Kenneths Fine Repairs, LLC v. State

• Decision Date: 25 November 2015
• Citation: 21 N.Y.S.3d 412,133 A.D.3d 1181
• Parties: KENNETHS FINE REPAIRS, LLC, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 1181
21 N.Y.S.3d 412

KENNETHS FINE REPAIRS, LLC, Appellant,
v.
STATE of New York, Respondent.

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

Nov. 25, 2015.

21 N.Y.S.3d 413

Somma & Sullivan, Vestal (Michael A. Somma of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

Before: McCARTHY, J.P., ROSE, LYNCH and DEVINE, JJ.

McCARTHY, J.P.

133 A.D.3d 1181

Appeal from a judgment of the Court of Claims (Schaewe, J.), entered July 24, 2014, which, among other things, granted summary judgment to defendant dismissing the claim.

Claimant owns real property in the Town of Fenton, Broome County adjacent to the Interstate 81 (hereinafter I–81) and Interstate 88 (hereinafter I–88) connector. That connector contains a drainage system that was designed and installed by defendant and that carries water and runoff to claimant's property, through which the water then flows into the Chenango River. Claimant redesigned the water runoff system on its property by installing a buried drainage pipe to carry the aforementioned water supply to the river.¹

In October 2011, claimant commenced an action in the Court of Claims to recover for damage to the drainage pipe that it had installed and other damages related to the fact that such drainage pipe had become clogged, causing flooding. In August 2013, claimant commenced a second action in the Court of Claims for alleged damages stemming from the continued discharge from the connector drainage system onto its property. After the claims were consolidated, claimant moved for summary judgment on the issue of liability. The Court of Claims

133 A.D.3d 1182

denied claimant's motion, searched the record and granted defendant summary judgment dismissing the claim (see CPLR 3212 [b] ), finding that the record established as a matter of law that defendant no longer owned the connector drainage system and was otherwise not negligent. Claimant appeals.

Contrary to claimant's initial contention, it was not entitled to any additional notice that the Court of Claims intended to search the record to determine whether summary judgment was warranted for either party. CPLR 3212(b) provided claimant with notice that its motion for summary judgment would empower the court to consider whether judgment as a matter of law in favor of defendant was warranted, and the statute requires no further notice to claimant. Further, defendant's

21 N.Y.S.3d 414

contention that summary judgment was premature because additional discovery is required is unavailing. That argument is unpreserved given that claimant did not seek additional discovery; instead, claimant took a directly contrary position by moving for summary judgment on the issue of liability (see Hush v. Taylor, 84 A.D.3d 1532, 1533, 923 N.Y.S.2d 284 [2011] ).

In addition, the Court of Claims properly granted defendant summary judgment dismissing the claim. In general, a landowner's liability for the condition of real estate expires when he or she transfers possession and control of that real estate (Conneely v. Herzog, 33 A.D.3d 1065, 1066, 822 N.Y.S.2d 662 [2006] ; Edwards v. Van Skiver, 256 A.D.2d 957, 958, 681 N.Y.S.2d 893 [1998] ). As is relevant here, a narrow exception to this rule exists if the transferor created a defective structure that remains on the property and poses an...