Siewert v Greater Atl. Beach Water

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Siewert v Greater Atl. Beach Water 2009 NY Slip Op 33298(U) September 17, 2009 Sup Ct, Nassau County Docket Number: 3507-06 Judge: William R. LaMarca Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 15 Present: HON. WILLIAM R. laMARCA Justice DAVID W. SIEWERT, Plaintiff -againstGREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, INDEX NO: 3507/06 Action #1 Defendant. GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, Third- Party Plaintiff -againstTHE COUNTY OF NASSAU and THE INCORPORATED VIllAGE OF ATLANTIC BEACH, Third- Part Defendants, FRANK LlVECHI, Plaintiff, INDEX NO: 16433/06 -againstTHE ATLANTIC BEACH SEWER DISTRICT and THE GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, Defendants. GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, Third- Part Plaintiff, -againstTHE COUNTY OF NASSAU and THE INCORPORATED VIllAGE OF ATLANTIC BEACH, Third- Part Defendants, Action #2 [* 2] ESTATE OF ANN MARIE H. WALSH and JOHN F. WALSH, Motion Sequence #5 Submitted June 16, 2009 Plaintiffs, INDEX NO: 16770/06 -againstTHE INCORPORATED VIllAGE OF ATLANTIC BEACH SEWER DISTRICT and THE GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, Action #3 Defendants. GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, Third- Part Plaintiff -againstTHE COUNTY OF NASSAU and THE INCORPORATED VIllAGE OF ATLANTIC BEACH, Third- Part Defendants, NEAL FlOMENBAUM , M. D. and MRS. MEREDITH FlOMENBAUM, Plaintiffs, INDEX NO: 288/07 -againstTHE GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, Defendant. GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, Third- Party Plaintiff, -againstTHE COUNTY OF NASSAU and THE INCORPORATED VIllAGE OF ATLANTIC BEACH, Third- Part Defendants, Action #4 [* 3] ANDREW GASPAR and NINA GASPAR, Plaintiffs, INDEX NO: 11514/07 -againstTHE TOWN OF HEMPSTEAD, THE INCORPORATED VIllAGE OF ATLANTIC BEACH, THE ATLANTIC BEACH SEWER DISTRICT, THE GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, Action #5 Defendants. GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, Third- Part Plaintiff, -againstTHE COUNTY OF NASSAU and THE INCORPORATED VIllAGE OF ATLANTIC BEACH, Third- Part Defendants, BETH GARNETT , MILES GARNETT and PAULA GARNETT, Plaintiffs, INDEX NO: 16838/06 -againstTHE DEPARTMENT OF PUBLIC WORKS , THE GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, THE COUNTY OF NASSAU, THE TOWN OF HEMPSTEAD, Defendants. GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT, Third- Part Plaintiff -againstTHE COUNTY OF NASSAU and THE INCORPORATED VIllAGE OF ATLANTIC BEACH, Third- Part Defendants. Action #6 ........................... ............ ........ ..... ........ ............ ........... [* 4] The following papers were read on this motion: TOWN Notice of Cross- Motion.......................................... WRD Affi rmation in Opposition.. GARNETT Affirmation in Opposition.................................... Reply Affirmation............... ............... Defendant in the GASPAR and GARNETT actions , the TOWN OF HEMPSTEAD (hereinafter referred to as the " TOWN" ), moves for an order , pursuant to CPLR 2221 , to reargue the prior order of the Court , dated January 9 , 2009 , that denied its motion for summary judgment dismissing the complaint and all cross- claims against it on the ground that questions offact precluded said relief and , upon reargument, for an order granting said relief. An Affidavit of Service reflects service of the instant motion on counsel for all parties and the pro se litigant in the above captioned actions , on June 17 , 2008 , but only counsel for co- defendant , THE GREATER ATLANTIC BEACH WATER RECLAMATION DISTRICT (hereinafter referred to as " WRD" ), and counsel for plaintiffs , BETH GARNETT , MILES GARNETT and PAULA GARNETT (hereinafter referred to as " GARN ETT") oppose the motion , which is determined as follows: Initially, the Court notes that a Stipulation discontinuing the action against the TOWN , dated January 12 , 2009 , was fied in the above captioned WALSH action. The plaintiffs in the various proceedings commenced the respective actions for alleged damages to their respective properties caused by a sewer backup that occurred in the Atlantic Beach area on October 14 , 