Opinion
No. 101849/13.
01-20-2015
Svetlana MIRONOVA, Plaintiff, v. The CITY OF NEW YORK, Office of the Comptroller, Defendants.
Opinion
The following papers numbered 1 to 3 were fully submitted on the 20th day of November, 2014:
| Pages | Numbered |
|---|---|
| Notice of Motion for Summary Judgment by Defendants the City of New York and Office of the Comptroller, with Supporting Papers and Exhibits (dated July 17, 2014) | 1 |
| Affirmation in Opposition by Pro Se Plaintiff, with Supporting Papers and Exhibits (dated September 29, 2014) | 2 |
| Affirmation in Reply and Further Support of the City's Motion to Dismiss (dated October 20, 2014) | 3 |
DECISION AND ORDER
Upon the foregoing papers, the motion to dismiss by the City of New York and the Office of the Comptroller (collectively, hereinafter the “City”) is granted, and the complaint is dismissed.
To the extent relevant, plaintiff claims property damage to her premises located at 639 Hunter Avenue, Staten Island, New York due to flooding allegedly caused by a public sewer and drain back-up during a rainstorm which occurred on August 14, 2011. In effect, the pro se plaintiff alleges that the damage was caused by the City's negligence. According to her summons and complaint, she was unable to get through to “311” until August 15, 2011, at which point the “Department of Environmental Protection came to check the sewer ... [and] confirmed that [the] flood happened due to the city sewer back up as it was overwhelmed with water” (see Complaint, para 6).
The plaintiff further alleges that the City sewer line has not worked properly since 2005, and that she has called “311” many times to report this problem (id. at 4). However, after the last sewer back-up on December 8, 2011, the “City finally repaired the sewer after the road broke but damages were already done by previous sewer back ups” (id. ).
In support of its motion for summary judgment, the City submits an affidavit by James Garin, the director of engineering of its Department of Environmental Protection–Bureau of Water and Sewer Operations (hereinafter “DEP”), who stated that the existing “storm sewers were designed and built [to] a 5–year drainage plan design criteria ... [and] were designed for a rainfall intensity of 1.75 inches per hour, which is a five-year storm event” (see Affidavit of James Garin, PE, para 6). Moreover, he notes that these sewers “were designed and built as per drainage plans ... approved by the appropriate authorities at the time built” (id. ). Garin further states that “DEP field personnel observed that the southern portion of Staten Island was affected severely by the torrential rains of August 14, 2011[, i.e., ] ... 6.40 inches ... [as] recorded at nearby Newark Airport” (id. at para 7). “Therefore, the existing sewer systems ... did not have the capacity to handle [the] greater than 5 year storm event that occurred on August 14, 2011, which temporarily overpowered the existing sewer systems and caused flooding” (id. at para 8). In conclusion, Garin opined that after reviewing “the records relating to the claim locations and the available weather data, ... the August 14, 2011 and the August 27–28, 2011–Hurricane Irene rainfalls overwhelmed the existing sewer systems [on] Staten Island that were designed and built according to a 5–year drainage design criteria” (id. at para 15).
Also submitted is an affidavit by Bruce Robinson, a principal administrative associate at the DEP, who stated that “[w]ith respect to sewer catch basins, DEP maintains a sewer catch basin cleaning program under which all catch basins in the City are [regularly] inspected. If any catch basin is found to need cleaning or servicing during these inspections, a report is prepared and a DEP maintenance crew performs the cleaning. [In addition,] DEP maintenance [crews] ... inspect and clean catch basins in response to individual complaints received from the public” (see Affidavit of Bruce Robinson, para 2). According to the affiant, a search for records including those for maintenance, repair and inspection at the subject location for the period August 14, 2009 through August 15, 2011, revealed five service request detail reports (id. at 3), all of which involved complaints of flooding due to the August 14, 2011 rainstorm. The complaints were documented as “resolved” when upon inspection, the seepage basins were found either to be properly working or “overtaxed” (see the City's Exhibit “H”).
