Summary
In Tully, the Appellate Division, Second Department followed the approach in Garcia and looked at whether the complaint asserted a cause of action which was not referred to, either directly or indirectly, in the original notice of claim.
Summary of this case from Siegfried v. Dakota, Inc.Opinion
2013-01-9
Richard TULLY, plaintiff-respondent, v. CITY OF GLEN COVE, defendant-respondent-appellant, County of Nassau, defendant-respondent, Philip Sciubba, et al., defendants-appellants-respondents (and third-party actions).
Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for defendants-appellants-respondents. Sokoloff Stern LLP, Westbury, N.Y. (Steven C. Stern, Kiera J. Meehan, and Anthony Cardoso of counsel), for defendant-respondent-appellant.
Andrea G. Sawyers, Melville, N.Y. (Dominic P. Zafonte of counsel), for defendants-appellants-respondents. Sokoloff Stern LLP, Westbury, N.Y. (Steven C. Stern, Kiera J. Meehan, and Anthony Cardoso of counsel), for defendant-respondent-appellant.
William A. DiConza, Oyster Bay, N.Y., for plaintiff-respondent.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In an action to recover damages for injury to property, the defendants Philip Sciubba and Kathleen Kraemer appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Jaeger, J.), dated February 9, 2012, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the defendant City of Glen Cove cross-appeals from so much of the same order as denied its separate motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs payable by the plaintiff to the appellants appearing separately and filing separate briefs, and the motions are granted.
The plaintiff commenced this action against, among others, the City of Glen Cove and his neighbors, Philip Sciubba and Kathleen Kraemer, to recover damages for injury to his property allegedly sustained following severe rainstorms in August 2008. The complaint alleged, among other things, that the City was negligent in approving the subdivision and development of certain real property located near the plaintiff's real property and in the “design, installation and/or repair and maintenance of the ... culvert system ... located in the vicinity of [his] premises.” The complaint alleged that Sciubba and Kraemer (hereinafter together the neighbors) were negligent in developing their property and erecting a new house on it.
The City and the neighbors separately moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them. The Supreme Court, inter alia, denied their respective motions.
Timely and proper service of a notice of claim which, among other things, sufficiently identifies the claimant, states the nature of the claim, and describes “the time when, the place where and the manner in which the claim arose,” is a condition precedent to the commencement of a common-law tort action against a municipality (General Municipal Law § 50–e[2]; see Santoro v. Town of Smithtown, 40 A.D.3d 736, 737, 835 N.Y.S.2d 658). “The test of the notice's sufficiency is whether it includes information sufficient to enable the city to investigate the claim” ( O'Brien v. City of Syracuse, 54 N.Y.2d 353, 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158). Although General Municipal Law § 50–e(6) permits correction of “good faith, nonprejudicial, technical mistakes, defects or omissions,” it does not authorize “substantive changes in the theory of liability” ( Mahase v. Manhattan & Bronx Surface Tr. Operating Auth., 3 A.D.3d 410, 411, 771 N.Y.S.2d 99;see Semprini v. Village of Southampton, 48 A.D.3d 543, 545, 852 N.Y.S.2d 208;Monmasterio v. New York City Hous. Auth., 39 A.D.3d 354, 356, 833 N.Y.S.2d 498;Gordon v. City of New York, 79 A.D.2d 981, 981, 434 N.Y.S.2d 478;cf.General Municipal Law § 50–e[5] ).
Prior to commencing this action, the plaintiff served a notice of claim upon the City. However, the notice of claim contained no reference to any acts or omissions attributable to the City, made no mention of the culvert system or of any type of drainage system, and did not mention any decision to subdivide the nearby property. In support of its motion, the City established, prima facie, that the theories of liability alleged in the complaint were not included in the plaintiff's notice of claim ( see O'Brien v. City of Syracuse, 54 N.Y.2d at 358, 445 N.Y.S.2d 687, 429 N.E.2d 1158;Gabriel v. City of New York, 89 A.D.3d 982, 983, 933 N.Y.S.2d 360;Santoro v. Town of Smithtown, 40 A.D.3d at 737, 835 N.Y.S.2d 658;Monmasterio v. New York City Hous. Auth., 39 A.D.3d at 356, 833 N.Y.S.2d 498). In opposition, the plaintiff failed to raise a triable issue of fact and did not seek leave to serve a late notice of claim ( seeGeneral Municipal Law § 50–e[5] ). Accordingly, the Supreme Court should have granted the City's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it ( see Gabriel v. City of New York, 89 A.D.3d at 983, 933 N.Y.S.2d 360;Semprini v. Village of Southampton, 48 A.D.3d at 545, 852 N.Y.S.2d 208).
The Supreme Court also should have granted the neighbors' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. “A landowner will not be liable for damages to an abutting property caused by the flow of surface water due to improvements to his or her land, provided that the improvements were made in good faith to fit the property for some rational use, and that the water was not drained onto the other property by artificial means, such as pipes and ditches” ( Moretti v. Croniser Constr. Corp., 76 A.D.3d 1055, 1055, 908 N.Y.S.2d 132;see Kossoff v. Rathgeb–Walsh, 3 N.Y.2d 583, 588–589, 170 N.Y.S.2d 789, 148 N.E.2d 132). Here, the neighbors made a prima facie showing of entitlement to judgment as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718). In opposition, the plaintiff failed to raise a triable issue of fact as to whether artificial means were used to divert surface water from the neighbors' property onto his property, or whether the improvements to the neighbors' property were made in good faith ( see Moretti v. Croniser Constr. Corp., 76 A.D.3d at 1055–1056, 908 N.Y.S.2d 132;Hulse v. Simoes, 71 A.D.3d 1086, 1087, 899 N.Y.S.2d 268).
In light of the foregoing, we need not address the City's remaining contentions, inter alia, that the complaint was time-barred, that it did not receive prior written notice of the allegedly defective condition, as required by the Glen Cove City Charter § C4–4, and that it is entitled to governmental immunity.