| Moore v City of Yonkers |
| 2008 NY Slip Op 06636 [54 AD3d 397] |
| August 19, 2008 |
| Appellate Division, Second Department |
| Ava Moore, Respondent, v City of Yonkers,Appellant. |
—[*1] Lawrence J. Eisenberg, White Plains, N.Y. for respondent.
In an action to recover damages for negligence, the defendant appeals, as limited by its brief,from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), entered June13, 2007, as denied that branch of its motion which was for summary judgment dismissing thecomplaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was for summary judgment dismissing the complaint isgranted.
From 1999 to 2004, the plaintiff's house flooded during five separate rain storms when acatch basin situated at the top of her driveway overflowed, causing the excess water to flowdown her sloped driveway and into her home. After the third flood, the City of Yonkersperformed construction work on and below the catch basin in front of the plaintiff's driveway.After the fourth flood, the City performed construction work on the drainage system under theplaintiff's street and under the surrounding streets. After the fifth flood, the plaintiff filled in herdriveway, causing it to slope toward the street as opposed to toward her home; she has not hadany additional flooding since making the alteration to the driveway. The plaintiff sought recoveryfor the damages sustained from the fourth and fifth floods, which occurred after the City'sconstruction projects.
A municipality is immune from liability "arising out of claims that it negligently designed thesewerage system" (Tappan Wire &Cable, Inc. v County of Rockland, 7 AD3d 781, 782 [2004]; see [*2]Seifert v City of Brooklyn, 101 NY 136, 144-145 [1886];Urquhart v City of Ogdensburg, 91 NY 67, 71 [1883]). However, a municipality "is notentitled to governmental immunity arising out of claims that it negligently maintained thesewerage system as these claims challenge conduct which is ministerial in nature" (TappanWire & Cable Inc. v County of Rockland, 7 AD3d at 782, citing Biernacki v Village ofRavena, 245 AD2d 656, 657 [1997]; see McCarthy v City of Syracuse, 46 NY 194,196-197 [1871]).
The City met its initial burden on that branch of its motion which was for summary judgmentby making a prima facie showing of entitlement to judgment as a matter of law through thesubmission, inter alia, of the deposition testimony of the plaintiff, indicating that she hadexperienced severe flooding prior to the City's construction projects and the deposition testimonyand affidavit of a former assistant city engineer indicating that the flooding was caused by heavyrains, the location of the plaintiff's home in a low-lying area, and the downward slope of thedriveway (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
In opposition to the City's prima facie showing, the plaintiff submitted, inter alia, an affidavitof her expert who, relying on a proposed plan for the City's construction project, opined that theinitial construction did not resolve the drainage problem and that the subsequent constructioncould have exacerbated the problem. The plaintiff's expert admitted his lack of knowledge as towhether the City followed the proposed plan. The expert's opinion was speculative, conclusory,and insufficient to raise a triable issue of fact with respect to whether the City negligentlymaintained the drainage system (see Murphy v Conner, 84 NY2d 969, 972 [1994]; Donato v Mikrut, 33 AD3d 654,655 [2006]; Hongach v City of NewYork, 8 AD3d 622 [2004]; Linden Towers Coop. #4 v City of New York, 272AD2d 587 [2000]; Biernacki v Village of Ravena, 245 AD2d 656, 657 [1997]).Accordingly, the Supreme Court should have granted that branch of the City's motion which wasfor summary judgment dismissing the complaint. Fisher, J.P., Carni, McCarthy and Belen, JJ.,concur.