Appeal from a judgment of the Supreme Court, Erie County (Christopher J. Burns, J.), entered April 12, 2011.
National Fuel Gas Distrib. Corp. v Erie County Water Auth.
Decided on October 5, 2012
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
The judgment awarded money damages to plaintiff following a non-jury trial.
BENDER & BENDER, LLP, BUFFALO (THOMAS W. BENDER OF COUNSEL), FOR DEFENDANT-APPELLANT. WILDER & LINNEBALL, LLP, BUFFALO (LAURA A. LINNEBALL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages resulting from a break in defendant's water main, which caused water to infiltrate plaintiff's nearby gas line. Following a bifurcated non-jury trial on the issue of liability, Supreme Court concluded that defendant was negligent and that it was liable for plaintiff's damages caused by the leak. We affirm. We note at the outset that the interlocutory judgment from which defendant's appeal was taken was subsumed in the final judgment, from which no appeal was taken. Nevertheless, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the final judgment (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988, 988; see also CPLR 5520 [c]).
Defendant's contention on appeal that its decision whether to replace the subject water main is entitled to governmental immunity is not properly before us. Defendant raised that contention in its pretrial motion for summary judgment dismissing the amended complaint, and defendant's appeal from the order denying that motion was dismissed by this Court based on defendant's failure to perfect the appeal in a timely manner. "[A] prior dismissal for want of prosecution acts as a bar to a subsequent appeal as to all questions that were presented on the earlier appeal" (Bray v Cox, 38 NY2d 350, 353; see Dickerson v Woodbridge Constr. Group, 274 AD2d 945, 945-946), and we decline to review defendant's contention in the exercise of our discretion (see Faricelli v TSS Seedman's, 94 NY2d 772, 774).
Viewing the evidence in the light most favorable to sustain the judgment rendered following this non-jury trial (see Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 AD3d 168, 170), we conclude that there is a fair interpretation of the evidence supporting the court's determination that defendant was negligent (see generally id.). The evidence established that, within the approximately nine years preceding the break at issue, there had been four breaks in the water main in proximity to the subject break. Three of those prior breaks were the same type of break as the one that occurred here. In addition, plaintiff's expert testified that defendant should have replaced at least a portion of the water main after the previous breaks occurred and, contrary to defendant's contention, the court did not err in crediting the testimony of that expert (see generally Cotton v Beames, 74 AD3d 1620, 1621-1622). Thus, the court's determination that defendant had notice of a dangerous condition and that it failed to make reasonable efforts to inspect the water main and repair the dangerous condition is supported by a fair interpretation of the evidence (see generally De Witt Props. v City of New York, 44 NY2d 417, 424-425).
Contrary to the further contention of defendant, the court properly determined based on the evidence before it that defendant's negligence was the proximate cause of plaintiff's damages. Although two holes were discovered in plaintiff's gas line, plaintiff's leakage surveys indicated that the holes did not affect the functioning of the line, and defendant's distribution engineer testified that he was aware of prior incidents in which water from broken water mains had infiltrated nearby gas lines. The evidence thus supports the court's determination that " under all the circumstances the chain of events that followed the negligent ...