| Fireman's Fund Ins. Co. v County of Nassau |
| 2009 NY Slip Op 07582 [66 AD3d 823] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Fireman's Fund Insurance Company, as Subrogee of Herbert & IrisMarek, Appellant, v County of Nassau, Respondent. |
—[*1] Lorna B. Goodman, County Attorney, Mineola, N.Y. (Gerald R. Podlesak of counsel), forrespondent.
In a subrogation action to recover damages for payments by the plaintiff to its insureds forinjury to property, the plaintiff appeals from an order of the Supreme Court, Nassau County(McCarty, J.), dated December 23, 2008, which granted the defendant's motion for summaryjudgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The instant subrogation action arose after sewage effluent flooded the residence of theplaintiff's insureds located in the defendant County of Nassau during the course of a severe stormin October 2005. The Supreme Court granted the defendant's motion for summary judgmentdismissing the complaint, and we affirm.
A municipality is immune from liability "arising out of claims that it negligently designedthe sewerage system" (Tappan Wire &Cable, Inc. v County of Rockland, 7 AD3d 781, 782 [2004]; see Seifert v City ofBrooklyn, 101 NY 136, 144-145 [1886]; Urquhart v City of Ogdensburg, 91 NY 67,71 [1883]). However, a municipality "is not entitled to governmental immunity arising out ofclaims that it negligently maintained the sewerage system as these claims challenge conductwhich is ministerial in nature" (Tappan Wire & Cable, Inc. v County of Rockland, 7AD3d at 782, citing Biernacki v Village of Ravena, 245 AD2d 656, 657 [1997]; seeDe Witt Props. v City of New York, 44 NY2d 417, 423-424 [1978]; Moore v City of Yonkers, 54 AD3d397, 398 [2008]).
On its motion for summary judgment, the defendant demonstrated its entitlement tojudgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986])by submitting, inter alia, the affidavits of its engineers and other employees establishing that ithad no "notice of a dangerous condition or had reason to believe that the pipes have shifted ordeteriorated and are likely to cause injury," and that it regularly inspected and maintained thesubject sewer line (De Witt Props. v City of New York, 44 NY2d at 423-424; seeHoly Temple First Church of God in Christ v City of Hudson, 17 AD3d [*2]947, 947-948 [2005]; Tappan Wire & Cable, Inc. v County ofRockland, 7 AD3d at 782). The deposition testimony and affidavits further demonstratedthat the backflow flooding experienced by the insureds was caused by inordinately heavy rainsfollowing the severe storm, illegal connections to the sewer system by other homeowners,manhole covers that were improperly removed by persons or entities other than the defendant,and the deficiencies in the plumbing connections of the insureds' basement bathroom, for whichthey had not obtained permits.
In opposition to the defendant's prima facie showing, the plaintiff submitted, inter alia, anaffidavit of its expert who, without citing industry standards or conducting an inspection of thesubject premises, opined that the defendant caused the sewage backflow to the premises. Theexpert's conclusory opinion, which was based solely on speculation, was insufficient to raise atriable issue of fact with respect to whether the defendant negligently maintained its sewersystem (see Moore v City of Yonkers, 54 AD3d at 398; Hongach v City of New York, 8 AD3d622, 622-623 [2004]; Linden Towers Coop. #4 v City of New York, 272 AD2d 587[2000]; Biernacki v Village of Ravena, 245 AD2d at 657).
Since the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp.,68 NY2d at 324), the Supreme Court correctly granted the defendant's motion for summaryjudgment dismissing the complaint. Mastro, J.P., Balkin, Dickerson and Lott, JJ., concur.