LaBarbera v. The Vill. of Sleepy Hollow

• Court: New York Supreme Court
• Writing for the Court: RUDERMAN, J.
• Citation: LaBarbera v. The Vill. of Sleepy Hollow, 2018 NY Slip Op 34205(U), Index 68942/2016 (N.Y. Sup. Ct. Oct 01, 2018)
• Decision Date: 01 October 2018
• Docket Number: Index 68942/2016
• Parties: RAY LaBARBERA, DIANE DELLA GRECA, ANHU LI and XIN WEI XU, Plaintiffs, v. THE VILLAGE OF SLEEPY HOLLOW, HIETKAMP, INC. & SAFECO INSURANCE COMPANY OF INDIANA, Defendants.

2018 NY Slip Op 34205(U)

RAY LaBARBERA, DIANE DELLA GRECA, ANHU LI and XIN WEI XU, Plaintiffs,
v.
THE VILLAGE OF SLEEPY HOLLOW, HIETKAMP, INC. & SAFECO INSURANCE COMPANY OF INDIANA, Defendants.

Index No. 68942/2016

Supreme Court, Westchester County

October 1, 2018

Unpublished Opinion

DECISION & ORDER

RUDERMAN, J.

The following papers were considered in connection with the motion pursuant to CPLR 3212 by (1) defendants The Village of Sleepy Hollow (the "Village") and Hietkamp, Inc. ("Hietkamp") for summary judgment dismissing the first two causes of action of the complaint, brought against them by plaintiffs Ray LaBarbera and Diane Della Greca, and all cross claims asserted against them (sequence 1); and (2)by defendant Safeco Insurance Company of Indiana, Inc. ("Safeco") for summary judgment dismissing the third cause of action of the complaint, brought against it by Anhu Li and Xin Wei Xu (sequence 2):

Papers - Sequence	Numbered
Notice of Motion, Amended Notice of Motion, Affirmation, Affidavits, Exhibits attached to Affidavits, Memorandum of Law, Exhibits A - N	1
Affirmation in Opposition, Exhibits 1 - 6	2
Reply Affirmation, Memorandum of Law, Exhibit A Numbered	3
Sequence 2
Notice of Motion, Affirmation, Affidavit, Memorandum of Law, Exhibits A - E	1
Affirmation in Opposition, Exhibits A- B	2
Reply Affirmation	3

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Plaintiffs commenced this act~on to recover damages for property damage sustained as a result of water damage to the premises located at 10 Anderson Avenue, in Sleepy Hollow, New York, occupied by plaintiffs Ray LaBarbera and Diane Della Greca and owned by plaintiffs Anhu Li and Xin Wei Xu. The complaint alleges that on or about October 4, 205,, the plaintiffs' premises, in particular the basement and the first floor apartment rented by plaintiffs LaBarbera and Della Greca, sustained damage as a result of water leaking and emanating from an aboveground pipe and hose used by defendant Hietkamp in connection with its contract with the Village to perform maintenance and repairs of the Villages water mains. Plaintiffs allege that at approximately 5:00 A.M. on October4, 2015, plaintiff LaBarbera awoke to step into three inches of water in his bedroom and soon discovered the apartment to be flooded with water.

The complaint further alleges that defendant Safeco had issued a home insurance coverage policy for the premises that was in full force and effect on October 4, 205.. According to the complain,, following the incident on October 4, 2015, plaintiffs Li and Xu filed a claim with Safeco which was subsequently denied. This action was commenced after the denial of the claim. Defendant Safeco served its verified answer and cross claims on January 12, 2017, and defendants Village and Hietkamp served their verified answer on or about February 2, 2017.

Defendants Village and Hietkamp now move pursuant to CPLR 3212 for summary judgment dismissing the complaint and all cross claims asserted against them. The Village contends, inter alia, that plaintiffs' claims are barred by the written notice requirement of the Village Code. Further, it contends that it cannot be held liable for acts conducted in the performance of a governmental function. Hietkamp argues that it did not owe a contractual or

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statutory duty to plaintiffs. It also argues that it lacked either actual or constructive notice of any defective condition at that location. Defendants assert that since there are no genuine issues of material fact, they are entitled to judgment as a matter of law. Further, defendants argue that they are entitled to summary judgment dismissing Safeco's cross claims as academic in light of their establishing their prima facie entitlement to dismissal of the complain..

