Spindola v Westchester Joint Water Works

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Spindola v Westchester Joint Water Works 2018 NY Slip Op 34170(U) January 14, 2018 Supreme Court, Westchester County Docket Number: 55565/2016 Judge: Terry Jane Ruderman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 01/15/2019 12:55 PM NYSCEF DOC. NO. 21 INDEX NO. 55565/2016 RECEIVED NYSCEF: 01/14/2019 right of right appeals as of To commence statutory time time for appeals commence the statutory to_ serve a copy (CPLR 5513[a]), 5513 [an, you are advised to (CPLR upon all parties. of this of entry, upon notice of this order, with notice of NEW YORK STATE OF NEW THE STATE SUPREME COURT COURT OF THE YORK SUPREME . TER COUNTY OF WESTCHESTER ' WESTCHES COUNTY ________________________________ •.--------. .., .., •._..,- ------------------------------~-----x .. ------- ._ x -------------------------------------- EDITH SPINDOLA and . EDITH B. SPINDOLA M.D., RANCO, M.D., HUGO SPINDOLA-F SPINDOLA-FRANCO, HUGO , ' , ORDER DECISION and ORDER DECISION and Nos. 1 Sequence Nos. Sequence Index 55565/2016 No. 55565/2016 Index No. Plaintiffs, · · · . Plaintiffs, -against-against- WORKS, WESTCHESTER WATER WORKS, JOINT WATER WESTCHEST ER JOINT Defendant. Defendant. _____________ .., .., ----------..,---_------..,--------------------x ------------- ----- -------:------.•· ------------.---- ---------------- --- ---x RUDERMAN,J. RUDERMAN , J.. . . of_defenaant motion of the motion th the The following considered in connection.~i connection, with defendant were considered papers were following papers The ground the ground complaint on the Westchester Joint for summary judgment dismissing the complaint udgment dismissing Works forsummaryj Water Works Joint Water Westchester may not be held that matter oflaw oflaw it itmay held liable:_ liable: that as a matter Papers' Papers· A-- E Notice of Motion, Affirmation,_Exhibits A Motion, Affirmation"Exhibits Notice of 4 I Exhibits Opposition, Exhibits 1 Affirmation Affinnation in Opposition, n· Affirmation Reply n Reply Affirmation , ' Numbered · Numbered 1 2 3 following·a plaintiffs fdllowing'a damage sustained by plaintiffs This action action seeks seeks compensation property damage'sustained compensation for property This . . plaintiffs alle'ge water main roadway in front of of their their home. home.' - Specifically, Specifically, plaintiffs allege that that the.roadway under the rupture under main rupture water Harrison, in Harrison, Avenue in Union Avenue under Union main under water main on January January 26,2015 approximately 10:30 a.m.t a water I 0:30 a.m., 26, 2015 at approximately bas~ment and basement garage and thedriveway, garage New York ruptured and thousands thousands of of gallons water t::ntered entered the,driveway, of water gallons of ruptured and New York the of the structure of the structure and the property and of Union Avenue, ~ersonal property damaging ~ersonal Avenue, damaging home at 13 Union plaintiffs' home of plaintiffs' Wate.rr Joint Westchester Joint Defendant home, and plumbing' systems. · Defenda~t Westchester Wate. plumbing' system.s. elect~ical heating, electrical including heating, home, including . _. . \\.' ' . Plaintiff · water system. operates the water that operates Warks ("WJWW") is the Public Corporation that system. Plaintiff Benefit Corporation Public Benefit Works ("WJWW") 1 [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 01/15/2019 12:55 PM NYSCEF DOC. NO. 21 INDEX NO. 55565/2016 RECEIVED NYSCEF: 01/14/2019 hours took several but that alleges that that WJWW WJWW was was notified notified of of the situation situation immediately, immediately, but that it took several hours alleges was stopped. before flow of of water stopped. water was the flow before the moving for summary summary judgment, defendant characterizes characterizes the the event event as a spontaneous spontaneous judgment, defendant In moving that it engaged rupture not not caused caused by any negligence, negligence, contends contends that engaged in reasonable reasonable maintenance maintenance and and rupture required for notice is required written notice prior written inspection of of the system's system's pipes, and argues argues