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

604
CA 12-02364
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


JOHN J. MIDDLETON AND JOAN M. MIDDLETON,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

TOWN OF SALINA, DEFENDANT,
AND COUNTY OF ONONDAGA, DEFENDANT-RESPONDENT.


UAW LEGAL SERVICES PLAN, WOODBRIDGE, NEW JERSEY (ERIC N. AGLOW OF
COUNSEL), AND UAW-CHRYSLER LEGAL SERVICES PLAN, SYRACUSE, FOR
PLAINTIFFS-APPELLANTS.

GORDON J. CUFFY, COUNTY ATTORNEY, SYRACUSE (KAREN A. BLESKOSKI OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Onondaga County
(Donald A. Greenwood, J.), entered March 21, 2012. The order, among
other things, granted the motion of defendant County of Onondaga for
summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this action to recover damages arising from a
backup of sewage in their house, plaintiffs appeal from an order that,
inter alia, granted the motion of the County of Onondaga (defendant)
for summary judgment dismissing the complaint against it. Contrary to
plaintiffs’ contention, Supreme Court properly granted the motion.

      In the complaint, as amplified by the bill of particulars and
the notice of claim, plaintiffs allege, among other things, that
defendant is liable under a negligence theory. In an action against a
municipality such as defendant, it is “the fundamental obligation of a
plaintiff pursuing a negligence cause of action to prove that the
putative defendant owed a duty of care. Under the public duty rule,
although a municipality owes a general duty to the public at large to
[perform certain governmental functions], this does not create a duty
of care running to a specific individual sufficient to support a
negligence claim, unless the facts demonstrate that a special duty was
created. This is an offshoot of the general proposition that ‘[t]o
sustain liability against a municipality, the duty breached must be
more than that owed the public generally’ ” (Valdez v City of New
York, 18 NY3d 69, 75). “The second principle relevant here relates
not to an element of plaintiffs’ negligence claim but to a defense
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                                                         CA 12-02364

that [is] potentially available to [defendant]—the governmental
function immunity defense . . . [T]he common-law doctrine of
governmental immunity continues to shield public entities from
liability for discretionary actions taken during the performance of
governmental functions . . . [pursuant to which] ‘[a] public
employee’s discretionary acts—meaning conduct involving the exercise
of reasoned judgment—may not result in the municipality’s liability
even when the conduct is negligent’ ” (id. at 75-76).

     Thus, we begin our analysis by examining the “special duty issue
in this case in recognition of the fact that, if plaintiffs cannot
overcome the threshold burden of demonstrating that defendant owed the
requisite duty of care, there will be no occasion to address whether
defendant can avoid liability by relying on the governmental function
immunity defense” (id. at 80). Contrary to plaintiffs’ contention,
they failed to establish that defendant owes them a special duty of
care apart from any duty owed to the public in general.

     In order for plaintiffs to establish that defendant owed a
special duty to them, they were required to establish that defendant
“ ‘voluntarily assume[d] a duty that generate[d] justifiable reliance
by the person who benefit[ted] from the duty’ ” (McLean v City of New
York, 12 NY3d 194, 199). That burden has four elements, i.e., “ ‘(1)
an assumption by the municipality, through promises or actions, of an
affirmative duty to act on behalf of the party who was injured; (2)
knowledge on the part of the municipality’s agents that inaction could
lead to harm; (3) some form of direct contact between the
municipality’s agents and the injured party; and (4) that party’s
justifiable reliance on the municipality’s affirmative undertaking’ ”
(id. at 201, quoting Cuffy v City of New York, 69 NY2d 255, 260).
Here, defendant met its initial burden on the motion by submitting
evidence establishing that plaintiffs’ alleged reliance upon
representations allegedly made by defendant’s agents was not
justifiable (see Estate of Scheuer v City of New York, 10 AD3d 272,
273-274, lv denied 6 NY3d 708; see generally Dabriel, Inc. v First
Paradise Theaters Corp., 99 AD3d 517, 521-522), and plaintiffs failed
to raise a triable issue of fact (see generally Zuckerman v City of
New York, 49 NY2d 557, 562).

     In any event, even assuming, arguendo, that plaintiffs raised a
triable issue of fact whether defendant owed a special duty to them,
we conclude that the court properly determined that the “second
principle” set forth in Valdez, i.e., the governmental function
immunity defense (id. at 75), applied. Defendant established that it
was engaged in a governmental function when it engaged in the
allegedly negligent conduct, i.e., failing to install a check valve or
similar anti-backflow device on plaintiffs’ sewer line to prevent
sewage from flowing backwards out of the sewer line and into
plaintiffs’ house. “ ‘Whether an action of a governmental employee or
official is cloaked with any governmental immunity requires an
analysis of the functions and duties of the actor’s particular
position and whether they inherently entail the exercise of some
discretion and judgment. If these functions and duties are
essentially clerical or routine, no immunity will attach’ ” (id. at
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                                                        CA 12-02364

79).

     “Beyond the role the individual employee plays in the
organization, the availability of governmental function immunity also
turns on ‘whether the conduct giving rise to the claim is related to
an exercise of that discretion’ . . . The defense precludes liability
for a ‘mere error of judgment’ . . . but this immunity is not
available unless the municipality establishes that the action taken
actually resulted from discretionary decision-making—i.e., ‘the
exercise of reasoned judgment which could typically produce different
acceptable results’ ” (id. at 79-80). Thus, it has long been the rule
that “[t]he duties of the municipal authorities in . . . determining
when and where sewers 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” (Johnston v District of Columbia, 118
US 19, 20-21; see generally McCarthy v City of Syracuse, 46 NY 194,
196). Plaintiffs’ allegation that defendant was negligent in failing
to correct the problem by installing an anti-backflow device concerns
a discretionary action taken in the course of a governmental function
because it “relate[s] only to the design of the system, for which
[defendant] may not bear liability” (Carbonaro v Town of N. Hempstead,
97 AD3d 624, 625; cf. Johnston v Town of Jerusalem, 2 AD3d 1403, 1403-
1404; Biernacki v Village of Ravena, 245 AD2d 656, 657). Defendant
therefore met its initial burden on the motion with respect to the
“second principle” of the test set forth in Valdez, and plaintiffs
failed to raise a triable issue of fact (see generally Zuckerman, 49
NY2d at 562).




Entered:   July 5, 2013                        Frances E. Cafarell
                                               Clerk of the Court
