        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

371
CA 13-01245
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


WILLIAM J. GILBERTI, JR., PLAINTIFF-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

TOWN OF SPAFFORD, DEFENDANT-APPELLANT.
--------------------------------------------------
TOWN OF SPAFFORD, THIRD-PARTY PLAINTIFF-APPELLANT,

                    V

CLIFFORD R. WHITE, DOING BUSINESS AS GROUND
EFFECTS, ET AL., THIRD-PARTY DEFENDANTS,
SPECTRA ENVIRONMENTAL GROUP, INC.,
THIRD-PARTY DEFENDANT-RESPONDENT.


LYNCH LAW OFFICE, SYRACUSE, CONGDON FLAHERTY O’CALLAGHAN REID DONLON
TRAVIS & FISHLINGER, UNIONDALE (GREGORY A. CASCINO OF COUNSEL), FOR
DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLANT.

GILBERTI STINZIANO HEINTZ & SMITH, P.C., SYRACUSE (GARY T. KELDER OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (DANIEL R. RYAN OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Donald A. Greenwood, J.), dated December 21, 2012. The order, among
other things, denied in part the motion of defendant-third-party
plaintiff for summary judgment dismissing the complaint and granted
the motion of third-party defendant Spectra Environmental Group, Inc.,
for summary judgment dismissing the third-party complaint against it.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion of third-party
defendant Spectra Environmental Group, Inc. and reinstating the third-
party complaint against it and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff commenced this action alleging, inter
alia, that defendant-third-party plaintiff (hereafter, Town) was
negligent in the design, installation, construction and maintenance of
the storm water system in the vicinity of plaintiff’s house. The Town
subsequently commenced a third-party action against, inter alia,
third-party defendant Spectra Environmental Group, Inc. (Spectra),
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                                                         CA 13-01245

alleging that Spectra and the other third-party defendants were
retained by plaintiff to perform work at plaintiff’s house, including
work with respect to the design, construction or maintenance of
plaintiff’s private drainage system. The Town subsequently moved for,
inter alia, summary judgment dismissing the complaint, and Spectra
moved for summary judgment dismissing the third-party complaint
against it. Supreme Court granted the Town’s motion in part and, as
relevant on appeal, denied the Town’s motion with respect to the
trespass and nuisance causes of action, as well as the negligence
causes of action to the extent that they asserted that the Town
negligently maintained its storm water system. The court also granted
Spectra’s motion.

     Addressing first the third-party action, we agree with the Town
that the court erred in granting Spectra’s motion, and we therefore
modify the order accordingly. In support of its motion, Spectra
contended that it had no role in designing the water drainage system
for plaintiff’s house and thus bears no responsibility for the flood.
The record, however, establishes that Spectra participated in the road
design process, that Spectra’s plans were at least partially
incorporated into the road’s final design, and that the flood occurred
shortly after the completion of the subject project. Consequently,
the court erred in granting Spectra’s motion for summary judgment
dismissing the third-party complaint against it (see generally
Syracuse Univ. v Games 2002, LLC, 71 AD3d 1531, 1531; Matter of
Kreinheder v Withiam-Leitch, 66 AD3d 1485, 1485).

     Contrary to the Town’s contention in the main action, the court
properly refused to dismiss plaintiff’s negligent maintenance causes
of action in their entirety on the ground that the Town’s alleged
negligence arises from a governmental function. The law relevant to
municipal immunity from negligence causes of action is set forth in,
inter alia, Applewhite v Accuhealth, Inc. (21 NY3d 420), Valdez v City
of New York (18 NY3d 69) and McLean v City of New York (12 NY3d 194).
If the municipality acted in a proprietary role, i.e., “when its
activities essentially substitute for or supplement traditionally
private enterprises” (Applewhite, 21 NY3d at 425 [internal quotation
marks omitted]), ordinary rules of negligence apply. If, however, the
municipality acted in a governmental capacity, i.e., “when its acts
are undertaken for the protection and safety of the public pursuant to
general police powers” (id. at 425 [internal quotation marks
omitted]), the court must undertake a separate inquiry to determine
whether the municipality owes a special duty to the injured party (see
McClean, 12 NY3d at 199). In the event that the plaintiff fails to
prove such a duty, the municipality is insulated from liability. Even
in the event that the plaintiff proves such a duty, however, the
municipality will not be liable if it proves that the alleged
negligent act or omission involved the exercise of discretionary
authority (see Valdez, 18 NY3d at 75-76).

