Opinion
2014-09-10
William GUGEL, et al., appellants, v. COUNTY OF SUFFOLK, respondent.
Ahern & Ahern, Kings Park, N.Y. (Dennis P. Ahern of counsel), for appellants. Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Diana T. Bishop of counsel), for respondent.
Ahern & Ahern, Kings Park, N.Y. (Dennis P. Ahern of counsel), for appellants. Dennis M. Brown, County Attorney, Hauppauge, N.Y. (Diana T. Bishop of counsel), for respondent.
PETER B. SKELOS, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for injury to property, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), entered January 16, 2013, which granted the defendant'smotion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
A municipality is immune from liability “arising out of claims that it negligently designed [a] sewerage system” (Tappan Wire & Cable, Inc. v. County of Rockland, 7 A.D.3d 781, 782, 777 N.Y.S.2d 517; see Fireman's Fund Ins. Co. v. County of Nassau, 66 A.D.3d 823, 824, 887 N.Y.S.2d 242). 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” (Tappan Wire & Cable, Inc. v. County of Rockland, 7 A.D.3d at 782, 777 N.Y.S.2d 517; see De Witt Props. v. City of New York, 44 N.Y.2d 417, 423–424, 406 N.Y.S.2d 16, 377 N.E.2d 461; Biernacki v. Village of Ravena, 245 A.D.2d 656, 657, 664 N.Y.S.2d 682; Moore v. City of Yonkers, 54 A.D.3d 397, 863 N.Y.S.2d 80). In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no “ ‘notice of a dangerous condition,’ ” and that “it regularly inspected and maintained the subject sewer line” (Fireman's Fund Ins. Co. v. County of Nassau, 66 A.D.3d at 824, 887 N.Y.S.2d 242, quoting De Witt Props. v. City of New York, 44 N.Y.2d at 424, 406 N.Y.S.2d 16, 377 N.E.2d 461; see Azizi v. Village of Croton–on–Hudson, 79 A.D.3d 953, 955, 914 N.Y.S.2d 232; Holy Temple First Church of God in Christ v. City of Hudson, 17 A.D.3d 947, 794 N.Y.S.2d 465).
Here, although there is nothing in the record to show that the defendant County of Suffolk had prior notice of a dangerous condition in the subject sewer system, the County's proof regarding its regular inspection and maintenance of the sewer system was deficient. Specifically, the records that the County submitted in support of its motion for summary judgment were confusing, internally inconsistent, and did not support the conclusion made in an accompanying affidavit of a County Department of Public Works employee, who stated that the subject sewer line was annually “jetted” to clear blockages. In this regard, we note that the County also submitted a deposition transcript of another Department of Public Works employee, who testified at his deposition that he thought the subject sewage backup was caused by “grease and grit that form[ed] blockages.” Accordingly, the County failed to demonstrate its prima facie entitlement to judgment as a matter of law and, thus, its motion should have been denied regardless of the sufficiency of the plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Westchester Medical Center v. State Farm Mut. Auto. Ins. Co., 44 A.D.3d 750, 754, 843 N.Y.S.2d 182).