that, event, prior that, in any event, pipes, and inspection a valid valid claim claim against against it, and and that that no such such notice notice was was received received regarding regarding the the water water main main on Union Union Avenue Harrison. It submits submits the affidavit affidavit of of its business business director, director, David David Birdsall, Birdsall, to establish establish venue in Harrison. A Plant Operator, the lack lack of of prior and the affidavit ofits of its Terrence Terrence O'Neill, O'Neill, its Chief Chief Plant Operator, the affiqavit notice, and written notice, prior written ..., pipes, including establish defendant's defendant's» maintenance maintenance progralll; grid of of pipes, including visual visual inspections, inspections, pro gr~ for its grid to establish audio pitch pitch analysis, analysis, and and regular regular hydrant hydrant flushing, flushing, to establ~sh establish the lack lack of of negligence negligence in its audio maintenance. inspections or maintenance. inspections opposition, plaintiffs submit (1) photographs displaying the the flooding flooding and and work work they they say say' photographs displaying plaintiffs submit 'In opposition, was performed performed by defendant defendant to repair repair their their damaged damaged asphalt asphalt driveway, driveway, (2) minutes minutes from from meetings meetings was the category under the mentioned under of defendant's defendant's Board of Trustees, Trustees, which 2013 mentioned category of of an August 2013 which in August Board of of "operations status status report" report" that that it was was "continu[ing] "continu[ing] to work work with with member member municipalities municipalities to "operations replace older/vulnerable older/vulnerable service service lines, in areas areas that that are planned planned for paving" paving" and and (3) minutes minutes from replace the Trustees' projects, and related projects, paving related meetings during July and the Trustees' approval approval plans for paving reflecting plans 2014 reflecting July 2014 meetings during of $150,000 $150,000 for "service "service line, line, valve valve and and hydrant hydrant replacements replacements related related to Town Town of of Harrison Harrison of Paving Plans." Plans." Paving judgment right to judgment Plaintiffs argue that defendant has not of establishing establishing its right burden of met its burden not met that defendant Plaintiffs argue . - . ........... . . as a matter matter of of law. They They observe observe that that defendant defendant acknowledges acknowledges the the fact fact of of the the water water main main rupture, rupture, and that that defendant's defendant's submissions submissions fail to establish establish the cause cause of of the rupture. rupture. They They point point to the and ,, [* 2] 2 2 of 5 INDEX NO. 55565/2016 FILED: WESTCHESTER COUNTY CLERK 01/15/2019 12:55 PM NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 01/14/2019 recognized the defendant recognized question, defendant incident in question, Board the incident before the that before establish that meeting minutes to establish Board meetingrriinutes liability defendant acknowledged that defendant "older/vulnerable service lines." acknowledged its liability They add that lines." They able service of "older/vulner presence of · presence plaintiffs' asphalt by its voluntary of plaintiffs' asphalt driveway. driveway. replacement of voluntary replacement Analysis Analysis . . . mains ·so water mains its water repairing its "A water company ... ... has duty of of maintaining and repairing so as to maintaining and has the duty water company "A Properties, Inc. v avoid injury injury to abutting abutting property owners,andthe generally" (De Witt Properties, public generally" .and the public property owners avoid duty of New corporations are held held to the the same same duty of care care "Municipal corporations [1978]). "Municipal 417,423 (1978]). NY2d 417,423 New York, 44 NY2d water ~unicipal water operato~f a ~unicipal However, "[t]he private supplier supplier of "[t]heoperato~fa 423-424). However, water" (id. at 423-424). ofwater" ·. as the private Schenectady, ofSchenectady, occurred (Guidarelli system ... is not (Guidarelli v City City of flooding occurred because flooding solely because liable....; . solely not liable system ... . . The 2018]). The Dept 2018]). LEXIS 8951, Div LEXIS _ AD3d 8951, *5 [3d Dept App Div NY App 2018 NY 08995, 2018 NYSlip Op 08995, _, 2018 NYSlip AD3d _,2018 caused by was caused the injury, that the municipality "cannot be held shown that injury; was unless it is shown injury unless liable for injury held liable municipality "cannot New York, 44 Properties v New negligence of the system" system" (De Witt Witt Properties maintenance of installation or maintenance in the installation negligence in reason to has reason NY2d "Thus if if the municipality of a dangerous dangerous conditio°: conditio~ or has notice of has notice municipality has 424). "Thus NY2d at 424). make must make to cause believe that that the pipes have ...... deteriorated deteriorated and are likely likely to cause injury, injury, it must pipes have believe NY2d at 424 Properties, 44 NY2d reasonable efforts to inspect inspect and the defect" 424 defect" (De Witt Properties, repair'the and repair reasonable efforts added]). emphasis added]). [[emphasis the negligence "if liable in negligence also be liable The operator of of a municipal municipal water water system system may may also "if the The operator make failed to make break, it failed main break, water main the water of the notice of evidence receiving notice upon receiving that, upon demonstrates that, evidence demonstrates AD3d Schenectady_,_ AD3d of Schenectady, reasonable (Guidarelli v City City of defect" (Guidarelli the defect" repair the and repair inspect and efforts to inspect reasonable efforts 2018] [internal Dept 2018] _,2018 Slip Op 08995, [internal LEXIS 8951, *6 [3d Dept Div LEXIS8951, App Div NY App 2018 NY 08995, 2018 NY Slip _, 2018 NY judgment entitled to summary quotation sutnIllaryjudgment however, be entitled omitted]). It may, however, citations omitted]). an:d Citations marks and quotation marks reasonable made reasonable that it made proof that unchallenged proof dismissing action where submits to the court unchallenged the court where it submits dismissing an action 3 [* 3] 3 of 5 INDEX NO. 55565/2016 FILED: WESTCHESTER COUNTY CLERK 01/15/2019 12:55 PM NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 01/14/2019 - . . 420 [1st AD2d 420 (259 AD2d Park S. Corp. (259 efforts Grammercy Park Malfatti v 13 Grammercy problem. In Malfattiv the problem. rep~ir the efforts to rep~ir because complaint because dismissing the complaint judgment dismissing Dept 1999]), the summary judgment granted summary were granted defendants were the defendants Dept 1999]), ', . . notification of responded to the notification promptly responded "[t]he evidence evidence establishe[d] establishe[ d] thatthe City employees employees promptly of a thatthe City "[t]he not demonstrated have not ]laintiffs have it[, and] [p water leak and and immediately immediately commenced commenced work stop It[, [p]laintiffs demonstrated work to stop water leak been stopped how actions were deficient or that that the· the leak leak could could have have been stopped any soorier" sooner" (Malfatti, (Malfatti, were deficient how those. actions 421). AD2d at 421). 259 AD2d judgment is to establish The movant's movant' s burden moving for summary summary judgment establish its rightto right to relief relief as burden in moving The New York grad v New 320 [1986]; Wine NY2d 320[1986]; matter of of law Winegradv York Univ. Hosp., 68 NY2d Prospect Hosp., Alvarez v Prospect law (see Alvarez a matter most light most the light iri the viewed iIi must be viewed Med. Cir., Cir., 64 NY2d (1985]). "All "All of evidence must the evidence of the NY2d 851 [1985]). and.all judgment, and,all motion for summary the motion favorable summary judgment, of the opponent of the opponent plaintiff, as the the plaintiff, favorable to the r\ Inc., 96 Ambulette Serv., Inc., reasOJ1abieinferences favor" (Giraldo (Giraldo v Twins Twins Ambulette her favor" resolved in her must be resolved reasm;rable inferences must law, defendant matter of non-negligence as a matter AD3d 903,903 oflaw, defendant prove its non-negligence 2012]). To prove Dept 2012]). 