Opinion
CA 03-01233.
December 31, 2003.
Appeal from an order of Supreme Court, Yates County (Falvey, J.), entered December 26, 2002, which granted defendant's motion for summary judgment dismissing the complaint.
KENYON KENYON, CANANDAIGUA (WILLIAM R. KENYON OF COUNSEL), FOR PLAINTIFF-APPELLANT.
COLUCCI GALLAHER, P.C., BUFFALO (JAMES J. GRECO OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Before: PRESENT: PINE, J.P., WISNER, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying the motion and reinstating the complaint and as modified the order is affirmed without costs.
Memorandum: We agree with plaintiff that Supreme Court erred in granting the motion of defendant, Town of Jerusalem (Town), seeking summary judgment dismissing the complaint. The complaint alleges that, in the course of repairing the curb box for plaintiff's home, employees of the Town negligently opened a valve in a sewer line, causing raw sewage to flow into plaintiff's home. Contrary to the court's determination, the operation, maintenance and repair of the sewer system is a proprietary function, and thus the Town's liability is not contingent upon the existence of a special relationship ( see Pet Prods. v. City of Yonkers, 290 A.D.2d 546, 547; 5C Warren, Negligence in New York Courts § 69.02 [3] [4th ed]; see also Storch v. Town of Cornwall, 294 A.D.2d 426, 427; Zeltmann v. Town of Islip, 265 A.D.2d 407; Vanguard Tours v. Town of Yorktown, 83 A.D.2d 866; see generally Johnson City Cent. School Dist. v. Fidelity Deposit Co. of Md., 272 A.D.2d 818, 821; cf. Biernacki v. Village of Ravena, 245 A.D.2d 656, 657). Ehmke v. City of Lockport ( 289 A.D.2d 1004), relied upon by the Town, is distinguishable, inasmuch as there, the cause of action arose from the municipality's delay in responding to an emergency call. We therefore modify the order by denying the Town's motion and reinstating the complaint.