Defendant Safeco moves pursuant to CPLR 3212 to dismiss the third cause of action in the complaint brought against it by plaintiffs Li and Xu, sounding in breach of contract. Safeco argues that the plaintiff Li and Xu's claim was properly denied pursuant to policy exclusions.

Analysis

When a defendant moves for summary judgment, it has the initial burden to make a showing that, if unrebutted, establishes that it is entitled to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). On a motion for summary judgment dismissing a complain,, all of the evidence must be viewed in the light most favorable to the opponent of the motion and all reasonable inferences must be resolved in that party's favor (see Boyd v Rome Realty Leasing Ltd., 21 A.D.3d 920, 921 [2d Dept 2005]).

The defendant Village argues that the plaintiffs' claims are barred by the prior written notice requirements of the Code of the Village of Sleepy Hollow. Section 276-1 of the Village's Code provides, in relevant part, "No civil action shall be maintained against the Village of Sleepy Hollow for damages or injuries to person or property . . . unless written notice of such defective, unsafe, dangerous or obstructed condition ... was actually give to the Village Clerk of the Village." Here, through the affidavit of Anthony Giacco, the Village Administrator, the Village

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established that no prior written notice of the condition was ever provided to it 'as was required by the Code (see Village Code of the Village of Sleepy Hollow, S 276-1; Yarborough v City of New York, 10 N.Y.3d 726, 727 [2008]).

However, an exception to the prior written notice requirement exists when the municipality has caused or created a defect or dangerous condition through an affirmative act of negligence (see Amabile v City of Buffalo, 93 N.Y.2d 471, 474 [1999]; Santelises v Town of Huntington, 124 A.D.3d 863, 865-866 [2d Dept 2015]; White v Village of Hempstead, 41 A.D.3d 709, 710 [2d Dept; 2007]; Tumminia v Cruz Construction Corp., 41 A.D.3d 585 [2d Dept 2007]; Schuman v City of New York, 304 A.D.2d 643 [2d Dept 2003]; Combs v Village of Freeport, 139 A.D.2d 688 [2d Dept 1988]; Freeman v County of Nassau, 95 A.D.2d 363 [2d Dept 1983]). In fact, the Second Department has held that an issue of fact precluding summary judgment may exist regarding an affirmative act of negligence by a municipality as a result of its contractor's actions (see Tumminia v Cruz Construction Corp., 41 A.D.3d at 586; see also Santelisesv Town of Huntington, 124 A.D.3d at 866; Combs v Village of Freeport, 139 A.D.2d at 689; Hill v Fence Man, Inc., 78 A.D.3d 1002, 1004 [2d Dept 2010]). Further, since it is well., settled that a municipality owns its streets and water mains and has a nondelegable duty to maintain them in a reasonably safe condition(see Lopes v Rostad, 45 N.Y.2d 617, 623 [1978]; DeWitt Props. v City of New York, 44 N.Y.2d 417, 425 [1978]; Hill v Fence Man, Inc. 78 A.D.3d at 1004 [2d Dept 2010]; Combs v Village of Freeport, 139 A.D.2d at 689), it cannot avoid liability on the ground that it was caused by an independent contractor as part of a greater municipal improvement project (see Combs v Village of Freeport, 139 A.D.2d at 689; see also Tumminia v Cruz Construction Corp., 41 A.D.3d at 586).

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Here, in support of their motion, defendants rely on, inter alia, the deposition testimony of Hietkampss general foreman, Janusz Grabowsk,, and the testimony of the project manager engineer with Dolph Rotfeld Engineering, Daniel Peluso, who was assigned to the Village water main relining maintenance project during the relevant period. Defendants also offer the affidavits of Daniel Peluso and Anthony Giacco, the Village Administrator. According to Giacco, on or about June 2, 2015, the defendant Village awarded defendant Hietkamp a contract to clean and line existing water mains in the Village. According to Peluso, during the cleaning/relining of the water mains, residents would be provided temporary water service through the use of bypass pipes connected to service hoses. According to Peluso, prior to the subject water leak, the service line hoses had not been connected to the residences on Anderson Avenue, including the plaintiffs. In his affidavit in support of this motion, Peluso further alleged that the service hoses, while connected to the temporary bypass pipes, had not yet been turned on and the residences on Anderson Avenue were still being supplied with water from the main water line. Grabowsk, Hietkamp's foreman, also testified that the temporary bypass pipe was shut off from its connection to the fire hydrant and that there was no water running through the temporary bypass pipe when he left the worksite on October 2, 2015. Accordingly, defendants...