960], judgment aff'd, 16 AD2d 809). But if a municipality undertakes to control the drainage and in doing so causes injury, it may be held liable for any damages sustained in the process ( Goldstein v Monroe County, 77 AD2d 232).
Therefore, mere evidence of flooding caused by a sewer system is insufficient to maintain an action for negligence against a municipality in the construction and maintenance of a sewer or drainage system ( Hongach v City of New York , 8 AD3d 622 ). That is, in the absence of some proof to support a finding of negligence, plaintiffs cannot succeed in an action against a municipality for damages sustained as a result of defective or insufficient sewers or drains ( Beck v City of New York, supra).In that regard, in order to recover for negligent inspection and maintenance, plaintiffs must demonstrate that the municipality had notice of a dangerous condition, that the municipality failed to make reasonable efforts to inspect and repair the defect, and that such failure caused plaintiffs' injuries ( DeWitt Props, Inc. v City of New York, 44 NY2d 417, 424; Holmes v Incorporated Village of Piermont , 54 AD3d 809 ; Holy Temple First Church of God in Christ v City of Hudson , 17 AD3d 947 ).
Upon the issue of negligent design, both the Town and the County have collectively met their prima facie burden of proof by demonstrating that they are immune from liability for the allegedly negligent design of the sewerage system in the area where plaintiffs live. In opposition, plaintiff argues that as demonstrated by the 1960 Drainage Study, the defendants were aware of the plan's inadequacies and that injury may result from them. Relying principally upon Sgarlata v. City of Schenectady, supra, plaintiffs argue that the documentary evidence herein presents an issue of fact as to whether the defendants exercised ordinary care to prevent the consequences of the inadequate sewerage drainage plan. This Court disagrees.
As stated above, it is true that if a municipality is aware of a plan's inadequacies and that injury may result from them, it must exercise ordinary care to prevent such consequences and is liable for failing to do so ( Sgarlata v City of Schenectady, supra). However, in this case, reliance upon Sgarlata is misplaced.
The court in Sgarlata held that the municipality, if aware of the system's inadequacy and that injury may result, is constrained to exercise ordinary care to prevent a consequence of the drainage system's inadequacies and is liable for failure to do so. Thus, if the construction of a sewer or a drainage system was sufficient for its original purposes, but later became inadequate or overtaxed because of a change in conditions created by additional connections or change in street grade, a municipality has been held liable, the court noted. In this case, however, the defendants have not only established the drainage system is ordinarily sufficient for the purposes for which it was intended and designed and that the proximate cause of the plaintiffs' injuries was not the result of an inadequate drainage system, but the plaintiffs have also failed to raise an issue of fact that the system was held to be inadequate due to, for example, a change in the community or the topography.
Further, plaintiff's reliance upon the drainage study conducted by Francis X. Merklin, Principal Drainage Designer for the County, dated September 23, 1960 is also misplaced.
First, with the exception of Recommendation #3, the recommendations contained within this study are unmistakably related to improvements in design as opposed to maintenance. In that regard, as stated above, a municipality is not liable for constructing an insufficient sewer system since it is not required to install any sewer at all. Indeed, if the sewer in question is inadequate and deficient in both design and construction, there can be no liability attached to a municipality on that score alone ( Beck v City of New York, supra).
Second, plaintiffs overlook the fact that their own submissions, including the July 1989 plans entitled "Drainage Study Allen Street, New Hyde Park," confirm that the recommendations contained within the 1960 drainage study were, in fact, implemented. Specifically, Recommendation #7 in the 1960 study, which the plaintiffs ignore as the "foolproof" solution to the flooding problems states as follows:
(7)This recommendation requires survey and further analysis but appears to be feasible and would provide a foolproof situation. Regrade a portion of the School property easterly from Denton avenue between the driveway and the sourtherly property line to lower this area to the elevation of Denton Avenue. Construct a wall from the high area West of Allen Street to the high area East of Brian Street, the top of the wall to be higher than the elevation of Denton Avenue. The effect of this construction would be to provide an impounding area on the School property between the proposed wall and the School Parking Field which area could overflow into Denton Avenue, if the surface inlets in his area and the 36" pipe were not adequate. It should be emphasized that the other corrective measures should adequately provide the desired relief but that this would be the foolproof solution which is probably the only thing that will restore the peace of mind of the people in the flooded area.
