Timothy J. Filkins v Village of Elbridge

Filkins v Village of Elbridge 2005 NY Slip Op 09952 [24 AD3d 1293] December 22, 2005 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Timothy J. Filkins, Appellant, v Village of Elbridge, Respondent.

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Appeal from an order of the Supreme Court, Onondaga County (Thomas J. Murphy, J.), entered December 1, 2004. The order granted defendant's motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.

Memorandum: Plaintiff commenced this action alleging that defendant's negligence in approving a defective subdivision drainage system and in failing to remedy the defect in that system caused flooding on his property. Supreme Court erred in granting defendant's motion for summary judgment dismissing the complaint. Defendant failed to establish in support of its motion that the flooding was not caused by the allegedly defective drainage system (see Balnys v Town of New Baltimore, 160 AD2d 1136, 1136-1137 [1990]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and thus defendant failed to establish its entitlement to judgment as a matter of law, regardless of the alleged insufficiency of plaintiff's opposing papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present—Scudder, J.P., Kehoe, Martoche, Smith and Pine, JJ.