Opinion
August 1, 1961
The defendant appeals from an order of Special Term granting summary judgment to the plaintiff in an action to recover damages arising from the failure of the defendant to comply with sections 1115-1119 of the Public Health Law and further denying defendant's motion to dismiss the amended complaint for failure to state a cause of action. The defendant was the owner of a large tract of land in Sullivan County and throughout the years sold most of it until there remained, in 1954, a large interior tract. Thereafter he sold from the remaining tract 17 parcels of a size suitable for residential building purposes and on 10 of the parcels, homes were constructed. In 1958 the plaintiff purchased a parcel and the tract having never been platted, mapped or filed, the description in the deed was by metes and bounds. A well was drilled and after determining there was sufficient water, the plaintiff started the construction of his home and when it was near completion, it was determined the water from the well was dirty and soapy. A test conducted by the Department of Health revealed the well was polluted. A second well was drilled and eventually the water was determined to be and at the commencement of this action still was satisfactory. The record disclosed several possible reasons for the pollution of the first well, including a claim that the lots were too small in acreage for both water and sewage. Section 1115 defines a "realty subdivision" as "any tract of land which is hereafter divided into five or more parcels along an existing or proposed street * * * for sale or for rent as residential lots * * * regardless of whether the lots or plots to be sold or offered for sale * * * are described by metes and bounds or by reference to a map or survey of the property or by any other method of description". Section 1116 states: "1. No subdivision or portion thereof shall be sold, offered for sale, leased or rented by any corporation, company or person, and no permanent building shall be erected thereon, until a plan of such subdivision shall be filed with and approved by the department. 2. Such plan shall show methods for obtaining and furnishing adequate and satisfactory water supply and sewerage facilities to said subdivision. 3. The installation of such facilities shall be in accordance with the plans or any revision or revisions thereof approved by the department." It is conceded that the defendant never filed any plans for a subdivision with the department and the broad policy and sweeping language of section 1115 supports the conclusion that at some point in time subsequent to the sale of the first parcel in 1954 and prior to the sale to the plaintiff in 1958, the defendant's initial solid tract of land became a subdivision within the meaning of the Public Health Law and he was thereby duty bound to satisfy the Department of Health that there were "methods for obtaining and furnishing adequate and satisfactory water supply and sewerage facilities to said subdivision". All that we decide at this time is, motion being made pursuant to subdivision 4 of rule 106 of the Rules of Civil Practice, that the complaint, on its face, states a cause of action. We further determine that the granting of summary judgment was improper as there are triable factual issues as to the cause of the initial pollution of the first well. Order granting summary judgment reversed and the motion denying the dismissal of the complaint affirmed. Bergan, P.J., Gibson, Herlihy and Taylor, JJ., concur. [ 25 Misc.2d 956.]