According to the July 1989 plans entitled "Drainage Study Allen Street, New Hyde Park" which were prepared by engineering consultants Dvirka and Bartilucci, and submitted by the plaintiffs in their opposition and in support of their cross motion, and as confirmed by the affidavit of Jillian Guiney, the Deputy Commissioner of the Department of Public Works in the Town of North Hempstead who personally inspected the area on the south side of the Denton Avenue School property on October 25, 2010, there "exist[s] a grass swale and a wall that runs parallel, east and west, along the south side of the school property". This is precisely where recommendation #7 suggested that the wall be constructed. As Guiney further states in her affidavit, "[t]he existence of the grass swale is evidence that the school property was regraded to lower its elevation" ( Id. at ¶ 8).
Therefore, in light of the plaintiffs' failure to raise an issue of fact that the municipality, despite being aware of the sewerage plan's alleged inadequacies, did not exercise ordinary care to prevent such consequences, the defendants are herewith entitled to immunity from liability arising out of claims that they negligently designed the storm drainage system and the sewer line ( Seifert v City of Brooklyn, supra at 144-145; Tappan Wire Cable, Inc. v City of Rockland , 7 AD3d 781 , 783).
As to the issue of negligent maintenance and repair, plaintiffs' also claim that the defendants were actively negligent in knowing about the conditions that caused the flooding in the area surrounding plaintiffs' home, and failing to correct or remedy those conditions. In that regard, while the defendants have established their entitlement to judgment as a matter of law by submitting, inter alia, the affidavits of Donnamary Plante and Thomas Tiernan, plaintiffs' have failed to raise an issue of fact.
As stated above, this Court starts with the general rule that mere evidence of flooding caused by a sewer system is insufficient to maintain an action for negligence against a municipality in the construction and maintenance of a sewer or drainage system ( Hongach v City of New York, supra; Beck v City of New York, supra). Therefore, in order to recover for negligent inspection and maintenance, plaintiffs must demonstrate that the municipality had notice of a dangerous condition, that the municipality failed to make reasonable efforts to inspect and repair the defect, and that such failure caused plaintiffs' injuries ( DeWitt Props, Inc. v City of New York, supra; Holmes v Incorporated Village of Piermont, supra; Holy Temple First Church of God in Christ v City of Hudson, supra).
While under the most liberal interpretation of the evidence herein submitted, this Court can be persuaded that the defendants in fact had notice of the dangerous conditions in the sewerage system in the area, the plaintiffs have nevertheless failed to establish that the defendants did not make reasonable efforts to inspect and repair the defects or that the it was their alleged failure to cure the defects that was the cause of plaintiffs' injuries, rather than the torrential rains that fell on July 18, 2007.
Specifically, the defendants' expert, Jillian Guiney, clearly states that there now exists a swale and wall at the area which was recommended by the 1960 report. Thus, despite plaintiffs' assertions that no recommendations were followed, this swale and wall were constructed and installed by the County recommended by the County Drainage Designer, Mercklin. The plans are dated May 1, 1960 and are noted as having been completed August 1961. Thus, the documentary evidence herein shows that after the 1960 recommendations were made, the County moved forward with the plans forthwith.
Plaintiffs argue that "[t]he suggested remediation was to simply disconnect the Town system from the County system and install separate drain pipes from the Allen Street catch basins to the Denton Avenue culvert" and that this was never done. Counsel for the plaintiffs submits that "[t]he Town attempted to control the storm water drainage and, in doing so, cast water upon the private land of the plaintiffs and others and destoryed their lives and homes". This argument is entirely unavailing particularly where the very study which proposed this recommendation — i.e., the 1960 Drainage Study — also proposed another "foolproof" solution that was proposed to be "probably the only thing that will restore the peace of mind of the people in the flooded area" and ultimately the foolproof solution was adopted.
