Opinion
Index No. 19-905894 RJI No. 01-19-133224
12-16-2019
STEPHANIE BROWN, Plaintiff, v. THE CITY OF ALBANY, Defendant.
McGlinchey Stafford, PLLC Attorneys for,Plaintiff (Marc J. 'Lifset Esq., of, Counsel) William G. Kelly, Jr; Corporation Counsel City of Albany Attorneys for Defendant/Third-Party Plaintiff the City of Albany (Robert Magee, Assistant Corporation Counsel)
Unpublished Opinion
(Supreme Court, Albany County, Motion Term, December 16, 2019)
McGlinchey Stafford, PLLC Attorneys for,Plaintiff (Marc J. 'Lifset Esq., of, Counsel)
William G. Kelly, Jr; Corporation Counsel City of Albany Attorneys for Defendant/Third-Party Plaintiff the City of Albany (Robert Magee, Assistant Corporation Counsel)
DECISION AND ORDER
L. MICHAEL MACKEY SUPREME COURT JUSTICE
Plaintiff Stephanie Brown ("plaintiff') commenced this negligence action to recover for property damage sustained on July 5, 2018 when a sewerage system owned and maintained by defendant the City of Albany (the "City") backed up and flooded the first floor of plaintiff s residence at 190 Marion Avenue with raw sewage. The action was commenced by the filing of a summons and complaint on September 6, 2019. An amended complaint was filed on October 28, 2019. A General Municipal Law § 50-h examination of plaintiff was taken by the City on November 26, 2019. Issue has not been joined. The City now moves pursuant to CPLR §§ 3211(a)(1) and (7) to dismiss the amended complaint.
On a pre-answer motion pursuant to CPLR § 3211(a)(7) to dismiss for failure to state a cause of action, the Court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see. Leon v Martinez. 84 N.Y.2d 83, 87 [1994]; see, also, Goshen v Mutual Life Ins. Co. of N.Y.. 98 N.Y.2d 314, 326 [2002]; Graziano v County of Albany. 3 N.Y.3d 475 [2004]). "Whether the plaintiff will ultimately be successful in establishing those allegations is not part of the calculus." Landon v Rroll Lab. Specialists. Inc.. 22 N.Y.3d 1,6 [2013] [internal quotation marks and citations omitted]; accord Vermont Mut. Ins. Co. v McCabe & Mack. LLP. 105 A.D.3d 837, 839 [3rd Dept. 2013]; see, Stone Ridge Country Props. Corp. v Mohonk Oil Co.. Inc.. 84 A.D.3d 1556,1557 [3rd Dept. 2011 ]). A motion pursuant to CPLR § 3211(a)(1) to dismiss based on documentary evidence maybe appropriately granted "only where the documentary evidence utterly refutes plaintiffs factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y.. 98 N.Y.2d at 326).
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 [2nd Dept. 2004]; see. Fireman's Fund Ins. Co. v County of Nassau. 66 A.D.3d 823 r [2nd Dept. 2009]). However, a municipality is not immune from liability arising out of claims that it negligently maintained the system (Brandenburg v County of Rockland Sewer Dist. # 1. State of N.Y.. 127 A.D.3d 681 [2ndDept. 2015]; see, De Witt Props, v City of New York. 44 N.Y.2d 417,423-424 [1978]: Watt v County of Albany. 140 A.D.3d 1260,1261 [3rdDept. 20161:461 Broadway. LLC vVill. of Monticello. 144 A.D.3d 1464 [3rd Dept. 2016]; ZarHn v Town of Clarkstown. 102 A.D.3d 865, 866 [2nd Dept. 2013]: Carbonaro v Town of N. Hempstead. 97 A.D.3d 624.625 [2nd Dept. 2012]: Moore v City of Yonkers. 54 A.D.3d 397 [2ndDept. 2008]; Tappan Wire & Cable. Inc. v County of Rockland. 7 A.D.3d at 782: Biernacki v Village of Ravena. 245 A.D.2d 656, 657 [3rd Dept. 1997]; see, also, McCarthy v City of Syracuse. 46 NY 194. 196-97 [1871]: Seifert v City of Brooklyn. 101 NY 136 [1889]; Pet Prods, v City of Yonkers. 290 A.D.2d 546, 547 [2nd Dept. 2002]: Biernacki v Village of Ravena. 245. A.D.2d 656 [3rd Dept. 1997]; Sgarlata v City of Schenectady. 77 Misc.2d 481, 486-487 [Sup. Ct. Schenectady County 1974]).
Reading plaintiff s amended complaint broadly as pled, plaintiff alleges, inter alia, that the City owned, maintained and/or controlled certain stormwater collection and sewage disposal systems in the vicinity of Marion Avenue (where plaintiff lives); that on July 5, 2018, a significant rainfall occurred; that the City failed to properly inspect, maintain and/or repair the subject sewerage system; and that, as a result, the sewerage system backed up and raw sewage overflowed into the first floor of plaintiff s residence and damaged her property. Plaintiff also alleges that the City had prior written notice of the defective system.
Here, to the extent plaintiff s seeks recovery of damages for the City's alleged negligent design of the drainage or sewerage systems in, around or near plaintiffs residence, such claim must be dismissed as amatter of law. Caselaw makes clear that this claim is not cognizable as against the City due to municipal immunity.
However, the Court determines that plaintiffs claim for negligent maintenance or repair of the drainage or sewer systems near plaintiffs property survives dismissal. The Court rejects the City's argument that plaintiff s testimony at her General Municipal Law § 50-h hearing "utterly refutes" plaintiffs factual allegations or conclusively establishes a defense as a matter of law. Therefore, that branch of the City's motion seeking dismissal of plaintiff s claims for negligent maintenance or repair of sewer or drainage systems in her vicinity is denied.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the plaintiff. AH other papers are delivered to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
SO ORDERED.
Papers Considered: 12/18/2019
(1) Notice of Motion dated September 30, 2019;
(2) Affirmation of Robert Magee, Esq., dated September 30, 2019, with exhibits annexed;
(3) Memorandum of Law dated September 30, 2019;
(4) Amended Verified Complaint dated October 28,20.19, with exhibit annexed;
(5) Affirmation of Robert Magee, Esq., dated September 30, 2019, with exhibits annexed;
(6) Affirmation of Marc J. Lifset, Esq.? dated October 28, 2019;
(7) Memorandum of Law dated October 29,2019;
(8) Affirmation of Robert Magee, Esq., dated November 13,2019, with exhibits annexed;
(9) Affirmation of Marc J. Lifset, Esq., dated December 9, 2019, with exhibits annexed;
(10) Memorandum of Law dated December 9, 2019.