Nachamie v. County of NassauNachamie v. County of Nassau
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 defеndants’ 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Ordered that the appeals from the order dated May 9, 2014, are dismissed, as that order was superseded by the order dated October 15, 2014, made upon reargument; and it is further,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 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 (herеinafter 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 оf 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 actiоn 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 thеm 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
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 notiсe statute (see
The County contends that it was entitled to judgment as a matter of law dismissing the Hauser action insofar as аsserted against it because the Hauser plaintiffs failed to timely and properly serve it with a notice of claim (see
Contrary to the County’s contention, it failed tо 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
The Supreme Court also correctly determined that the County did not establish its prima facie entitlement to judgment as a matter of law by demonstrating that its conduct was not a proximate cause of the plaintiffs’ damages. In support of its motions, the County submitted an affidavit of an expert meteorologist, and an affidavit of an expert engineer, who opined that the drainage system at the pond was not designed to accommodate a storm of that magnitude, and that an overflow would have occurred аs a result of the storm, even had a blockage of the drains not occurred. However, there may be more than one proximate cause of an occurrence, and it is generally for the trier of fact to determine the issue of proximate cause (see Sweet v Perkins, 196 NY 482, 485 [1909]; Lukyanovich v H.L. Gen. Contrs., Inc., 141 AD3d 693 [2016]; Kalland v Hungry Harbor Assoc., LLC, 84 AD3d 889 [2011]). Here, in suрport of its motions the County also submitted an affidavit from a County employee who stated that on the date of the incident both of the turbidity curtains became detached, and that one of the curtains then blocked a drain or grate. In light of, inter alia, that evidence, the County failed to establish, prima facie, that the weather was the sole proximatе cause of the occurrence (see Carbonaro v Town of N. Hempstead, 97 AD3d at 625-626; Zeltmann v Town of Islip, 265 AD2d 407, 408 [1999]).
Moreover, in light of, inter alia, the fact that the County has not disclosed any records relating to the ongoing work at the
The Galvin-Madhue defendants, who were independent contractors working on the environmental improvement project, failed to demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross claims insofar as asserted against them in the Nachamie action, and Galvin Bros. failed to make that showing in the Hauser action. Contrary to these defendants’ contention, they failed to show that they owed no duty of care to the plaintiffs. Generally, an independent contractor owes no tоrt duty of care to third parties (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). However, there are “three situations in which a party who enters into a contract to render services may be said to have assumed a duty of care—and thus be potentially liable in tort—to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of his duties, ‘launche[s] a force or instrument of harm’; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties and (3) where the contracting party has entirely displаced the other party’s duty to maintain the premises safely” (id. at 140, quoting Moch Co. v Rensselaer Water Co., 247 NY 160, 168 [1928] [citations omitted]; see Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 589 [1994]). The complaints in both of these actions, construed in the light most favorable to the plaintiffs (see Santos v Deanco Servs., Inc., 104 AD3d 933, 934 [2013]), alleged, inter alia, that the first exception to that general rule applies here. The Galvin-Madhue defendants, in their motion in the Nachamiе action, and Galvin Bros., in its motion in the Hauser action, failed to establish, prima facie, that they did not “launch a force or instrument of harm” by creating or exacerbating a dangerous condition at the project site, particularly since they submitted no records of the work actually performеd at the site (see Perry-Renwick v Giovanni Macchia Landscaping & Gardening, Inc., 136 AD3d 772, 773 [2016]; Harris v Lanai House, Inc., 111 AD3d 603 [2013]; Gordon v Pitney Bowes Mgt. Servs., Inc., 94 AD3d 813 [2012]; St. Paul Travelers Cos., Inc. v Joseph Mauro & Son, Inc., 93 AD3d 658, 661 [2012]). Therefore, they did not demonstrate that they owed no duty of care to the respective plaintiffs.