It is well settled that a municipality is immune from liability arising out of claims that it negligently designed its sewerage system (see Gugel v. County of Suffolk, 120 AD3d 1189, 1190 [2nd Dept 2014] ; Moore v. City of Yonkers, 54 AD3d 397 [2nd Dept 2008] ; Tappan Wire & Cable, Inc. v. County of Rockland, 7 AD3d 781 [2nd Dept 2004] ). However, a municipality is not entitled to governmental immunity arising out of claims that it negligently maintained its sewerage system, as these claims challenge conduct which is ministerial in nature (see Gugel v. County of Suffolk, 120 AD3d at 1190 ; Moore v. City of Yonkers, 54 AD3d at 398 ; Tappan Wire & Cable, Inc. v. County of Rockland, 7 AD3d at 782 ). To recover under the theories of negligent inspection and maintenance, a plaintiff must demonstrate that (1) the municipality had notice of the alleged dangerous condition or reason to believe, e.g., that pipes had shifted or deteriorated and were likely to cause injury, (2) the municipality failed to make reasonable efforts to inspect and repair the purported defect, and (3) such failure was the cause of plaintiff's damages (see Holmes v. Incorporated Vil of Piermont, 54 AD3d 809, 811 [2nd Dept 2008] ; but see McLean v. City of New York, 12 NY3d 194, 203 [2009] [“ “governmental action [s], if ... ministerial ... may be [a basis for liability], but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general”] ).
Here, the City has met its initial burden by making a prima facie showing of its right to judgment as a matter of law through the submission of, inter alia, the affidavit of the director of engineering of the DEP's Bureau of Water and Sewer Operations, who indicated that the rainstorm of August 14, 2011 exceeded the capacity of the storm sewers on Staten Island (see Moore v. City of Yonkers, 54 AD3d at 398 ; Hongach v. City of New York, 8 AD3d 622 [2nd Dept 2004] ; cf. Gugel v. County of Suffolk, 120 AD3d at 1190 ; Holmes, Sr. v. Incorporated Vil of Piermont, 54 AD3d at 812 ). As a result, it became incumbent upon plaintiff to lay bare her proof by the submission of evidentiary facts sufficient to raise a triable issue (see Hongach v. City of New York, 8 AD3d at 622–623 ).
At bar, plaintiff submitted no expert's affidavit or other proof tending to show that the City's installation and maintenance of the sewage system on Staten Island was in any way negligent, or that it caused the flooding of her property (see Hongach v. City of New York, 8 AD3d at 622 ; cf. Hendricks v. Town of Fishkill, 12 AD3d 641 [2nd Dept 2004] ; Tappan Wire & Cable, Inc. v. County of Rockland, 7 AD3d at 783 ; Zeltmann v. Town of Islip, 265 A.D.2d 407 [2nd Dept 1999] ). Accordingly, her opposing papers claiming that the City was negligent in the maintenance of its sewer system, and that such negligence was a proximate cause of the flooding which damaged her property is based upon pure speculation (see Hongach v.. City of New York, 8 AD3d at 622 ; cf. Hendricks v. Town of Fishkill, 12 AD3d at 641 ; Tappan Wire & Cable, Inc. v. County of Rockland, 7 AD3d at 783 ). “Evidence of flooding caused by a sewer system ... is [alone] insufficient to maintain an action for negligence against a municipality” (Linden Towers Coop No. 4 v. City of New York, 272 A.D.2d 587, 587 [2nd Dept 2000] ; see Hongach v. City of New York, 8 AD3d at 622 ).
In the alternative, the City moves to dismiss the complaint pursuant to CPLR 3216 for plaintiff's failure to prosecute. The City served a 90–Day Notice on plaintiff on April 7, 2014 (see the City's Exhibit “D”), and it is undisputed that plaintiff has so far failed to file a note of issue or seek leave of the court for an extension of the time to do so.
CPLR 3216(a) provides that the court may dismiss a party's pleading where the party unreasonably fails to serve and file a note of issue. However, certain conditions precedent to dismissal must be met, including that one year has elapsed since joinder of issue, and that the court or the party seeking such relief has served a written demand that the note of issue be served and filed within 90 days (CPLR 3216[b] ; see Huger v. Cushman & Wakefield, Inc., 58 AD3d 682 [2nd Dept 2009] ). In the event that the party upon whom the demand is served fails to comply within the prescribed time, the court may dismiss that party's pleading unless that party can show a justifiable excuse for the delay and a good and meritorious cause of action (CPLR 3216[e] ; see Huger v. Cushman & Wakefield, Inc., 58 AD3d at 684 ). Here, the statutory conditions precedent have been satisfied, and plaintiff has failed to adduce proof of either a justifiable excuse or a meritorious cause of action, thereby rendering her complaint subject to dismissal on multiple grounds.
Accordingly, it is
ORDERED that defendant's motion for summary judgment is granted; and it is further
ORDERED that the complaint is dismissed; and it is further
ORDERED that the Clerk enter judgment and mark his records accordingly.