Opinion
608632/16
11-19-2018
KEYSPAN GAS EAST CORPORATION d/b/a National Grid, Plaintiff, v. Richard K. SOMMER, Defendant.
Attorney for Plaintiff, David M. Israel, Esq., 111 John Street, Ste. 1115, New York, NY10038, 212-514-5000, davidmisraelesq@hotmail.com Attorneys for Defendant, David W. Allen, Esq., Martyn Toher Martyn & Rossi, Esqs., 330 Old Country Road, Ste. 211, Mineola, NY11501, 516-739-0000
Attorney for Plaintiff, David M. Israel, Esq., 111 John Street, Ste. 1115, New York, NY10038, 212-514-5000, davidmisraelesq@hotmail.com
Attorneys for Defendant, David W. Allen, Esq., Martyn Toher Martyn & Rossi, Esqs., 330 Old Country Road, Ste. 211, Mineola, NY11501, 516-739-0000
Jeffrey S. Brown, J. Defendant moves pursuant to CPLR 3212 for summary judgment dismissing plaintiff's complaint. Before this court is a negligence action for property damage. The complaint alleges that defendant failed to adequately inspect, repair and or maintain his water supply pipe thus causing it to fail, malfunction, rupture and/or break and causing damage to plaintiff National Grid's gas line. In particular, the complaint alleges that pursuant to New York State law, including Village Law § 11-1112, property owners, such as the defendant, are responsible to lay, maintain and keep in repair at their expense the water supply pipes and service pipes to which their property is connected. Plaintiff also contends that the defendant had actual and constructive knowledge of plaintiff's underground gas main, gas pipes, services and related equipment at the location of the occurrence.
According to the complaint, before May 2, 2015 ("date of occurrence"), the defendant owned and/or had a duty to maintain in good repair a water supply pipe that ran from the Incorporated Village of Garden City's water main, located underground in the vicinity and in front of his property, and connected to the property, which pipe supplied defendant's residence and property with water service, and defendant negligently and carelessly failed to reasonably and adequately inspect, repair and/or maintain the integrity of the water pipe. Plaintiff contends that the defendant knew or should have known that the water pipe was old, made of lead, had outlived its life, had deteriorated and was likely to break, rupture or burst. Further, plaintiff states that the water pipe deteriorated, which caused water to escape therefrom with great force and pressure caused a hole in plaintiff's gas main and great quantities of water to enter into and intrude the gas main. Plaintiff alleges that it was obliged to respond to the occurrence and make emergency repairs at a cost of about $100,000.00.
Defendant contends that there is no legal theory under which he can be held liable for the property damage incurred by the water leak from a pipe buried under the street in front of his home. Defendant contends that although Village Law § 11-1112 requires that supply pipes used by private owners and occupants "shall be laid and kept in repair" at the owner's expense, it does not make an owner liable for property damage stemming from concealed disrepair.
In support of this motion are three deposition transcripts: Robert Hughes (deposition) and Ronald Greig (50-h hearing) on behalf of the plaintiff, and the defendant Richard K. Sommers.
Robert Hughes, a lead supervisor for plaintiff, testified that he reviewed gas maps for two locations, the front of Mr. Sommer's house, 134 Meadebrook Road, and the front of a house at 107 Roxbury Road, the location where water had pooled and gas service failed. Initially, plaintiff replaced the gas service for the homeowner located at 107 Roxbury but this did not fix the problem. Plaintiff dug test holes in order to determine where the water leak was originating. A camera was inserted into the gas line and the employees of plaintiff were able to determine how the water was coming into the gas line. There was an actual hole in the gas pipe and water was entering the pipe. A leak repair clamp was placed on the pipe.
Ronald Greig testified at a 50-hearing, which was requested by the Village of Garden City after a Notice of Claim was filed. He is a Senior Field Supervisor for plaintiff. He testified that the subject water pipe was underneath the 4 inch gas main. The water pipe was made of lead. There was a hole in the water pipe which was directly underneath the gas main. The water got into the gas service which, in turn, stopped the gas from flowing in the gas pipe. There was a hole on the bottom of the gas pipe. Greig stated that National Grid is responsible for maintaining the line that goes from the home to the gas main and that they own the meter. Any maintenance on the other side of the meter is the responsibility of the homeowner. He testified that at about the time of the occurrence, a complaint came in from 107 Roxbury that the homeowner had no gas.
