Alaimo v. Town of Fort Ann, 506036.

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Lahtinen
• Citation: 883 N.Y.S.2d 321,2009 NY Slip Op 05238,63 A.D.3d 1481
• Decision Date: 25 June 2009
• Docket Number: 506036.
• Parties: ANN MARIE ALAIMO et al., Respondents-Appellants, v. TOWN OF FORT ANN et al., Apellants-Respondents.

63 A.D.3d 1481 883 N.Y.S.2d 321 2009 NY Slip Op 05238 ANN MARIE ALAIMO et al., Respondents-Appellants,
v.
TOWN OF FORT ANN et al., Apellants-Respondents. 506036. Appellate Division of the Supreme Court of New York, Third Department. Decided June 25, 2009.

Cross appeals from an order of the Supreme Court (Krogmann, J.), entered March 21, 2008 in Washington County, which, among other things, partially denied defendants' motions to dismiss the complaint.

LAHTINEN, J.

The Hadlock Pond dam, which had just been reconstructed, failed catastrophically on July 2, 2005. Hadlock Pond is located in the Town of Fort Ann, Washington County, and is created by a dam owned by defendant Town of Fort Ann. The original dam was constructed in the late 1800s, with subsequent repair and replacement over the years. The cost of maintaining and operating the dam is reportedly paid from revenue received from a separate taxing district (Lake Hadlock Park District), which is comprised of owners with frontage on or access rights to the pond. An apparent problem with the dam's spillway resulted in the subject reconstruction project, which was allegedly completed in the spring of 2005. Shortly thereafter, the dam failed and numerous lawsuits ensued. In those actions, it was asserted that the plans were designed by defendant HTE Northeast, Inc., the work was performed by defendant Kubricky Construction Corporation and the materials were tested by defendant Atlantic Testing Laboratories, Ltd.

Plaintiffs, owners from the Lake Hadlock Park District, alleged,

63 A.D.3d 1482

among other things, causes of action in negligence and nuisance. While these upstream owners did not suffer the type of damages from sudden rushing water sustained by owners of property located downstream from the dam, they nonetheless asserted various damages including loss of use of the pond and damage to their property. Defendants moved to dismiss the complaint for failure to state a cause of action. Plaintiffs opposed the motions and cross-moved for leave to serve an amended complaint adding a cause of action alleging that they were third-party beneficiaries of the Town's contracts with other defendants. Supreme Court dismissed one cause of action (the third cause of action which was premised upon ECL 15-0507), limited the nuisance cause of action and otherwise denied defendants' motions. Plaintiffs' cross motion to amend was also denied. Defendants appeal and plaintiffs cross-appeal.

We consider first defendants' appeal, in which they argue that they did not owe a duty to plaintiffs—upstream owners—and, accordingly, that the action should have been dismissed in its entirety. Procedurally, defendants' appeal involves a CPLR 3211 motion to dismiss, where "the court will `accept the facts as alleged in the complaint as true [and] accord plaintiffs the benefit of every possible favorable inference'" (Nonnon v City of New York, 9 NY3d 825, 827 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "[T]he dispositive inquiry is whether [plaintiffs have] a cause of action and not whether one has been stated, i.e., `whether the facts as alleged fit within any cognizable legal theory'" (IMS Engrs.-Architects, P.C. v State of New York, 51 AD3d 1355, 1356 [2008], lv denied 11 NY3d 706 [2008], quoting Leon v Martinez, 84 NY2d at 87-88).

While the scope of duty presents a legal question involving the weighing of a variety of factors (see 532 Madison Ave. Gourmet Foods v Finlandia Ctr., 96 NY2d 280, 288 [2001]; Palka v...