Brown v City of Albany

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Brown v City of Albany 2019 NY Slip Op 34714(U) December 16, 2019 Supreme Court, Albany County Docket Number: Index No. 19-905894 Judge: L. Michael Mackey 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. INDEX NO. 905894-19 FILED: ALBANY COUNTY CLERK 12/18/2019 03:47 PM NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/18/2019 STATE OF NE\V YORK SUPREME COURT COUNTY OF ALBANY STEPHANIE BROWN, Plaintiff, DECISION AND ORDER -againstTHECITYOFALBANY, Defendant. (Supreme Court, Albany County, MotionTerm, December 16, 2019) Index:No~ .19-905894 (RJI No. 01-19-133224) (Justice L Michael Mackey; Presiding) APPEARANCES: McGlinchey Stafford, PLLC Attorneys Jor,Plaintiff (Marc l 'Lifset~ :Esq., of,Counsel) 194 Washington Avenue Suite 600 Albany?. NewYoik 12210 William G. Kelly, Jr; Corporation Counsel City of Albany Attorneys for Defendant/Third-Party Plaintiff the City of Albany (Robert Magee, Assistant Corporation Counsel) .24 Eagle Street City Hall, Room 106 Albany, Ne'YYork12207 MACKEY,J.: Plaintiff Stephanie Brown ("plaintiff') commenced this negligence action to recoyer for property damage sustained on July 5~ 2018 when a sewerage system owned and , maintained by defendant the City of Albany (the ''City") backed up and flooded the firsffloor of plaintiffs residence at 190 Marion Avenue with raw sewage. The action was commenced . Filed in Albany County Clerk's Office [* 1] 12/18/2019 03:47:02 PM 1 of 5 Index# 905894-19 Clerk: KT FILED: ALBANY COUNTY CLERK 12/18/2019 03:47 PM NYSCEF DOC. NO. 17 INDEX NO. 905894-19 RECEIVED NYSCEF: 12/18/2019 by the filing of a summons and complaint on September 6, 2019. An amended complaint was filed on October 28, 2019. A GeneraIMunicipal Law§ 50-h examination of plaintiff was taken by the City on November 26, 2019. Issue has notbeenjoined. The City now moves pursuant to CPLR §§ 321 l(a)(l) and (7) to dismiss the amended complaint. Ona pre-answer motion pursuant to CPLR§ 3211(a)(7) to dismiss for failure to state a cause of action, the Court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see, Leon v Martinez, 84 NY2d 83, 87 [1994]; see, also, Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314,326 [2002]; Graziano v County of Albany, 3 NY3d 475 [2004]). "Whether the plaintiff will ultimately be successful in establishing those allegations is not part of the calculus." Landon v Kroll Lab. Specialists. Inc.,22 NY3d l, 6 [2013] [internal quotation marks and citations omitted]; accord.Vermont Mut. Ins. Co. v McCabe & Mack. LLP, 105 AD3d 837, 839 [3 rd Dept. 2013]; see, Stone Ridge Country Props. Corp. v Mohonk Oil Co .• Inc., 84 AD3d 1556, 1557 [3 rd Dept. 20 i 1]). A motion pursuant to CPLR § 3211 (a)(l) to dismiss based on documentary evidencemaybeappropriatelygranted"onlywherethedocumentaryevidenceutterlyrefutes plaintiffs factual allegations, conclusively establishing a defense as a matter of Jaw" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326). A .municipality is .immune from liability ''arising out'of claims that it negligently designed [a] sewerage system" (Tappan Wire & Cable Inc. v County of Rockland, 7 AD3d 781,782 [2nd Dept. 2004]; see,Fireman's Fund Ins. Co. v County of Nassau, 66 AD3d 823 · [2 nd Dept. 2009]). However, a municipality is not immune from'liability arising out of claims 2 [* 2] 2 of 5 FILED: ALBANY COUNTY CLERK 12/18/2019 03:47 PM NYSCEF DOC. NO. 17 INDEX NO. 905894-19 RECEIVED NYSCEF: 12/18/2019 that it negligently maintained the system (Brandenburg v County of Rockland Sewer Dist. # 1, State ofN.Y., 127 AD3d 681 [2 nd Dept. 2015]; see, DeWittProps. v City of New York, 44 NY2d 417, 423-424 [1978]; Wattv County of Albany. 