Carbonaro v. Town of N. Hempstead

• Decision Date: 11 July 2012
• Citation: 2012 N.Y. Slip Op. 05491,948 N.Y.S.2d 645,97 A.D.3d 624
• Parties: Nicholas CARBONARO, et al., appellants, v. TOWN OF NORTH HEMPSTEAD, et al., respondents.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 624

948 N.Y.S.2d 645

2012 N.Y. Slip Op. 05491

Nicholas CARBONARO, et al., appellants,

v.TOWN OF NORTH HEMPSTEAD, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

July 11, 2012.

William A. DiConza, Oyster Bay, N.Y., for appellants.

Richard S. Finkel, Town Attorney, Manhasset, N.Y. (Mitchell L. Pitnick of counsel), for respondent Town of North Hempstead.

John Ciampoli, County Attorney, Mineola, N.Y. (Robert F. Van der Waag of counsel), for respondent County of Nassau.

WILLIAM F. MASTRO, A.P.J., DANIEL D. ANGIOLILLO, LEONARD B. AUSTIN, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for injury to property, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Lally, J.), entered April 5, 2011, which granted the motion of the defendant Town of Hempstead and the separate motion of the defendant County of Nassau for summary judgment dismissing the complaint insofar as asserted against each of them and denied the plaintiffs' cross motion, in effect, for summary judgment on the issue of liability.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting the motion of the defendant County of Nassau for summary judgment dismissing the complaint insofar as asserted against it, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with one bill of costs to the defendant Town of North Hempstead payable by the plaintiffs, and one bill of costs to the plaintiffs payable by the defendant County of Nassau.

The plaintiffs commenced this action against the defendants Town of North Hempstead and the County of Nassau to recover damages resulting from the flooding of their residence on July 18, 2007. The plaintiffs allege that the flooding was caused by deficiencies in a storm drainage system, and that the Town and the County each own separate components of that system. The defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them, and the plaintiffs cross-moved, in effect, for summary judgment on the issue of liability. The Supreme Court granted the defendants' separate motions, and denied the plaintiffs' cross motion.

A municipality is immune from liability “arising out of claims that it negligently designed [a] sewerage system” or storm drainage 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;Moore v. City of Yonkers, 54 A.D.3d 397, 863 N.Y.S.2d 80;Biernacki v. Village of Ravena, 245 A.D.2d 656, 657, 664 N.Y.S.2d 682).

The Town established, prima facie, that it was not negligent in the maintenance of the relevant storm drainage facilities that were in its ownership and control, and in opposition, the plaintiffs failed to raise a triable issue of fact as to negligent maintenance of those facilities ( see Papadopoulos v. Town of N. Hempstead, 84 A.D.3d 768, 768–769, 922 N.Y.S.2d 481;Azizi v. Village of Croton–on–Hudson, 79 A.D.3d 953, 955, 914 N.Y.S.2d 232;Fireman's Fund Ins. Co. v. County of Nassau, 66 A.D.3d at 824, 887 N.Y.S.2d 242;Biernacki v. Village of Ravena, 245 A.D.2d at 657–658, 664 N.Y.S.2d 682). Further, the evidence as to the Town's alleged failure to undertake certain improvements or renovations to the facilities related only to the design of the system, for which the Town may not bear liability ( see Tappan Wire & Cable, Inc. v. County of Rockland, 7 A.D.3d at 782, 777 N.Y.S.2d 517). In addition, any evidence relative to the theories of...