The defendant, Richard K. Sommer testified that he is the owner of 134 Meadebrook in Garden City. He first learned about the gas problem when workers started digging in front of his house. He learned that there was water getting into the gas line on Roxbury Road and a leak was found under the street in front of his house. He was advised that the water pipe was running under the gas pipe and they were touching and the electrolytic interaction between the pipes generated a hole. As a result of the pressure in the water pipe being greater than the gas pipe, the water went into the gas pipe.
In support of his motion, defendant raises three arguments. First, New York Village Law does not impose liability on property owners for property damage resulting from water leaks. Two, plaintiff's theory of liability imposes a heightened duty on property owners to take extraordinary care of their property. Three, the defendant had no notice of any water leaks and did not create the condition.
In opposition, plaintiff National Grid submits an affidavit of Brian G. Brady, an engineer in the Gas Transmission Engineering Department. National Grid first learned of the issue on March 20, 2015 when it received a no gas call from its customer Sarah Hoge. Her gas service was replaced at that time. However, the problem persisted and National Grid expended substantial time and resources over the following weeks to locate and remedy the problem. On May 2, 2015 National Grid determined that the source of the problem was from a hole in defendant's water service. This caused a pin hole in National Grid's nearby steel gas main causing water to enter the gas pipe. Repairs were made and as a result National Grid incurred expenses of $96,356.40. There is no evidence that the water pipe in question was ever replaced. At the time of the failure, the water pipe was 85 years old.
"It is well established that ‘the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.’ ( Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324 [508 N.Y.S.2d 923, 501 N.E.2d 572] [1986] ; see also William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 N.Y.3d 470, 475-476 [982 N.Y.S.2d 813, 5 N.E.3d 976] [2013] ; CPLR 3212[b] ). Once the movant makes the proper showing, ‘the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action’ ( Alvarez , 68 N.Y.2d at 324 [508 N.Y.S.2d 923, 501 N.E.2d 572] ). The ‘facts must be viewed in the light most favorable to the non-moving party’ ( Vega v. Restani Constr. Corp. , 18 N.Y.3d 499, 503 [942 N.Y.S.2d 13, 965 N.E.2d 240] [2012] [internal quotation marks omitted] ). However, bald, conclusory assertions or speculation
and ‘[a] shadowy semblance of an issue’ are insufficient to defeat summary judgment ( S.J. Capelin Assoc. v. Globe Mfg. Corp. , 34 N.Y.2d 338, 341 [357 N.Y.S.2d 478, 313 N.E.2d 776] [1974] ), as are merely conclusory claims ( Putrino v. Buffalo Athletic Club , 82 N.Y.2d 779, 781 [604 N.Y.S.2d 539, 624 N.E.2d 676] [1993] ).
( Stonehill Capital Management, LLC v. Bank of the West , 28 N.Y.3d 439, 45 N.Y.S.3d 864, 68 N.E.3d 683 [2016] ; see also Fairlane Financial Corp. v. Longspaugh , 144 A.D.3d 858, 41 N.Y.S.3d 284 [2d Dept. 2016] ; Phillip v. D & D Carting Co. , Inc. , 136 A.D.3d 18, 22 N.Y.S.3d 75 [2d Dept. 2015] ).
