| National Fuel Gas Distrib. Corp. v Erie County Water Auth. |
| 2012 NY Slip Op 06693 [99 AD3d 1231] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| National Fuel Gas Distribution Corporation, Respondent, v ErieCounty Water Authority, Appellant. |
—[*1] Wilder & Linneball, LLP, Buffalo (Laura A. Linneball of counsel), forplaintiff-respondent.
Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.),entered April 12, 2011. The judgment awarded money damages to plaintiff following a nonjurytrial.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this action seeking damages resulting from a break indefendant's water main, which caused water to infiltrate plaintiff's nearby gas line. Following abifurcated nonjury trial on the issue of liability, Supreme Court concluded that defendant wasnegligent and that it was liable for plaintiff's damages caused by the leak. We affirm. We note atthe outset that the interlocutory judgment from which defendant's appeal was taken wassubsumed in the final judgment, from which no appeal was taken. Nevertheless, we exercise ourdiscretion to treat the notice of appeal as valid and deem the appeal as taken from the finaljudgment (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988, 988 [1988];see also CPLR 5520 [c]).
Defendant's contention on appeal that its decision whether to replace the subject water mainis entitled to governmental immunity is not properly before us. Defendant raised that contentionin its pretrial motion for summary judgment dismissing the amended complaint, and defendant'sappeal from the order denying that motion was dismissed by this Court based on defendant'sfailure to perfect the appeal in a timely manner. "[A] prior dismissal for want of prosecution actsas a bar to a subsequent appeal as to all questions that were presented on the earlier appeal"(Bray v Cox, 38 NY2d 350, 353 [1976]; see Dickerson v Woodbridge Constr.Group, 274 AD2d 945, 945-946 [2000]), and we decline to review defendant's contention inthe exercise of our discretion (see Faricelli v TSS Seedman's, 94 NY2d 772, 774 [1999]).
Viewing the evidence in the light most favorable to sustain the judgment rendered followingthis nonjury trial (see Matter of City ofSyracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d 168, 170 [2005]), we concludethat there is a fair interpretation of the evidence supporting the [*2]court's determination that defendant was negligent (seegenerally id.). The evidence established that, within the approximately nine years precedingthe break at issue, there had been four breaks in the water main in proximity to the subject break.Three of those prior breaks were the same type of break as the one that occurred here. In addition,plaintiff's expert testified that defendant should have replaced at least a portion of the water mainafter the previous breaks occurred and, contrary to defendant's contention, the court did not err increditing the testimony of that expert (see generally Cotton v Beames, 74 AD3d 1620, 1621-1622 [2010]).Thus, the court's determination that defendant had notice of a dangerous condition and that itfailed to make reasonable efforts to inspect the water main and repair the dangerous condition issupported by a fair interpretation of the evidence (see generally De Witt Props. v City of NewYork, 44 NY2d 417, 424-425 [1978]).
Contrary to the further contention of defendant, the court properly determined based on theevidence before it that defendant's negligence was the proximate cause of plaintiff's damages.Although two holes were discovered in plaintiff's gas line, plaintiff's leakage surveys indicatedthat the holes did not affect the functioning of the line, and defendant's distribution engineertestified that he was aware of prior incidents in which water from broken water mains hadinfiltrated nearby gas lines. The evidence thus supports the court's determination that " 'under allthe circumstances the chain of events that followed the negligent act or omission was a normal orforeseeable consequence of the situation created by the [defendant's] negligence' " (Sheffer v Critoph, 13 AD3d 1185,1186-1187 [2004]).
In light of our determination, we see no need to address defendant's remaining contentions.Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.