                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: June 2, 2016                       521650
________________________________

RICHARD A. WATT et al.,
                    Respondents,
      v                                      MEMORANDUM AND ORDER

COUNTY OF ALBANY,
                    Appellant.
________________________________


Calendar Date:   March 22, 2016

Before:    Lahtinen, J.P., McCarthy, Garry, Rose and Mulvey, JJ.

                              __________


      Daniel Lynch, County Attorney, Albany (Kevin Cannizzaro of
counsel), for appellant.

      Dwyer & Dwyer, Loudonville (Colin D. Dwyer of counsel), for
respondents.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (McNamara, J.),
entered October 23, 2014 in Albany County, which denied
defendant's motion for summary judgment.

      In the summer of 2011, torrential rainfall caused by a
hurricane overwhelmed a roadside drainage ditch owned and
maintained by defendant. The overflow crossed over the surface
of the crowned pavement of the roadway to the opposite side and
ran down a slope toward plaintiffs' home where it flooded the
basement and damaged their real and personal property.
Plaintiffs later commenced this action, alleging that the
flooding and resulting property damage were proximately caused by
defendant's negligent failure to provide proper drainage and to
properly maintain the existing drainage ditch. Depositions were
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held and defendant thereafter moved for summary judgment
dismissing the complaint. Supreme Court denied the motion, and
we now reverse.

      Plaintiffs do not claim that defendant constructed the
drainage system so as to direct water onto their property. Nor
do their pleadings allege that the roadway itself was designed so
as to create the problem. Instead, plaintiffs allege that the
drainage is simply inadequate and that certain improvements to
the design of the system – including the implementation of a
costly plan to blast through bedrock to deepen the drainage ditch
– are necessary. However, to the extent that plaintiffs'
negligence claim alleges that defendant failed to adequately
design or redesign the drainage system, it cannot be maintained.
Decisions "'determining when and where [drainage ditches] shall
be built, of what size and at what level, are of a quasi judicial
nature, involving the exercise of deliberate judgment and large
discretion . . . [which] is not subject to revision by a court or
jury in a private action for not sufficiently draining a
particular lot of land'" (Biernacki v Village of Ravena, 245 AD2d
656, 657 [1997], quoting Johnston v District of Columbia, 118 US
19, 20-21 [1886]; see Bilotta v Town of Harrison, 106 AD3d 848,
848 [2013]).

      The act of maintaining a drainage system, on the other
hand, is ministerial in nature and, thus, governmental immunity
will not insulate defendant from plaintiffs' alternative claim
that it did so negligently (see Carbonaro v Town of N. Hempstead,
97 AD3d 624, 625 [2012]; Papadopoulos v Town of N. Hempstead, 84
AD3d 768, 768 [2011]; Biernacki v Village of Ravena, 245 AD2d at
657). "Nonetheless, [defendant] is not an insurer of its
[drainage] system and cannot be held liable for injury unless it
is shown that the injury was caused by active negligence in the
maintenance of the system" (Azizi v Village of Croton-on-Hudson,
79 AD3d 953, 954 [2010]; see De Witt Props. v City of New York,
44 NY2d 417, 424 [1978]; Holy Temple First Church of God in
Christ v City of Hudson, 17 AD3d 947, 947-948 [2005]).

      In support of its motion, defendant satisfied its initial
burden of establishing that it made reasonable efforts to inspect
and maintain its drainage system, primarily through the
                              -3-                521650

submission of deposition testimony from plaintiff Richard A. Watt
and Robert Tanner, defendant's assistant director of highway
operations. Watt testified that, between 1999 and the 2011
weather event that gave rise to this action, overflow from the
drainage ditch in question caused his property to flood on three
separate occasions. Watt admitted that, when he contacted
defendant's highway department about these events, defendant's
regular response was to send a crew to clean out and attempt to
widen the ditch. Indeed, Watt explicitly stated that the highway
department was of "good assistance" and "seemed to be doing
everything [it] could possibly do" to address the drainage issue.
Tanner corroborated Watt's testimony regarding defendant's
responsiveness to plaintiffs' concerns, and he testified that the
flooding resulted from a combination of torrential rainfall and
the low-lying topography of plaintiffs' property. He further
stated that, in 2010, defendant had taken the additional step of
regrading a portion of plaintiffs' property in an effort to
ameliorate the problem.

      In response, plaintiffs offered no other evidence and
failed to raise a triable issue of fact as to whether defendant
"ma[de] reasonable efforts to inspect and repair the defect" (De
Witt Props. v City of New York, 44 NY2d at 424; see Carbonaro v
Town of N. Hempstead, 97 AD3d at 625; Briga v Town of Binghamton,
8 AD3d 874, 875 [2004]; Chi-Ming Tang v Village of Geneseo, 303
AD2d 987, 987 [2003]). Thus, we find that reversal of Supreme
Court's order is required, and defendant is entitled to summary
judgment dismissing the complaint.

     Lahtinen, J.P., McCarthy, Garry and Mulvey, JJ., concur.
                              -4-                  521650

      ORDERED that the order is reversed, on the law, without
costs, motion granted, summary judgment awarded to defendant and
complaint dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