In the ordinary case, premises liability will attach where (1) the plaintiff was injured by a defective condition on defendant's premises, (2) the defendant either created the alleged condition or had actual or constructive notice of the condition, and (3) the defective condition was the proximate cause of the plaintiff's injury. ( Gordon v. American Museum of Natural History , 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986] ); see also Mougiannis v. Dermody , 87 A.D.3d 993, 929 N.Y.S.2d 323 [2d Dept. 2011] ; Antich v. McPartland , 293 A.D.2d 953, 740 N.Y.S.2d 728 [3d Dept. 2002]. When, however, " ‘a defect is latent and would not be discoverable upon a reasonable inspection, constructive notice may not be imputed’ ( Applegate v. Long Is. Power Auth., 53 A.D.3d 515, 516, 862 N.Y.S.2d 86 [2008] ; see Kane v. Peter M. Moore Constr. Co., Inc., 145 A.D.3d 864, 44 N.Y.S.3d 141 [2016] ; McMahon v. Gold, 78 A.D.3d 908, 909 [910 N.Y.S.2d 561 [2010]] ; Curiale v. Sharrotts Woods, Inc., 9 A.D.3d 473, 475 [781 N.Y.S.2d 47 [2004]] ; Lee v. Bethel First Pentecostal Church of Am., 304 A.D.2d 798, 800 [762 N.Y.S.2d 80 [2003]] ). In moving for summary judgment on the ground that the alleged defect was latent, a defendant must establish, prima facie, that the defect was indeed latent—i.e., that it was not visible or apparent and would not have been discoverable upon a reasonable inspection—and also that he or she did not affirmatively create the defect and did not have actual notice of it ( Gray v. City of New York, 87 A.D.3d 679, 680 [928 N.Y.S.2d 759 [2011]] ; Hoover v. International Bus. Machs. Corp., 35 A.D.3d 371, 372 [825 N.Y.S.2d 736 [2006]] )." ( Arevalo v. Abitabile , 148 A.D.3d 658, 659–60, 48 N.Y.S.3d 506 [2d Dept. 2017] ).
The applicable section of the Village Law provides "[s]upply pipes, connecting with mains and used by private owners or occupants, shall be laid and kept in repair at their expense, as in this section or in other sections of this act provided." ( NY Village Law § 11-1112 ).
Plaintiff relies on Village Law § 11-1112, arguing that the issue of liability is one of first impression in this department. Stated differently, there is simply no precedent in this department for holding a property owner liable under Village Law § 11-1112. D & D of Delhi, Inc. v. Village of Delhi , 47 A.D.3d 1117, 849 N.Y.S.2d 716 [3d Dept. 2008], cited by the plaintiff as the only applicable case, is distinguishable. There, a supply pipe was installed on plaintiff's property but not capped or used and a shutoff valve at the main junction was the only thing preventing water from flooding the plaintiff's building. Following a nearby water main rupture years later, a public employee turned the shut off valve to redirect water from the main line and caused substantial damage to the plaintiff's property. The court denied summary judgment in favor of the Village despite the argument that the plaintiff itself caused the damage by failing to cap the supply line in contravention of its duty to maintain the line in good repair. The court stated that "even if it were established that plaintiff violated [ Village Law § 11-1112 ] by failing to cap the line, said finding would only be evidence of negligence and would not bar plaintiff from recovery as a matter of law but, rather, would be relevant with respect to the question of comparative fault." ( D & D of Delhi , 47 A.D.3d at 1118, 849 N.Y.S.2d 716 ). The case does not suggest that the Village Law creates a cause of action sounding in negligence for property damage caused by unknown defects not of one's own creation.
Here, there is no evidence to suggest that the defendant either created or had any indication of the defect in the water supply pipes connecting to his property. ( Con. Ed. Co. of New York. v. Anthony , 2012 WL 9338952 [Sup. Ct. Westchester County 2012] ). Nor is there any persuasive legal support for plaintiff's suggestion that the Village Law imposes upon a property owner the duty to excavate and inspect the buried water supply pipes extending out from his property for the purpose of avoiding potential damage to neighboring property. Contrary to plaintiff's contention that violation of the statute constitutes negligence per se, the Village Law does not impose a specific duty for the avoidance of particular hazard. ( Pierre-Louis v. DeLonghi Am., Inc. , 66 A.D.3d 857, 888 N.Y.S.2d 100 [2d Dept. 2009] ["The general rule is that the violation of a statute that establishes a specific safety duty constitutes negligence per se ...."] ). Rather, it is clear that the Village Law requires the property owner benefitting from water supply pipes to bear the costs of laying and maintaining those pipes as an expense allocating measure. On this record, there is no legal support for plaintiff's theories of liability and, absent precedent, the court will not impose such liability.
For these reasons, the defendant's motion for summary judgment is granted . This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied.