| Azizi v Village of Croton-on-Hudson |
| 2010 NY Slip Op 09461 [79 AD3d 953] |
| December 21, 2010 |
| Appellate Division, Second Department |
| Karim Azizi et al., Respondents, v Village ofCroton-on-Hudson, Appellant. |
—[*1] Russell J. Ippolito, Tarrytown, N.Y., for respondents.
In an action to recover damages for injury to property, the defendant appeals (1), as limited by itsbrief, from so much of an order of the Supreme Court, Westchester County (Liebowitz, J.), enteredJune 24, 2009, as denied its motion for summary judgment dismissing the complaint, and (2) from ajudgment of the same court (Loehr, J.), dated October 13, 2009, which, upon the denial of its motionpursuant to CPLR 4401, made at the close of the plaintiffs' case, for judgment as a matter of law forfailure to establish a prima facie case, and upon a jury verdict finding that the defendant was liable forthe injury to the subject property, and awarding the plaintiffs damages in the sum of $31,053.79, is infavor of the plaintiffs and against it in the principal sum of $31,053.79.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the defendant's motion for summary judgmentdismissing the complaint is granted, the order entered June 24, 2009, is modified accordingly, and thecomplaint is dismissed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and havebeen considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
The plaintiffs commenced this action against the defendant, Village of Croton-on Hudson, torecover damages resulting from sewage effluent that flooded the plaintiffs' residence on October 22,2006. The defendant moved for summary judgment on the grounds, inter alia, that it lacked priorwritten notice of a defect in its sewer system and that it did not negligently maintain its sewer system. Inan order entered June 24, 2009, the Supreme Court, referring only to the [*2]defendant's argument that it lacked prior written notice of the sewersystem defect, denied the defendant's motion for summary judgment. The matter proceeded to trial andthe jury found that the defendant had negligently maintained its sewer system and that such negligencewas a substantial factor in causing the sewer backup in the plaintiffs' home, and awarded the plaintiffsdamages in the principal sum of $31,053.79. The defendants appeals from the ensuing judgment andwe reverse.
A municipality is immune from liability "arising out of claims that it negligently designed the seweragesystem" (Tappan Wire & Cable, Inc. vCounty of Rockland, 7 AD3d 781, 782 [2004]; see Fireman's Fund Ins. Co. v County of Nassau, 66 AD3d 823, 824[2009]). However, a municipality "is not entitled to governmental immunity arising out of claims that itnegligently maintained the sewerage system as these claims challenge conduct which is ministerial innature" (Tappan Wire & Cable, Inc. v County of Rockland, 7 AD3d at 782; see De WittProps. v City of New York, 44 NY2d 417, 423-424 [1978]; Biernacki v Village ofRavena, 245 AD2d 656, 657 [1997]; Moore v City of Yonkers, 54 AD3d 397 [2008]). Nonetheless, amunicipality is not an insurer of its sewer system and cannot be held liable for injury unless it is shownthat the injury was caused by active negligence in the maintenance of the system (see De WittProps. v City of New York, 44 NY2d at 424).
In support of its motion for summary judgment, the defendant submitted, inter alia, the affidavit anddeposition testimony of the then-superintendent of its Department of Public Works (hereinafter DPW),who explained that the defendant maintained the sewer system by annually running a sewer jet hosethroughout the entire system and contracting with a third party to treat tree roots that may haveinfiltrated the sewer system. Further, the defendant submitted the affidavit of a general foreman of itsDPW, who averred that, based upon the defendant's annual maintenance and tree root control efforts,in the two years preceding the incident in question, DPW had not detected any sewage backupproblems. Therefore, the defendant established, prima facie, that it had no " 'notice of a dangerouscondition [and did not have] reason to believe that the pipes have shifted or deteriorated and are likelyto cause injury,' and that it regularly inspected and maintained the subject sewer line" (Fireman'sFund Ins. Co. v County of Nassau, 66 AD3d at 824, quoting De Witt Props. v City of NewYork, 44 NY2d at 423-424; see alsoHoly Temple First Church of God in Christ v City of Hudson, 17 AD3d 947 [2005]).
In opposition, the plaintiffs failed to raise a triable issue of fact as to whether the defendant "eitheraffirmatively breached a duty owed or . . . was actively negligent and the negligencecaused the flooding" (Biernacki v Village of Ravena, 245 AD2d at 657; see Chi-MingTang v Village of Geneseo, 303 AD2d 987 [2003]; Linden Towers Coop. #4 v City of NewYork, 272 AD2d 587 [2000]). The affidavit of the plaintiffs' expert was insufficient to raise atriable issue of fact as he opined, without citing industry standards or conducting an inspection of thesubject premises, that the defendant caused the sewage backflow to the premises (see Fireman'sFund Ins. Co. v County of Nassau, 66 AD3d at 824; Moore v City of Yonkers, 54 AD3dat 398; cf. Biernacki v Village of Ravena, 245 AD2d at 658).
Accordingly, the Supreme Court should have granted the defendant's motion for summaryjudgment dismissing the complaint.
In light of our determination, the defendant's remaining contentions have been rendered academic.
The plaintiffs' remaining contentions are not properly before this Court. Dillon, J.P., Angiolillo,Belen and Roman, JJ., concur.