Insofar as counsel for the plaintiffs argue that all parties to this action were aware of the predisposition of this area to flood in the same manner as it had previously flooded in for example 1984, 1989 and 1999, there is simply no documentary evidence to confirm same. Specifically, while the plaintiffs submit evidence that the defendants maintained and worked on improving the Storm Water Basin # 176 in 1984 ( Cross Motion, Ex. H), in 1989 ( Id., Ex. I), and in 1999 ( Id., Ex. O), there is no evidence of any actual flooding on these dates. Further, even if there was, mere evidence of flooding caused by a sewer system is insufficient to maintain an action for negligence against a municipality in the maintenance of a sewer or drainage system ( Hognach v City of New York, supra). The mere happening of an event does not create an issue of fact which meets plaintiffs' burden of proof as to the municipality's negligence. It is well settled law that a plaintiff must show that the municipality either affirmatively breached a duty owed or that it was actively negligent and the negligence was the proximate cause of the alleged damages claimed ( Gibson v New York State, 187 Misc. 931 [Ct. of Claims 1946]). The plaintiffs have failed to meet this burden in that they have failed to prove that the defendants were actively negligent or that the negligence was the proximate cause of the alleged damages.
Therefore, in the absence of any evidence that the defendants failed to repair the defects of which it had actual notice and knowledge and further that the failure to do so was the cause of plaintiffs' injuries, defendants' motion for summary judgment dismissal of plaintiffs' claims of negligent maintenance and repair are granted.
Inasmuch as it remains uncontroverted by all parties herein that the municipalities cannot be rendered liable for damages caused by an extraordinary and excessive rainfall, such as the one that fell on July 18, 2007 in this case, defendants are obviously entitled to judgment as a matter of law on that basis as well ( O'Donnell v City of Syracuse, 184 NY 1; Holzhausen v City of New York, 116 App.Div. 812; Punsky v City of New York 129 App. Div. 558, 559).
Finally, in regard to the issues of trespass, nuisance and res ipsa loquitor, in order to establish a cause of action for trespass, which is an intentional harm, a plaintiff must plead and prove that there was an act intended by the defendant which produced a direct, unlawful invasion upon the plaintiff's property ( Phillips v Sun Oil Co., 307 NY 328).
In order to establish a cause of action for private nuisance, which is also an intentional harm, a plaintiff must plead and prove an interference substantial in nature, intentional in origin, unreasonable in character, interfering with a person's right to use and enjoy land and caused by another's conduct in acting or failing to act ( Weinberg v Lombardi, 217 AD2d 579).
Whereas the defendants have collectively met their prima facie burden of proof, the plaintiffs have failed to submit any evidentiary proof in admissible form sufficient to establish material issues of fact on these claims as well ( Alvarez v Propsect Hosp., supra at 324; Zuckerman v City of New York, supra at 562). Mere speculation or conclusory allegations, as proffered by the plaintiffs in opposition to the summary judgment motions herein, of improper maintenance, control, management and/or design causing blockage of waste water, storm water, sewage pipes, drains and facilities is insufficient to create a material issue of fact with respect to trespass or private nuisance.
The doctrine of res ipsa loquitur is a rule of evidence ( Martinez v City of New York, 292 AD2d 349) which permits an inference of negligence where as enunciated by our Court of Appeals in Morejon v Rais Const. Co. , 7 NY3d 203 , 209:
"(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (internal quotation marks omitted.)
This Court finds and determines that the plaintiffs' opposition to the summary judgment motions does not meet the herein above first and second elements of the doctrine of res ipsa loquitur.
Therefore, the motions by defendant, Town of North Hempstead and cross-motion by the County of Nassau, each for an Order pursuant to CPLR 3212 granting summary judgment in their favor dismissing of the plaintiffs' complaint in its entirety are granted and the plaintiffs' complaint is hereby dismissed in its entirety. Accordingly, the plaintiffs' cross motion for an Order, pursuant to CPLR 3212, awarding them summary judgment on their claims against both the Town and the County is denied as moot.
Having awarded summary judgment dismissal of the plaintiffs' complaint, this Court need not address the defendants' remaining contentions and arguments in support thereof.
All applications not specifically addressed herein are deemed denied.