| Bartley v County of Orange |
| 2013 NY Slip Op 07701 [111 AD3d 772] |
| November 20, 2013 |
| Appellate Division, Second Department |
| Darlene Bartley et al., Respondents, v County ofOrange, Appellant, et al., Defendant. |
—[*1] Feerick Lynch MacCartney, PLLC, South Nyack, N.Y. (Mary E. Marzolla ofcounsel), for respondents.
In an action, inter alia, to recover damages pursuant to Navigation Law § 181,the defendant County of Orange appeals, as limited by its brief, from so much of an orderof the Supreme Court, Orange County (Onofry, J.), dated May 22, 2012, as denied thatbranch of its motion which was to dismiss the first cause of action insofar as assertedagainst it on the ground that the notices of claim served upon it by the plaintiffs werelegally insufficient.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs are the owners of certain residential properties located near an OrangeCounty Department of Public Works facility. The plaintiffs served timely notices ofclaim upon the defendant County of Orange, alleging, among other things, that theCounty was "[n]egligent, reckless and careless" in the filling, inspection, andmaintenance of underground fuel storage tanks and other machinery used at the facility.The notices of claim alleged that, as a result of the foregoing, fuel spills, leakage, andseepage occurred, causing contamination of the soil and groundwater of the plaintiffs'properties. According to the notices of claim, the plaintiffs' water wells allegedly werecontaminated by a gasoline additive, which caused property damage and personal injury.The notices of claim did not specifically recite that the County was subject to strictliability for a violation of Navigation Law § 181 arising from the spills, leakage,and seepage, although the first cause of action in the complaint alleged such a cause ofaction.
The County moved, inter alia, to dismiss the first cause of action insofar as assertedagainst it on the ground that the notices of claim failed expressly to allege a violation ofNavigation Law § 181 and, thus, were legally insufficient to place it on notice thatthe plaintiffs intended to assert that cause of action. In denying that branch of theCounty's motion, the Supreme Court determined that a notice of claim was not requiredto include information or allegations specific to a Navigation Law § 181 cause ofaction and that, in any event, the notices of claim served by the [*2]plaintiffs were sufficient to place the County on notice thatthe plaintiffs intended to assert such cause of action.
Contrary to the Supreme Court's conclusion, the plaintiffs, as a condition precedentto the assertion of Navigation Law § 181 cause of action, were required to serve anotice of claim that included information and allegations specific to their NavigationLaw § 181 cause of action. County Law § 52 requires a notice of claim to beserved upon the County, and applies to any claim for "for invasion of personal orproperty rights, of every name and nature" and to "any other claim for damages arising atlaw or in equity, alleged to have been caused or sustained in whole or in part by orbecause of any misfeasance, omission of duty, negligence or wrongful act on the part ofthe county" (County Law § 52). The assertion of a Navigation Law § 181cause of action against the County, which could result in the County being held strictlyliable for all cleanup costs and damages resulting from a discharge of petroleum, issubject to the broad notice-of-claim requirements of County Law § 52 (seePicciano v Nassau County Civ. Serv. Commn., 290 AD2d 164, 170-171 [2001]).
However, the Supreme Court correctly determined that the plaintiffs' notices of claimwere sufficient to apprise the County that they intended to pursue a cause of actionpremised upon a violation of Navigation Law § 181. The plaintiffs were notrequired to "state a precise cause of action in haec verba" in their notices of claim(DeLeonibus v Scognamillo, 183 AD2d 697, 698 [1992]). "The test of thesufficiency of a [n]otice of [c]laim is merely 'whether it includes information sufficient toenable the [municipality] to investigate' " the claim (Brown v City of New York,95 NY2d 389, 393 [2000], quoting O'Brien v City of Syracuse, 54 NY2d 353,358 [1981]). Here, the plaintiffs' notices of claim set forth conduct on the part of theCounty which allegedly caused the discharge of petroleum onto the plaintiffs' properties,thereby resulting in damage to the properties. The notices of claim provided informationsufficient to enable the County to investigate the alleged fuel spills, leakage, and seepagewhile information concerning the alleged fuel spills, leakage, and seepage was stillreadily available. As such, the notices of claim were sufficient to alert the County to thepotential Navigation Law § 181 cause of action, and afforded the County ampleopportunity to promptly investigate the alleged spills, leakage, and seepage underlyingthat cause of action. Accordingly, the Supreme Court properly denied that branch of theCounty's motion which was to dismiss the first cause of action insofar as asserted againstit. Dickerson, J.P., Chambers, Lott and Cohen, JJ., concur.