Tyrone P. Hendricks v Town of Fishkill

Hendricks v Town of Fishkill 2004 NY Slip Op 08836 [12 AD3d 641] November 29, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Tyrone P. Hendricks et al., Appellants,
v
Town of Fishkill, Respondent.

—[*1]

In an action, inter alia, to recover for damage to property, the plaintiffs appeal from an order of the Supreme Court, Dutchess County (Brands, J.), dated December 8, 2003, which granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

In response to the prima facie showing by the defendant, Town of Fishkill, of its entitlement to judgment as a matter of law, the plaintiffs submitted evidence, including the affidavit of a professional engineer, which raised questions of fact as to whether or not the Town, inter alia, properly maintained the sewer system serving the plaintiffs' homes. Accordingly, the Supreme Court should have denied the Town's motion for summary judgment (see Zeltmann v Town of Islip, 265 AD2d 407 [1999]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Broidy v City of New York, 301 AD2d 551 [2003]). Florio, J.P., H. Miller, S. Miller and Spolzino, JJ., concur.