Wohl v City of New York

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[*1] Wohl v City of New York 2014 NY Slip Op 51618(U) Decided on October 22, 2014 Supreme Court, Richmond County Aliotta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 22, 2014
Supreme Court, Richmond County

Todd Wohl and Kena Wohl, Plaintiffs,

against

The City of New York and DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendants.



103095/2012
Thomas P. Aliotta, J.

Upon the foregoing papers, defendants' motion for summary judgment dismissing the complaint is granted.

This action was commenced by plaintiff/homeowners to recover for water damage to their premises and personal property located at 647 College Avenue, Staten Island, New York. In the complaint, it is alleged as a first cause of action that on August 14, 2011 during a "severe rainstorm", water flooded plaintiffs' 2011 Acura TL which was parked in front of their residence, causing damages beyond repair. As a second cause of action, plaintiffs allege that on August 28, 2011, during Hurricane Irene, the public sewer backed-up, causing six feet of sewer water to flood the basement of their [*2]residence. Plaintiffs claim, inter alia, that defendants were negligent in failing to (1) inspect, clean and/or remove debris from the catch basins and sewer lines in the vicinity of their residence in order to allow storm water to drain rather than backing up, (2) flush debris from sewer lines in order to mitigate backups and flooding, and (3) inspect and clean the large sewer lines that are utilized to prevent flooding.

In moving to dismiss the complaint, it is alleged that liability cannot be imposed against the City and its Department of Environmental Protection (hereinafter, the "City"), since there is no evidence that the municipality and/or its agencies had actual or constructive notice of a particular condition that caused the flooding at plaintiffs' residence, and/or that these defendants acted affirmatively to cause or create a defective condition in the sewer lines. To the contrary, the City maintains that the existing sewer systems on Staten Island did not have the capacity to handle the extreme storm events that occurred on August 14, 2011 and during Hurricane Irene.

In support, movants submit certain official weather data reports (i.e., the August 2011 Local Climatological Data from the NOAA, National Climatic Data Center at Liberty International Airport in New Jersey) along with the affidavit of James Garin, the Director of Engineering for the Department of Environmental Protection (DEP), who analyzed both storm events [FN1] , and found that the recorded amounts of rainfall from each were of "historical proportions and...[are] considered more than a 5-year storm event". More particularly, the witness explained that DEP's sewer records for Staten Island indicate that the sewer systems were designed and built according to 5-year storm drainage criteria, i.e., designed for a rainfall intensity of 1.75 inches per hour, which statistically qualifies as a 5-year storm event. Moreover, there are many locations on Staten Island where storm sewers simply do not exist. In combination, Mr. Garin concluded that the existing sewer systems did not have the capacity to handle a greater than 5-year storm event, and became overwhelmed by the extreme rainfalls that occurred on August 14 and August 27-28.

The City also relies upon the affidavit of Bruce Robinson, a record searcher for the New York City DEP, who attests that he performed a search for complaints, maintenance records, repair records and inspection records of complaints relative to the subject location on College Avenue for the two-year period prior to August 30, 2011. His search revealed DEP records relating to "clogged catch basins" at the following locations: 631, 647 and 651 College Avenue.[FN2] With regard to 631 and 647 College Avenue, Mr. Robinson found three "Service Request Detail Reports" (dated July 23, [*3]2010, August 3, 2010 [FN3] and January 18, 2011), as well as one completed "Storm Inlet Work Order" pertaining to the catch basins at or near 647 College Avenue. The pertinent work order indicates that the catch basins were inspected and cleaned on or about August 3, 2010, thereby resolving the July 23, 2010 and the August 3, 2010 complaints. The City further points to the deposition testimony of a DEP supervisor, George Maniatakos, who responded to the January 18, 2011 complaint and personally inspected the catch basins in the vicinity of plaintiffs' residence (i.e., near 631 College Avenue) on January 20, 2011 when enough snow had melted to permit the inspector to view inside the catch basins. According to the witness, he found them to be clean and free of debris.

With regard to the catch basins located near 651 College Avenue, DEP's record searcher (the same Bruce Robinson) found one "Service Request Detail Report" pertaining to a complaint made on August 23, 2011 concerning five catch basins "clogged with debris" near 651 College Avenue. His search also revealed three completed "Storm Inlet Work Orders" relating to that complaint, which indicated that the three catch basins near 651 College Avenue were cleaned on August 26, 2011. This is in accord with the affidavit of Michael Nichols, a construction laborer for DEP's Staten Island Sewer Maintenance Division, who attests that he was part of the crew that responded to the August 23, 2011 complaint. According to Mr. Nichols, he personally inspected the catch basins in the area and cleaned three of them. He further attests that "[a]fter cleaning, the catch basins were checked to insure that they were free from obstruction and that the storm sewer was functioning properly in that water was flowing freely".

Finally, the City points out that plaintiff Kena Wohl's deposition testimony constitutes further evidence of the maintenance efforts undertaken by DEP immediately prior to Hurricane Irene. More specifically, Ms. Wohl testified that due to the impending storm, she called DEP either the day before or the morning of the hurricane, "to make sure the catch basins were cleaned". She further testified that a crew of workers appeared immediately and cleaned the catch basins (1) in front of her residence, (2) the one located across the street and (3) another "two doors down". She testified that she observed DEP's crew using a "crane that lifts up the lids" and a "clamp that goes and picks stuff out".

Based upon the foregoing evidence, the City argues that it had no actual or constructive notice of any defect in the sewer system prior to either of the storms in August of 2011. While acknowledging that complaints concerning clogged catch basins at the subject location were received, the municipal defendants contend that DEP adequately remediated the conditions complained of by conducting timely inspections and cleaning those catch basins where necessary. Accordingly, no cause of action for negligent maintenance can be proven. In any event, it is argued that plaintiffs cannot establish that even if debris existed in the subject catch basins, it was a proximate cause [*4]of the flooding at or near their residence. Lastly, the City maintains that the record is devoid of any evidence that the City created any defective condition in the public sewer system.

