Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nachamie v. County of Nassau

Supreme Court of New York, Second Department

February 1, 2017

Andrew Nachamie, et al., respondents,
v.
County of Nassau, et al., appellants, et al., defendant. (Action No. 1) David Hauser, et al., respondents,
v.
Galvin Brothers Construction Company, et al., appellants. (Action No. 2) Index Nos. 1537/12, 13744/12

          Lawrence, Worden, Rainis & Bard, P.C., Melville, NY (Leslie McHugh of counsel), for County of Nassau, appellant in Action Nos. 1 and 2.

          Conway & Goren, Melville, NY (Frank Matozzo and Christopher M. Lochner of counsel), for Galvin Bros., Inc., Madhue Contractors, Inc., and Galvin Bros., Inc./Madhue Contractors, Inc., a joint venture, appellants in Action No. 1, and Galvin Brothers Construction Company, appellant in Action No. 2.

          L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, NY (Daniel McFaul, Jr., and Douglas L. Pintauro of counsel), for DeBruin Engineering, Inc., appellant in Action No. 1.

          Blyer & Kurland, P.C., Jericho, NY (Steven R. Blyer and Lauren B. Kurland of counsel), for respondents in Action No. 1.

          Morrison & Wagner, LLP, New York, NY (Eric H. Morrison of counsel), for respondents in Action No. 2.

          REINALDO E. RIVERA, J.P. CHERYL E. CHAMBERS, SHERI S. ROMAN, VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

         Appeals from two orders of the Supreme Court, Nassau County (Michele M. Woodard, J.), dated May 9, 2014, and October 15, 2014, respectively, in two related actions. The order dated October 15, 2014, insofar as appealed from (1) by five of the defendants in Action No. 1, upon reargument, adhered to the determination in the order dated May 9, 2014, denying their prior motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, and (2) by the defendants in Action No. 2, granted the motion of the plaintiffs in that action for leave to reargue those defendants' prior motions for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and, upon reargument, denied those motions.

         ORDERED that the appeals from the order dated May 9, 2014, are dismissed, as that order was superseded by the order dated October 15, 2014, made upon reargument; and it is further, ORDERED that the order dated October 15, 2014, is modified, on the law, by deleting the provision thereof, upon reargument, adhering to the determination in the order dated May 9, 2014, denying that branch of the motion of the defendant DeBruin Engineering, Inc., which was for summary judgment dismissing the cross claims for common-law indemnification asserted against it in Action No. 1, and substituting therefor a provision, upon reargument, vacating that determination, and thereupon granting that branch of the motion; as so modified, the order dated October 15, 2014, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

         In these two related actions, the plaintiffs seek damages for flooding that damaged their homes on August 14, 2011. The plaintiffs are the owners of real property located near or adjacent to Merokee Pond, which is owned by the defendant County of Nassau. On the date of the incident, heavy rain fell, and the pond overflowed its banks, causing flooding damage to the plaintiffs' homes and properties.

         At the time of the incident, the County was in the midst of performing an environmental improvement project at Merokee Pond, which involved extensive dredging of the pond. The County hired the defendants Galvin Bros., Inc. (hereinafter Galvin Bros.), Madhue Contractors, Inc., and Galvin Bros., Inc./Madhue Contractors, Inc., a joint venture (hereinafter collectively the Galvin-Madhue defendants) to perform this work. The County engaged the services of the defendant DeBruin Engineering, Inc. (hereinafter DeBruin), to prepare plans and specifications for the project and to perform other work, including inspections of the ongoing work.

         In February 2012, the plaintiffs David Hauser and Robin Hauser commenced an action against the County and Galvin Bros., incorrectly sued as Galvin Brothers Construction Company (hereinafter the Hauser action). In November 2012, six plaintiffs, including Andrew Nachamie, commenced an action against the County, DeBruin, the Galvin-Madhue defendants, and the Town of Hempstead (hereinafter the Nachamie action). The County and Galvin Bros. separately moved in the Hauser action for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them in that action, and in an order dated April 3, 2014, the Supreme Court granted those motions. The County, DeBruin, and the Galvin-Madhue defendants separately moved in the Nachamie action for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them in that action, and in an order dated May 9, 2014, the court, inter alia, denied, as premature, those separate motions. The County, DeBruin, and the Galvin-Madhue defendants then moved in the Nachamie action for leave to reargue the denial of their motions for summary judgment in that action, and the plaintiffs in the Hauser action moved for leave to reargue the granting of the motions of the County and Galvin Bros. for summary judgment in that action. In an order dated October 15, 2014, the court, upon joining the two actions for discovery and trial, granted reargument, adhered to its determination denying the motions for summary judgment in the Nachamie action, and vacated its prior order in the Hauser action and denied the motions of the County and Galvin Bros. for summary judgment in that action. The County, DeBruin, Galvin Bros., and the Galvin-Madhue defendants appeal.

         Upon reargument, the Supreme Court correctly adhered to its determination denying the County's motion for summary judgment in the Nachamie action, and correctly vacated its prior order in the Hauser action and denied the County's motion for summary judgment in that action. The County failed to show that it was entitled to summary judgment based on its prior written notice statute (see Nassau County Administrative Code § 12-4.0[e]), as the plaintiffs alleged in their respective pleadings that it affirmatively created the alleged defect that caused their damages, and it failed to establish, prima facie, that it did not do so (see McManus v Klein, 136 A.D.3d 700, 701; Carlucci v Village of Scarsdale, 104 A.D.3d 797, 798; Braver v Village of Cedarhurst, 94 A.D.3d 933, 934; Hill v Fence Man, Inc., 78 A.D.3d 1002, 1004).

         The County contends that it was entitled to judgment as a matter of law dismissing the Hauser action insofar as asserted against it because the Hauser plaintiffs failed to timely and properly serve it with a notice of claim (see General Municipal Law § 50-e[1][a]; Bartolotta v County of Wyoming, 231 A.D.2d 899; see also Gonzalez v Board of Educ. of City of Yonkers, 298 A.D.2d 358, 359). However, in opposition to the County's prima facie showing on that issue, the Hauser plaintiffs submitted evidence sufficient to demonstrate the existence of an issue of fact.

         Contrary to the County's contention, it failed to establish its prima facie entitlement to judgment as a matter of law by demonstrating that it was entitled to governmental immunity in these actions. The plaintiffs in both actions allege that during the rain storm a "turbidity curtain, " used to prevent silt and debris in the pond from flowing downstream during the dredging operation, became detached from its anchor point and came to rest in an area where it was blocking a grate or drainage culvert. Although a governmental entity may be entitled to immunity from liability arising out of claims that it negligently designed a sewerage or storm drainage system (see Carbonaro v Town of N. Hempstead, 97 A.D.3d 624, 624-625; Tappan Wire & Cable, Inc. v City of Rockland, 7 A.D.3d 781, 782), the immunity does not extend to claims that it negligently maintained the system (see Weiss v Fote, 7 N.Y.2d 579, 585; Urquhart v Ogdensburg, 91 NY 67, 71; Carbonaro v Town of N. Hempstead, 97 A.D.3d at 625; Tappan Wire & Cable, Inc. v City of Rockland, 7 A.D.3d at 783). Here, even assuming the subject project fell within the ambit of a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.