     With respect to municipal sewer malfunctions, it is well settled
that a municipality’s design of a sewer system constitutes a
governmental function (see Urquhart v City of Ogdensburg, 91 NY 67,
71; Azizi v Village of Croton-on-Hudson, 79 AD3d 953, 954; Biernacki v
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                                                         CA 13-01245

Village of Ravena, 245 AD2d 656, 657; Vanguard Tours v Town of
Yorktown, 83 AD2d 866, 866), while a municipality’s “operation,
maintenance and repair of th[at] sewer system is a proprietary
function, and thus the Town’s liability in that respect is not
contingent upon the existence of a special relationship” (Johnston v
Town of Jerusalem, 2 AD3d 1403, 1403; see Pet Prods. v City of
Yonkers, 290 AD2d 546, 547; Zeltmann v Town of Islip, 265 AD2d 407,
408; see generally Clinger v New York City Tr. Auth., 85 NY2d 957,
959; Searles v Town of Horicon, 116 AD2d 93, 95). The issue before us
is whether the Town’s alleged negligence stems from a proprietary
function, i.e., the maintenance of its storm water drainage systems,
or a governmental function, i.e., the design of that system, and
“[t]he relevant inquiry in determining whether a governmental agency
is acting within a governmental or proprietary capacity is to examine
the specific act or omission out of which the injury is claimed to
have arisen and the capacity in which that act or failure to act
occurred” (Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428,
447, rearg denied 18 NY3d 898, cert denied sub nom. Ruiz v Port Auth.
of N.Y. and N.J., ___ US ___, 133 S Ct 133 [internal quotation marks
omitted]).

      In support of his negligence causes of action, plaintiff asserts
five allegedly negligent acts or omissions: (1) the Town’s allegedly
excessive deepening of the drainage ditches during cleanings in the
summer and fall of 2007; (2) the Town’s failure to install check dams
to mitigate the excessively deep ditches; (3) the Town’s alleged
failure to cover one of the pipes in its storm water system (Pipe A)
with sufficient amounts of “fill” during its construction and
installation; (4) the Town’s alleged failure to remove clogged debris
from two other pipes in its storm water system (Pipes B and C) prior
to the storm at issue; and (5) the Town’s alleged failure to repair
the crushed ends of Pipes B and C prior to that storm. We conclude
that plaintiff alleges design negligence in items (2) and (3) (see
e.g. Carbonaro v Town of N. Hempstead, 97 AD3d 624, 625), and that,
because plaintiff does not even assert the existence of a special
duty, the Town cannot be liable for any failure to install check dams
or to provide a sufficient cover for Pipe A (see Middleton v Town of
Salina, 108 AD3d 1052, 1053-1054; Carbonaro, 97 AD3d at 625). We
conclude that plaintiff alleges negligent maintenance in items (1),
(4) and (5) (see e.g. McCarthy v City of Syracuse, 46 NY 194, 196-197;
Tappan Wire & Cable, Inc. v County of Rockland, 7 AD3d 781, 782-783,
lv dismissed 3 NY3d 738; Pet Prods., 290 AD2d at 547), and that such
allegations are actionable inasmuch as they relate to the performance
of a proprietary function (see generally Applewhite, 21 NY3d at 425-
426).

     The Town’s further contention that it is entitled to summary
judgment dismissing the negligent maintenance claims because the Town
was not in fact negligent is not properly before us inasmuch as the
Town did not seek summary judgment on that ground before the motion
court. “A motion for summary judgment ‘on one claim or defense does
not provide a basis for searching the record and granting summary
judgment on an unrelated claim or defense’ ” (Baseball Off. of Commr.
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                                                         CA 13-01245

v Marsh & McLennan, 295 AD2d 73, 82, quoting Sadkin v Raskin &
Rappoport, 271 AD2d 272, 273; see Dischiavi v Calli, 68 AD3d 1691,
1693). “Thus, the court’s consideration of those [claims] was
improper” (Sunrise Nursing Home, Inc. v Ferris, 111 AD3d 1441, 1441;
see Baseball Off. of Commr., 295 AD2d at 82), and we may not consider
those claims here (see Conti v Town of Constantia, 96 AD3d 1461,
1462).

     We also reject the Town’s contention that the court erred in
denying that part of its motion seeking summary judgment dismissing
the claim that the Town negligently maintained its storm water system
because the Town lacked prior written or constructive notice of
problems with its storm water system. As the movant, the Town had the
burden of establishing that it lacked constructive notice of the
allegedly dangerous condition (see id. at 1461-1462), and it failed to
meet that burden here. The deposition testimony of the Town’s
maintenance workers submitted in support of the Town’s motion does not
address the frequency of the inspection of the subject pipes or the
method of inspection. Moreover, those workers did not deny that the
pipes were clogged before the flood, that the ditches were
unnecessarily deep, or that the pipes were not properly aligned with
those ditches. Indeed, the maintenance records offered in support of
the motion do not establish when the pipes were last inspected. We
thus conclude that the Town “failed to make a prima facie showing that
[it] lacked constructive notice of the allegedly dangerous condition
described by the plaintiff” (Griffith v JK Chopra Holding, LLC, 111
AD3d 666, 666; see Adam v Town of Oneonta, 217 AD2d 894, 895).




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
