Opinion
SCR 750/08.
Decided September 25, 2009.
Claimant LucyAnn Sciacca ("claimant' or "Sciacca") seeks judgment in the amount of $5,000 for damages that her home sustained due to a sewer backup that occurred on April 15, 2007. Claimant has submitted photos and receipts documenting the damage. Defendant City of New York ("City" or "defendant") contends that claimant has failed to establish that the City breached any duty owed to claimant or that it was actively negligent and that the negligence caused the flooding and that the flooding was an Act of God caused by torrential rain. Since, as will be set forth below, the City has failed to establish that it exercised any care to inspect and repair its sewer or this particular sewer, the court finds for claimant.
A municipality has a duty to maintain its sewage or drainage system. Tappan Wire Cable, Inc. v. County of Rockland et al. , 7 AD3d 781 , 783 (2d Dept. 2004). As a general rule, a city's duty to keep its drains and sewers clear and free from obstruction is a ministerial or proprietary function involving no immunity, and neglect to perform it will render the municipality responsible to one injured thereby. O'Donnell v. City of Syracuse, 184 NY 1, 10 (1906), citing Dillon on Municipal Corporations, §§ 753, 778; Lloyd v. City of New York, 5 NY 369 (1851).
In a case almost directly on point, Justice Maltese ruled that "a city is required to use reasonable care to inspect and repair the sewers so as to prevent damage to its citizens' property. When it fails to do this and the sewer becomes obstructed the city can be liable for the damages resulting from their acts and omissions". Pickersgill v. City of New York, 168 Misc 2d 768, 770 (Civil Ct., Richmond Cty, 1996), citing to Talcott v. City of New York, 58 App. Div. 514 (1st Dept. 1901). Justice Maltese also looked to Court of Appeals decisions which found that the court should invoke the rule of res ipsa loquitur to find that a plaintiff's proof that her property was damaged by a break in a water main constructed and controlled by the city was "sufficient to establish, prima facie, that the injury was due to negligence of the city". Id. at 771, citing George Foltis, Inc.,v., City of New York, 287 NY 108 (1941). See also, De Witt Prop. V. City of New York, 44 NY2d 417, 426 (1978) (City owner is responsible for damage caused by water main breaks since water mains do not ordinarily break if they are properly installed and maintained and any break in main was probably caused by owner's neglect of its duty).
Justice Maltese also debunked the City's arguments concerning an Act of God, holding that in order to invoke the Act of God defense, the City must establish that "the weather conditions were so extraordinarily harsh as to not be anticipated by reasonable design engineers of the sewers". Thus, where the City's negligently acts or omissions contributed to the injury sustained, the Act of God defense should not be applied. 168 Misc 2d at 769-770. See Greely v. State of NY, 94 App. Div. 605 (3d Dept. 1904).
Justice Maltese concluded that since the back up of the sewer into a home "is not an event which normally occurs" absent some type of negligence on the part of the City, which is charged with operating and maintaining the sewer system and also has the "exclusive control" of said system through the DEP, the doctrine of res ipsa loquitur supports an inference of negligence by the City. Furthermore, the City failed to prove that the claimant in any way caused the sewer back up to occur.
The same reasoning applies in the instant matter. Claimant submitted a letter from James J. Roberts, Deputy Commissioner of the Department of Environmental Protection ("DEP") to the Hon. James Oddo, City Council member, who had written on behalf of a number of his constituents who had experienced a sewer back up at the same address where claimant resides. Mr. Roberts indicated that DEP personnel had inspected the sewer on April 17th, two days after the torrential rains had occurred in the City. He stated that "(a)lthough most areas recovered quickly, the area tributary to the east interceptor of the Oakwood Beach Treatment Plant took several days to recover". Parenthetically, this court heard a trial wherein another Staten Island resident complained of damage to her home due to an overrun sewer on April 15, 2009. Even defendant submitted evidence that at least one other resident of the development where claimant resides complained of an overtaxed sewer on April 15, 2007.
In the instant matter, defendant submitted documents revealing that a number of home owners in close proximity to claimant reported water damage due to an overtaxed sewer system after the vigorous rain storm that hit Staten Island on April 15, 2007. Apart from incorrectly asserting that claimant has the burden of proving that the City was negligent, the City offered no evidence that it performed its ministerial duty to periodically check the sewer in question to ensure that it was not full of dirt and grime which would further tax a sewer system that might overflow in heavy rains. As such, the Court finds for claimant in the amount of $5,000.