Marino v. Dwyer-Berry Const. Corp.

• Decision Date: 30 January 1989
• Docket Number: DWYER-BERRY
• Citation: Marino v. Dwyer-Berry Const. Corp., 537 N.Y.S.2d 231, 146 A.D.2d 748 (N.Y. App. Div. 1989)
• Parties: Ronald MARINO, Respondent, v.CONSTRUCTION CORP., et al., Defendants, County of Dutchess, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 231

537 N.Y.S.2d 231

146 A.D.2d 748

Ronald MARINO, Respondent, v. DWYER-BERRY CONSTRUCTION CORP., et al., Defendants County of Dutchess, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 30, 1989.

Stephen J. Wing, Co. Atty., Poughkeepsie (Keith P. Byron, of counsel), for appellant.

Rosten & Rosten, Yorktown Heights (Bernard Meyerson, of counsel), for respondent.

Before MOLLEN, P.J., and THOMPSON, RUBIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for negligence, the defendant County of Dutchess appeals from an order of the Supreme Court, Dutchess County (Beisner, J.), entered June 29, 1987, which denied its motion to dismiss the plaintiff's complaint as against it.

ORDERED that the order is reversed, with costs, the motion is granted and the complaint is dismissed insofar as asserted against the County of Dutchess.

On June 3, 1985, subdivision map No. 7537 was approved by the Dutchess County Health Department and filed in the Dutchess County Clerk's office, with an indication that lot No. 8 had seven and one-half feet of clay loam, sufficient to install a sewerage system. Professional Engineer Michael Morris had allegedly confirmed that all the lots on this map satisfied the criteria for building. In addition, a legend declaring that the owner of the property was familiar with the map, its contents and its legends, and consented to its terms and conditions as well as to its filing, was signed by Richard G. Barger, on behalf of BNH Developing Corp. The specifications of the map corroborated the depth and percolation tests performed in June 1980 by engineer George Haughney, the results of which had been inspected by Robert Gray on behalf of the Dutchess County Health Department.

On or about March 26, 1986, all 11 lots included on map No. 7537 were conveyed by BNH Developing Corp. to Dwyer-Berry Construction Corp. (hereinafter Dwyer-Berry), which in turn had contracted on or about March 12, 1986, to sell lot No. 8 to the plaintiff. The plaintiff received title on April 10, 1986.

On May 21, 1986, the plaintiff informed the Dutchess County Health Department that he believed that the conditions existing at the site were not accurately reflected on the subdivision map in question. A Public Health Engineer visited the property and ascertained that the soil condition was not as represented on the map, and that consequently the proposed sewerage system was not feasible. By October 1986 the plaintiff had learned that the plot was "unbuildable," and this information was subsequently confirmed in a letter to him from the Dutchess County Supervising Public Health Engineer dated February 24,...