Goldstein v. Monroe County

• Decision Date: 13 November 1980
• Docket Number: No. 1,1
• Parties: Jeannette GOLDSTEIN, Respondent, v. COUNTY OF MONROE, Irondequoit Bay Pure Waters District, Appellants, and Town of Pittsford, Town of Brighton, Pittsford Sewer Commission, and Brighton-Pittsford Joint Sewage Commission, Defendants.
• Court: New York Supreme Court — Appellate Division

Page 966

432 N.Y.S.2d 966

77 A.D.2d 232

Jeannette GOLDSTEIN, Respondent, v. COUNTY OF MONROE, Irondequoit Bay Pure Waters District, Appellants, and Town of Pittsford, Town of Brighton, Pittsford Sewer

Commission No. 1, and Brighton-Pittsford Joint

Sewage Commission, Defendants.

Supreme Court, Appellate Division, Fourth Department.

Nov. 13, 1980.

John D. Doyle, County Atty., Rochester, for appellants (Christine E. Burke, Rochester, of counsel).

Faraci, Guadagnino, Lange & Johns, Rochester, for respondent (Joseph Regan, Rochester, of counsel).

Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, CALLAHAN and MOULE, JJ.

SCHNEPP, Justice.

Plaintiff is the owner of improved real property situate in the Town of Pittsford, Monroe County, to the rear of which is located a body of water known as Knowlton Creek. The creek flows in a westerly direction from the east side of East Avenue to the east branch of Allens Creek. Plaintiff's complaint alleges that the defendants increased the volume and rate of water entering Knowlton Creek which raised the water table on her property and resulted in water damage to her home in August 1978. Defendants, County of Monroe ("County") and Irondequoit Bay Pure Waters District ("Pure Waters"), appeal from an order denying their motion to dismiss the complaint pursuant to CPLR 3211 (subd. (a), pars. 5 and 7).

Although we reverse, we agree with Special Term's denial of the motion to dismiss based on plaintiff's failure to file a timely notice of claim within 90 days after either the alleged rise of the water table on her property or the discovery of earlier damage to her home (CPLR 3211, subd. (a), par. 5). Plaintiff's complaint alleges a continuing wrong with recurring causes of action in negligence and nuisance and limits damages to those caused by the alleged unlawful acts sustained within 90 days preceding the date of filing of the notice of claim (Thomann v. City of Rochester, 256 N.Y. 165, 176 N.E. 129; Meruk v. City of New York, 223 N.Y. 271, 276, 119 N.E. 571; Doran v. Town of Cheektowaga, 54 A.D.2d 178, 388 N.Y.S.2d 385).

On their motion to dismiss for failure to state a cause of action (CPLR 3211, subd. (a), par. 7), the County and Pure Waters submitted affidavits negating factual allegations in the complaint. Plaintiff served a reply affidavit to which exhibits were attached and the moving defendants answered with supplemental affidavits and exhibits. The record indicates that Special Term treated the motion as one for summary judgment with the implied knowledge and assent of the plaintiff who may not now assert that she failed to receive "adequate notice" of this treatment by the court (CPLR 3211, subd. (c)). Plaintiff opposed the motion fully, taking issue with the factual material submitted by the defendants, and made an evidentiary showing on her own behalf, and does not claim that there are additional facts to be presented in her favor. The focus was not on whether the complaint stated a cause of action but on whether there was evidentiary support for the pleading, and the affidavits were received and considered only to determine whether summary judgment should be granted. Although the law is clear that affidavits received on an unconverted motion to dismiss are not to be examined to determine whether there is evidentiary support for the pleading, the court and the parties treated the motion as one for summary judgment and plaintiff used the opportunity to make an appropriate record (see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 401 N.Y.S.2d 182, 372 N.E.2d 17; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970). The court examined this record and denied the motion. In the order, apparently prepared and submitted by the plaintiff, the court specifically recited that questions of fact existed with respect to the issues raised upon the motion: findings necessarily connected with summary judgment (see Monteferrante v. New York City Fire Dept., 63 A.D.2d 576, 404 N.Y.S.2d 629, affd. 47 N.Y.2d 737, 417 N.Y.S.2d 253, 390 N.E.2d 1177; Wolcott v. Broughton, 57 A.D.2d 1022, 395 N.Y.S.2d 705). Where there are sufficient indicia that a motion will be treated as one for summary judgment, a party may not be heard to claim that it did not have notice of the court's intention. The inquiry now is whether plaintiff has a cause of action rather than whether she has properly stated one (Kelly v. Bank of Buffalo, 32 A.D.2d 875, 302 N.Y.S.2d 60). We hold that the County and Pure Waters cannot be held liable under the factual showing which has been made and their motion to dismiss the complaint should have been granted.

Plaintiff, although recognizing the legal principles that a municipality cannot be held liable for defective planning, increase in surface waters and failure to clean creek and stream beds, claims that the County and Pure Waters, through their control over storm and sanitary sewers, caused surface waters from a large drainage area in the Town of Pittsford to be collected and artificially channeled into Knowlton Creek so as to deposit debris in the creek bed, raise the water level in the creek and the water table on her property, and cause damage to her home. In their moving affidavits, these defendants made uncontroverted allegations that the design, construction and maintenance of storm and sanitary sewers in the Town of Pittsford are predominately town functions. Pure Waters' extrinsic proof established that its only involvement relates to the Allens Creek sanitary sewer interceptor which is designed to pick up and transmit sewage from the local system to the treatment plant. The County established that due to the elevation points of the county storm sewers constructed along county highways waters collected by these sewers do not empty into but in fact flow away from the Knowlton Creek drainage area and that the County is not responsible for the drainage of any state road. Pure Waters' proof affirmatively demonstrated that its sanitary sewer interceptor which is located over one-half mile from plaintiff's property, does not carry storm drainage, did not alter existing storm water pipes in the Town of Pittsford, reroute them or force these sewer pipes to discharge their contents into the Knowlton Creek drainage area and that the portion of the interceptor sewer in the Town of Pittsford is inoperable.

It is clear that before liability can be imposed on a municipality performing a governmental function there must be an affirmative act which either causes or sets in motion a chain of events leading to the injury (Schuster v. City of New York, 5 N.Y.2d 75, 180 N.Y.S.2d 265, 154 N.E.2d 534; Dunham v. Vil. of Canisteo, 303 N.Y. 498, 104 N.E.2d 872). Further, a municipal corporation is not...