The Galvin-Madhue defendants and Galvin Bros. also contend that they were entitled to judgment as a matter of law
However, the Galvin-Madhue defendants and Galvin Bros. failed to establish, prima facie, that their work was properly performed in accordance with the engineering plans and specifications supplied by the County and DeBruin. Although they submitted an affidavit from a senior project manager who asserted thаt the turbidity curtains were constructed in accordance with the plans and specifications, he did not refer to any specific records relating to the construction, inspection, or maintenance of the turbidity curtains that formed the basis for his conclusion, and the Galvin-Madhue dеfendants and Galvin Bros. submitted no such records in the Nachamie action or the Hauser action, respectively. Similarly, although the Galvin-Madhue defendants and Galvin Bros. relied in part on an affidavit from an expert engineer who stated that the turbidity curtains were installed according to thе plans and specifications, he did not refer to any specific records regarding the construction or installation of those devices that formed the basis for that conclusion. These defendants also submitted no evidence as to whether any maintenance of the turbidity curtаins was required, and whether any such maintenance was properly performed. Therefore, they failed to demonstrate, prima facie, that their work was properly performed in accordance with the plans and specifications provided by the County and DeBruin (see Miccio v Wade Lupe Constr. Co., 207 AD2d 599, 601 [1994]; cf. Nichols-Sisson v Windstar Airport Serv., Inc., 99 AD3d 770, 772 [2012]).
The Galvin-Madhue defendants and Galvin Bros. also failed to establish their prima facie entitlement to judgment as a matter of law based on lack of causation, as they failed to show that the weather was the sole proximate cause of the subject
Additionally, as the plaintiffs correctly assert, further discovery is warranted with respect to, inter alia, the work actually performed by the Galvin-Madhue defendants and Galvin Bros. at the project site, as those defendants have nоt yet disclosed any records containing that information (see
DeBruin did not demonstrate its prima facie entitlement to judgment as a matter of law dismissing the complaint in the Nachamie action insofar as asserted against it. The complaint in that action alleged, inter alia, that DeBruin created or exacerbated the defective condition at the site. In support of its motion, DeBruin failed to establish, prima facie, that it did not “launch a force or instrument of harm,” giving rise to a duty of care to third parties (see Espinal v Melville Snow Contrs., 98 NY2d at 140). DeBruin’s contract with the County gave DeBruin the responsibility for performing certain inspection services at the site, аnd preparing modified plans as needed. DeBruin submitted no evidence as to the work it performed at the site. Accordingly, it did not establish that it was not negligent in connection with this project (see Perry-Renwick v Giovanni Macchia Landscaping & Gardening, Inc., 136 AD3d at 773; Harris v Lanai House, Inc., 111 AD3d at 603-604).
DeBruin also failed to make a prima facie showing that any negligence on its part was not a proximate cause of the plaintiffs’ damages (see Carbonaro v Town of N. Hempstead, 97 AD3d at 625-626; Zeltmann v Town of Islip, 265 AD2d at 408). DeBruin’s remaining contention is without merit.
Since DeBruin did not demonstrate its entitlement to dismissal of the plaintiffs’ claims against it, it failed to establish its entitlement to dismissal of the codefendants’ cross claims against it for contribution (see Jones v Rochdale Vil., Inc., 96 AD3d 1014, 1018 [2012]; Torres v W.J. Woodward Constr., Inc., 32 AD3d 847, 848-849 [2006]). However, as DeBruin correctly contends, the codefendants failed to assеrt viable cross claims against it for common-law indemnification (see Lui v Town of E. Hampton, 117 AD3d 689, 691 [2014]; Bleecker St. Health & Beauty Aids, Inc. v Granite State Ins. Co., 38 AD3d 231, 233 [2007]). Consequently, upon reargument, the Supreme Court should have vacated its prior determination denying that branch of DeBruin’s motion which was for summary judgment dismissing the cross claims for common-law indemnification
Rivera, J.P., Chambers, Roman and Brathwaite Nelson, JJ., concur.