Opinion
2012-11-16
Karen McGRATH and Steven Foley, Plaintiffs–Respondents, v. TOWN OF IRONDEQUOIT, Defendant–Appellant. (Appeal No. 1.)
Lippman O'Connor, Buffalo (Gerard E. O'Connor of Counsel), for Defendant–Appellant. Michael J. Tuohey, Rochester, for Plaintiffs–Respondents.
Lippman O'Connor, Buffalo (Gerard E. O'Connor of Counsel), for Defendant–Appellant. Michael J. Tuohey, Rochester, for Plaintiffs–Respondents.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND VALENTINO, JJ.
MEMORANDUM:
These consolidated appeals arise from an action for, inter alia, private nuisance, which plaintiffs commenced to recover damages arising from the cost of repairs to their parcel of real property, as well as the diminution of the value of their property. Plaintiffs alleged that defendant's adjacent parcel of property collapsed, causing the subsidence of plaintiffs' property. Defendant contends in appeal No. 1 that Supreme Court erred in denying that part of its motion for summary judgment dismissing the private nuisance cause of action, and defendant contends in appeal No. 2 that the court erred in granting plaintiffs' motion for leave to amend their complaint.
We reject defendant's contention in appeal No. 1 that the court should have granted that part of its motion for summaryjudgment dismissing the private nuisance cause of action. In support of that part of the motion, defendant contended that the sloped land was a naturally occurring event for which it could not be held liable, and that it was immune from this type of action pursuant to the municipal immunity doctrine set forth in Weiss v. Fote, 7 N.Y.2d 579, 584, 200 N.Y.S.2d 409, 167 N.E.2d 63,rearg.denied8 N.Y.2d 934, 204 N.Y.S.2d 1025, 168 N.E.2d 857. We agree with the court that defendant failed to meet its initial burden on either prong of the motion ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). Defendant's further contentions with respect to appeal No. 1 are not properly before us inasmuch as they are raised for the first time on appeal ( see Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745).
Contrary to the contention of defendant in appeal No. 2, the court did not abuse its discretion in granting plaintiffs' motion for leave to amend their complaint inasmuch as defendant failed to demonstrate that it will be prejudiced by the amendment, and the amendment is not palpably insufficient on its face ( see Hogarth v. City of Syracuse [appeal No. 1], 238 A.D.2d 887, 887, 660 N.Y.S.2d 779 lv. dismissed90 N.Y.2d 935, 664 N.Y.S.2d 272, 686 N.E.2d 1367,lv. denied93 N.Y.2d 812, 695 N.Y.S.2d 540, 717 N.E.2d 699).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.