140 AD3d 1260, 1261 [3 rd Dept. 2016]; 461 Broadway, LLC vVill. of Monticello, 144 AD3d 1464 [3 rd Dept. 2016]; Zarlin v Town of Clarkstown, 102 AD3d 865, 866 [2 nd Dept. 2013];.Carbonaro v Town ofN. Hempstead, 97 AD3d 624~ 625 [2 nd Dept.2012]; Moore v City ofYonkers, 54 AD3d 397 [2 nd Dept. 2008]; Tappan Wire & Cable> Inc. v County of Rockland, 7.AD3d aL782; Biernacki v Village of Ravena, 245 AD2d 656,657 [3 rd Dept. 1997]; see, also, McCarthy v City of Syracuse, 46 NY 194, 19fr-97 [1871]; Seifertv City of Brooklyn, 101 NY 136 [1889]; Pet Prods. v City of Yonkers, 290 AD2d 546, 547 [2 nd Dept 2002]; Biernacki v Village of Ravena, 245 .AD2d 656 [3 rd Dept 1997]; Sgarlata v City of Schenectady. 77 Misc.2d 481, 486-487 [Sup. Ct. Schenectady County 1974]). Reading plaintiffs amended complaint broadly as pied, plaintiff alleges, inter alia, that the City owned, maintained and/or controlled certain stormwater collection and sewage disposal systems in the vicinity of Marion Avenue (where plaintiff lives); that on July 5, 2018,. a significant rainfall occurred; that the City failed to properly inspect, maintain and/or repair the subject sewerage system; and that, as a result, the.sewerage system backed up and raw sewage overflowed into the first floor of plaintiffs residence and damaged her property: Plaintiff also alleges that the City had prior written notice of the defective sysfem. Here, to the extent plaintiffs seeks recovery of damages for the City's alleged negligent design of the drainage or sewerage systems in,around or near plaintiffs residence, such claim must be dismissed as a matter of law. Caselaw makes clear that this claim is not 3 [* 3] 3 of 5 INDEX NO. 905894-19 FILED: ALBANY COUNTY CLERK 12/18/2019 03:47 PM NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 12/18/2019 cognizable as against the City due to municipal immunity; However~ the Court determines· that plaintiffs claim. for negligent maintenance or repair of the drainage or sewer systems near plaintiffs property survives dismissal. The. Court rejects the City's argument thatplaintiffs testimony at her General Municipal Law§ 50~h hearing "utterly refutes" plaintiff's factual allegations or conclusively establishes a . defense as a matter of law. Therefore, that branch of the City's motion seeking dismissal of plaintiffs claims for negligentmaintenance or repair of sewer or drainage systems in her vicinity is denied. This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the plaintiff. All other papers are delivered to the County Clerk The signing of this Decision and Order shall not constitute entry or filing under CPLR2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry. SO ORDERED. ENTER. Dated: ~ Y o r k December 16, 2019 Supreme Court Justice 12/18/2019 Papers Considered: (1) (2) (3) Notice of Motion dated September 30, 2019; Affirmation of Robert Magee., Esq." dated September 30., 2019,with exhibits annexed; Memorandum of Law dated September 30, 2019; 4 [* 4] 4 of 5 FILED: ALBANY COUNTY CLERK 12/18/2019 03:47 PM NYSCEF DOC. NO. 17 (4) (5) (6) (7) (8) (9) (10) RECEIVED NYSCEF: 12/18/2019 Amended Verified Complaint dated October 28, 2019, with exhibit annexed; Affirmation of Robert Magee, Esq., dated September 30, 2019, with exhibits annexed; Affirmation of Marc J. Lifset, Esq? dated Octciber.28,•2019; Memorandum of Law dated October 29, 2019; Affirmation of Robert Magee,'Esq., dat~d November 13, 2019, with exhibits annexed; Affirmation of Marc LLifset, Esq., dated December 9, 2019, with exhibits annexed; Memorandum ofLawdated December.9,2019, 5. [* 5] INDEX NO. 905894-19 5 of 5

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