903 [2d Dept AD3d 903, mains. pipes and program for its grid relies affidavit describing describing its maintenance grid of of pipes and mains. maintenance program relies on an affidavit plaintiffs, and However, in the light most favorable to plaintiffs, and given given the existence existence of of some some most favorable the light read irt when read However, when the pipe may be in a deteriorated evidence indicating indicating that some of of the system's system's pipe deteriorated condition, condition, the that some evidence . \ /' I .~. , broken water absence from from th'e tile O'Neill O'Neill affidavit of any indication of the condition condition of of the the broken water main main or or indication of affidavit of absence determination rupture precludes whether its condition condition had had any relation relation to the cause cause of of the pipe's pipe's rupture precludes a determination whether that r matter of. law that establish as a matteroflaw not establish does not of affidavit affidavit does The of law. The matter of non-negligence as a matter of non-negligence . (, mains water mains its water repairing its and repairing maintaining and of maintaining duty of satisfied its duty program satisfied maintenance program defendant's maintenance · defendant's . . .' . . ...... . . . '. / / .. NY2d _ New York, 44 NY2d Properties v New owners (see De Witt Properties property owners abutting property injury to abutting avoid injury so as to avoid at 423)., 423)., Benefit Public Benefit that,WJWW, as a Public The affirmation affirmation of of counsel counsel for defendant defendant asserts asserts thaLWJWW, The 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 01/15/2019 12:55 PM NYSCEF DOC. NO. 21 INDEX NO. 55565/2016 RECEIVED NYSCEF: 01/14/2019 Corporation, is entitled entitled to prior written notice notice of of any dangerous dangerous or defective defective condition. condition. It cites, cites, Corporation, prior written support, Ferris a/Suffolk (174 AD2d AD2d 70 [2d Dept Dept 1992]), 1992]), in which which the the defendant defendant ,_ in support, Ferris v County of Suffolk (174 Town successfully successfully argued argued that that the the condition condition precedent precedent created created by the the prior written notice notice law law of of prior written Town Town Law Law § ~65-a(2) Brookhaven Town Town Code Code § ~ 84-1 required required summary summary judgment dismissing Town 65-a(2) and Brookhaven judgment dismissing complaint against against it. However, However, here, here, defendant defendant offers offers no specific specific code, code, statute statute or other other the complaint authority to support support its bare assertion that that under under these these circumstances circumstances it is e~titled entitled to prior prior written written authority bare assertion notice of of the the claimed claimed condition condition as a condition condition precedent. the absence absence of of any any such such support support for precedent. In the notice claim, defendant defendant has has failed failed to establish establish a right right to summary summary judgment this ground ground as well. well. its claim, judgment on this In view view of of the the foregoing, foregoing, it is hereby hereby · ORDERED that that defendant's defendant's motion motion for summary summary judgment denied, and and it is.further is.further ORDERED judgment. is denied, ORDERED that that all parties parties are directed directed to to appear appear on Monday, Monday, February February 25, 25,2019 9:30 ORDERED 2019 at 9:30 a.m., in the the Preliminary Preliminary Conference Conference Part Part of of the the Westchester Westchester County County Courthouse Courthouse located located at 111 a.m., Martin Luther Luther King, King, Jr., Boulevard, Boulevard, White White Plains, Plains, New York, 10601. 10601. Dr. Martin New York, This constitutes constitutes the the Decision Decision and Order Order of of the the Court. Court. This Dated: White White Plains, Plains, New York Dated: New York January J#-,.2018 #,.2018 January ~~ ~~ HON. TO . .. JANE RUDERMAN, J.S.C. J.S.C. ~ H ~ RUDERMAN, A - 5 [* 5] 5 of 5

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