2005. Essentially, the motion to reargue asserts that the Court misapprehended issues of law and fact in finding that WRD is a " mere department" of the TOWN , and not a separate , independent entity whose commissioners are authorized to establish and run the sewer district without involvement of the TOWN. [* 5] Moving counsel argues that the sewer system that caused property damage to the plaintiffs ' homes was not owned , operated , maintained or repaired by the TOWN and only WRD has jurisdiction over the sewer system in its district , which was created by a special statute , 1928 N. Y. Laws , Ch. 516 , and not by Town Law ~61 or 198. The prior order of the Court was based primarily on analysis of the Town Law and case law that supported same. Upon reargument , the TOWN has presented clarification of the special 1928 statute that authorized the TOWN to create the WRD , as distinct and different from the Town Law sections that were created four (4) years after the 1928 Crouch v Funk 263 AD 719 , statute. In 30 NYS2d 649 (2 Dept. 1941), Second Department held that the 1932 Town Law statutes that abolished district commissioners and put them under the jurisdiction of town boards only pertained to those districts that were created by the old Town Law , and not districts created by special statutes like the WRD statute. The Court concludes that the 1928 WRD statute created a board of commissioners to run the district and , to this date , residents of WRD still elect their commissioners who have full jurisdiction of the subject sewer district. A motion for leave to reargue , pursuant to CPLR ~2221 (d) " shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. " The purpose of a motion for leave to reargue is not to serve as a vehicle to permit the unsuccessful party to argue once again decided , nor to present arguments not originally presented. Co. Inc. 29 AD3d 737 , Wholesale Offce Machine Amato v Lord Taylor, the very questions previously See , Giovanniello v Carolina 815 NYS2d 248 (2 10 AD3d 374 781 NYS2d 125 (2 Dept. 2004). Dept. 2006); [* 6] Accordingly, after a careful reading of the submissions herein , it is the judgment of the Court that the prior order of the Court warrants modification as the TOWN has no duty with respect to the subject sewer system which is under the jurisdiction of the WRD. It is therefore ORDERED , that the TOWN' s motion for reargument is granted , and upon reargument the Court grants the TOWN' s motion for summary judgment dismissing the GASPAR and GARNETT complaint and all cross- claims against it. All further requested relief not specifically granted is denied. This constitutes the decision and order of the Court. Dated: September 17 , 2009 WILLltM R. LaMARCA , J. TO: David W. Siewert Plaintiff Pro Se in Action #1 60 Vernon Avenue Atlantic Beach , NY 11509 Bisogno & Meyerson , LLP Attorneys for Plaintiff Frank Livechi , Action #2 7018 Fort Hamilton Parkway Brooklyn , NY 11228 Ruffo Tabora Mainello & McKay, PC Attorneys for Plaintiffs Estate of Ann Marie H. Walsh and John F. Walsh , Action #3 and Plaintiffs Andrew Gaspar and Nina Gaspar , Action #5 3000 Marcus Avenue , Suite 1 W1 0 Lake Success , NY11 042 Foley & Lardner LLP Attorneys for Plaintiffs Neal Flomenbaum , MD and Mrs. Meredith Flomenbaum , Action #4 90 Park Avenue , 37 Floor New York , NY 10016 ENTEREQ SEP 2 12009 NASSAU (;OUNTY COUNTY CLERK' S OFFICE [* 7] Miles Garnett Plaintiff Pro Se in Action #6 and Attorney for Plaintiffs Beth Garnett and Paula Garnett in Action #6 66 Wayne Avenue Atlantic Beach , NY 11509 Joseph J. Ra , Esq. Attorneys for Defendant Town of Hempstead in Action #5 and #6 Hempstead Town Hall 1 Washington Street Hempstead , NY 11550 John P. Humphreys , Esq. Attorneys for Defendant The Incorporated Village of Atlantic Beach in Actions #3 and #5 3 Huntington Quadrangle , Suite 102S Melville , NY 11747 D. Sweeney & Associates , PLLC Attorneys for Defendant Greater Atlantic Beach Water Reclamation District in Action #1 , #3 , #4 , #5 and #6 941 North Broadway, 2 Floor White Plains , NY 10603 Lorna B. Goodman , Esq. Nassau County Attorney Attorney for Defendant Nassau County in Action #6 One West Street Mineola , NY 11501 siewert-greateratlantic , (gaspar&gamett- townofhempstead), #5/reargue

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