In opposing defendants' motion to dismiss, plaintiffs maintain that a triable issue of fact exists as to whether or not the municipal defendants properly inspected and maintained the catch basins at the location and times in question. In this regard, plaintiffs point to the deposition testimony of DEP's supervisor, George Maniatakos, who was asked about the procedure for cleaning a catch basin. According to Mr. Maniatakos, "if the crew feels that after cleaning, the connection might need to be flushed, they bring that recommendation to me and then I set it up for a flusher crew to clean it, to flush out the line". In view of this testimony, plaintiffs argue that while the various Storm Inlet Work Orders "generally" state that the catch basins at issue were cleaned, these reports fail to indicate whether or not flushing the lines was necessary. In any event, it is alleged that the various DEP Service Requests generated from public complaints constitutes actual and constructive knowledge of an "ongoing issue" with the catch basins at the subject location becoming clogged. Finally, plaintiffs contend that under the doctrine of res ipsa loquitur, an inference of negligence on the part of the municipal defendants can be inferred in this case.

It is well established that "[a] municipality is immune from liability arising out of claims that it negligently designed the sewerage system or storm drainage system" (Carbonaro v Town of N. Hempstead, 97 AD3d 624, 624-625, quoting Tappan Wire & Cable, Inc. v County of Rockland, 7 AD3d 781, 782; see Fireman's Fund Ins. Co. v County of Nassau, 66 AD3d 823, 824). In addition, prior to the Court of Appeals decision in McClean v City of New York (12 NY3d 194 [2009]), it was generally understood that a municipality "is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial [rather than discretionary] in nature" (see e.g., Tappan Wire & Cable, Inc. v County of Rockland, 7 AD3d at 782; accord Bilotta v Town of Harrison, 106 AD3d 848). As a result, all that was required for a plaintiff to recover under a theory of negligent inspection or maintenance of the storm drainage system, was to demonstrate that defendants "had notice of a dangerous condition or had reason to believe that... [the defect was] likely to cause injury, that [defendants] failed to make reasonable efforts to inspect and repair the defect, and that such failure caused the plaintiffs' injuries" (Bilotta v Town of Harrison, 106 AD3d 848, 849 [internal citations omitted]).

However, in the McClean case the Court of Appeals corrected this misapprehension by expressly holding that "[g]overnmental action, if discretionary, may not be a basis for liability, while ministerial acts may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (id. at 203; see Dinardo v City of New York, 13 NY3d 872). No such showing has been made in the instant case. Accordingly, the City's motion for summary judgment dismissing the complaint must be granted.

In any event, the result would be the same even under the prior state of the law, [*5]as the unrebutted testimony of the City's witness, George Maniatakos, who personally inspected the catch basins in the immediate vicinity of plaintiffs' residence on January 20, 2011 (i.e., seven months prior to the August rainstorms), and found them to be clean. In addition, the affidavit of DEP's Michael Nichols, states that he was part of the crew that cleaned the three catch basins in the immediate vicinity of plaintiffs' residence on the day before Hurricane Irene struck, and his affidavit is corroborated by the deposition testimony of one of the plaintiffs, Kena Wohl. In any event, upon taking judicial notice of the climatological reports issued by the National Climatic Data Center in New Jersey, it has been proved to the satisfaction of this Court that the City was subjected to inordinate rainfall on August 14 and August 27-28, 2011. Moreover, the affidavit of DEP's Director of Engineering concerning the negative impact of the two storms on the borough's sewer system is also uncontroverted . Clearly, therefore, the uncontradicted evidence adduced by the City demonstrates that the sewer system on Staten Island was never designed to accomodate the volume of rain which fell during the designated periods of time. Accordingly, the City has met its initial burden of demonstrating, prima facie, that the sole proximate cause of the flooding that occurred at plaintiffs' residence was the volume of precipitation rather than DEP's inspection and maintenance failures (see Carbonaro v Town of North Hempstead, 97 AD3d 624, 625).

In opposition, plaintiffs have failed to raise a triable issue of fact on the issue of whether the municipal defendants "either affirmatively breached a [special] duty owed [to them specifically] or...[were] actively negligent and the negligence caused the [backups and] flooding" (Biernacki v Village of Ravena, 245 AD2d 656, 657; see Azizi v Village of Croton-on-Hudson, 79 AD3d 953, 955). In addition to the absence of any proof of a special duty, plaintiffs have offered no evidence, expert or otherwise, concerning, e.g., industry standards, in support of their speculative contention that DEP's failure to "flush" the sewer lines constituted active negligence (id. at 955). The mere fact that flooding occurred is an insufficient basis on which to predicate a triable issue of neglect on the part of the municipal defendants.

Accordingly, it is

ORDERED, that the motion for summary judgment of defendants The City of New York and its Department of Environmental Protection is granted; and it is further

ORDERED, that the complaint is hereby dismissed; and it is further

ORDERED, that the Clerk enter judgment accordingly.

E N T E R,



Dated:October 22, 2014__/s/_______________________

HON. THOMAS P. ALIOTTA



J.S.C. Footnotes

Footnote 1:Mr. Garin attests, inter alia, that the rainfall precipitation data from the weather station at Newark Liberty International Airport, the closest geographic point to Staten Island, recorded 6.4 inches of rain as a result of the August 14th storm, and 8.92 inches of rain generated by Hurricane Irene.

Footnote 2:Plaintiffs claim to reside at 647 College Avenue.

Footnote 3:The public complaint dated August 3, 2010 was found to be duplicative of the July 23, 2010 complaint.