Opinion
2014-01306, Index No. 598/12.
04-01-2015
Michael L. BRANDENBURG, et al., respondents, v. COUNTY OF ROCKLAND SEWER DISTRICT # 1, State of New York, defendant, Town of Clarkstown, State of New York, appellant.
MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Christopher J. Walsh of counsel), for appellant. Michael L. Brandenburg and Wendy K. Brandenburg, New City, N.Y., respondents pro se.
MacCartney, MacCartney, Kerrigan & MacCartney, Nyack, N.Y. (Christopher J. Walsh of counsel), for appellant.
Michael L. Brandenburg and Wendy K. Brandenburg, New City, N.Y., respondents pro se.
PETER B. SKELOS, J.P., RUTH C. BALKIN, L. PRISCILLA HALL and JOSEPH J. MALTESE, JJ.
Opinion In an action to recover damages for injury to real property, the defendant Town of Clarkstown, State of New York, appeals from an order of the Supreme Court, Rockland County (Berliner, J.), dated November 14, 2013, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
A municipality is immune from liability “arising out of claims that it negligently designed [a] sewerage system” (Tappan Wire & Cable, Inc. v. County of Rockland, 7 A.D.3d 781, 782, 777 N.Y.S.2d 517 ; see Fireman's Fund Ins. Co. v. County of Nassau, 66 A.D.3d 823, 824, 887 N.Y.S.2d 242 ). However, a municipality “is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature” (Tappan Wire & Cable, Inc. v. County of Rockland, 7 A.D.3d at 782, 777 N.Y.S.2d 517 ; see De Witt Props. v. New York, 44 N.Y.2d 417, 423–424, 406 N.Y.S.2d 16, 377 N.E.2d 461 ). In order for a municipality to demonstrate its prima facie entitlement to judgment as a matter of law in sewer backup cases, the municipality must show that it had no “ ‘notice of a dangerous condition,’ ” and that “it regularly inspected and maintained the subject sewer line” (Fireman's Fund Ins. Co. v. County of Nassau, 66 A.D.3d at 824, 887 N.Y.S.2d 242, quoting De Witt Props. v. City of New York, 44 N.Y.2d at 424, 406 N.Y.S.2d 16, 377 N.E.2d 461 ; see Gugel v. County of Suffolk, 120 A.D.3d 1189, 1190, 992 N.Y.S.2d 543 ; Azizi v. Village of Croton–on–Hudson, 79 A.D.3d 953, 955, 914 N.Y.S.2d 232 ).
Here, the defendant Town of Clarkstown, State of New York, failed to establish, prima facie, that it regularly inspected and maintained the subject sewer lines (see Gugel v. County of Suffolk, 120 A.D.3d at 1190, 992 N.Y.S.2d 543 ). The evidence submitted by the Town in support of its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it demonstrated that the subject sewer lines had not been inspected more recently than approximately 19 months prior to the date of the sewage backup into the plaintiffs' residence (see Holmes v. Incorporated Vil. of Piermont, 54 A.D.3d 809, 811, 863 N.Y.S.2d 774 ). Under these circumstances, the Town failed to meet its prima facie burden of establishing its entitlement to judgment as a matter of law. Accordingly, the Supreme Court properly denied the Town's motion, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
We decline the plaintiffs' invitation to search the record and award them summary judgment on the issue of liability, as there are triable issues of fact as to whether the Town negligently maintained or inspected the subject sewer lines.