Lagala v. Town of Brookhaven

2018 NY Slip Op 33037(U)

RAY LAGALA & STEPHANY LAGALA, Plaintiffs, v. TOWN OF BROOKHAVEN, Defendant.

INDEX NO.: 20681/2011

SUPREME COURT - STATE OF NEW YORK I.A.S. PART 38 - SUFFOLK COUNTY

November 14, 2018

SHORT FORM ORDER

PRESENT: HON. WILLIAM G. FORD JUSTICE OF THE SUPREME COURT

Motions Submit Date: 07/20/17

Mot Seq 001 Mot D

Mot Seq 002 Mot D; RTC

PLAINTIFF'S COUNSEL:

Frederick P. Stern, PC

2163 Sunrise Highway

Islip, New York 11751

DEFENDANT'S COUNSEL:

Annette Eaderesto, Esq.

Brookhaven Town Attorney

1 Independence Hill

Farmingville, New York 11738

On the parties' motions, the Court considered the following papers:

1. Notice of Cross-Motion to Dismiss & Affirmation in Support dated October 18, 2016 and supporting papers;

2. Notice of Motion to Strike Answer & Affirmation in Support dated August 16, 2061 and supporting papers;

3. Plaintiff's Affirmation in Opposition dated April 10, 2017;

4. Defendant's Reply Affirmation in Further Support of Dismissal dated June 6, 2017; and upon due deliberation and full consideration; it is

ORDERED that defendant's cross-motion to dismiss the complaint pursuant to CPLR 3211(a)(7) for failure to state a claim is granted in part, and denied in part as follows; and it is further

ORDERED that plaintiffs' motion to strike defendant's answer pursuant to CPLR 3126, or in the alternative to compel additional discovery pursuant to CPLR 3124 is granted in part, and denied in part as follows; and it is further

ORDERED that the counsels' upcoming appearance on the compliance conference calendar is adjourned to Thursday, March 28, 2019 in accord with the following; and it is further

ORDERED that defendant serve a copy of this decision with notice of entry on plaintiffs' counsel by certified mail, return receipt requested forthwith.

I. FACTUAL BACKGROUND & PROCEDURAL POSTURE

This negligence action commenced by plaintiffs Ray & Stephany Lagala against the municipality Town of Brookhaven relates to their claims of negligence and property damage arising from flooding which occurred on or about March 30, 2010, at or near their property located on Swezeytown Road in the hamlet of Middle Island, Town of Brookhaven, County of Suffolk, New York. In their complaint, plaintiffs allege that the Town negligently designed, maintained or installed storm runoff catch basins, recharge basins, sumps or sewers in the vicinity of plaintiff's residence. During discovery, the plaintiffs further alleged their belief that Town negligently designed or installed the drainage/sewer system at the nearby Oak Pond Townhouse development commonly known as Stonegate, which they allege caused or contributed to the flooding at subject of this action.

The Town answered the complaint and has presently moved to dismiss the complaint for failure to state a cause of action.

II. SUMMARY OF THE PARTIES' ARGUMENTS

Defendant emphasizes a set of facts which they argue leads to the conclusion that 1. the Town cannot be held liable for negligence for a drainage or sewer system at Stonegate it does not own, operate, maintain, possess or control; 2. the Town's involvement at Stonegate arises out of an obligation imposed upon it by courts of competent jurisdiction, and thus were discretionary acts subject to municipal liability.

Supporting these arguments, defendant notes that this dispute traces its roots back to the original approval of the Stonegate site plan review and approval process which itself was the subject of litigation. In or around September 26, 1988 the Brookhaven Town Board initially denied Stonegate' site plan, resulting in a CPLR Article 78 proceeding challenging that denial on or about October 26, 1988. Supreme Court reversed that determination in a decision rendered on March 24, 1989. The matter further involved a federal action. The parties then resolved their dispute by stipulation entered on or about May 2, 1990, whereby inter alia the Town agreed to design Stonegate's drainage or sewer system. In furtherance of its obligations under the courts' orders and the parties' stipulation, the Town retained an engineering firm Nelson & Pope, who further involved an additional firm LMK Associates, Inc. who designed constructed and installed Stonegate's drainage system. The parties do not dispute that final approval of Stonegate's site plan occurred in 1994. Thus, defendant argues it made a discretionary policy choice to abide its bargained and agreed upon obligation and court order to design the Stonegate drainage system and cannot now be held liable on a negligence theory as it is immune.

Moving separately, plaintiff seeks to strike defendant's answer as a sanction for what it perceives to be willful and contumacious refusal by defendant to provide demanded discovery. More specifically, plaintiff has demanded production by defendant of a witness for examination before trial knowledgeable about the site plan review process for the Stonegate community's drainage and sewer system. Further, in advance of that proceeding, plaintiffs have requested production of a copy of the Town's planning department file concerning site plan approval. Despite Supreme Court ordering production by defendant of a witness knowledgeable on this area in 2015, plaintiff argues that defendant has failed to abide that order and provide discovery.

Plaintiff notes that in February 2015, defendant produced for deposition Mark Kelly, a Town Highway Dept. supervisor in charge of the vicinity in which plaintiffs and Stonegate resides. However, his testimony made clear to the parties that he was not a supervisor in that area when the Stonegate development was approved. As a result, Mr. Kelly could not provide actionable information to plaintiffs concerning the site plan review process for Stonegate or information regarding its drainage system prior to 2005.

At defendant's suggestion, plaintiff sought deposition of an engineer James DeKonig, employed by LMK Associates, Inc., one of the Town retained engineering firms involved in the design and construction of Stonegate's drainage system. However, plaintiff argues that witness also proved unhelpful since he was not the engineer assigned to or involved with the Stonegate project. Defendants have advised that the engineer who was is no longer employed by the engineering firm. Further, plaintiff has sought production of the Town's Stonegate site plan approval file via FOIL to no avail, with the Town responding that after a search no responsive documentation was located. As a result, plaintiff moves seeking to sanction defendant, or in the alternative, compel defendant to produce a knowledgeable witness and a copy of the requested documentation.

III. DISCUSSION

A. Dismissal for Failure to State a Claim

Defendant seeks to dismiss plaintiffs' complaint making two distinct arguments. First, defendant generally argues that it cannot bear any liability sounding in negligence for drainage or sewers it neither owns, operates or controls. Defendant is correct in this regard. Going even further, defendant alternatively argues that the Town is immune from liability for a discretionary governmental function. That argument must be unsuccessful as explained below.

In considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Nonnon v. City of New York, 9 NY3d 825, 827; Leon v. Martinez, 84 NY2d 83, 87-88; Paolicelli v. Fieldbridge Assoc., LLC. 120 AD3d 643, 644; Wallkill Med. Dew., LLC v Catskill Orange Orthopaedics, P.C., 131 AD3d 601, 603 [2d Dept 2015]). Nonetheless, the courts are reminded that on a motion to dismiss the facts pleaded are presumed to be true and are to be accorded every favorable inference, "bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration" (Intl. Fid. Ins. Co. v Quenzer Elec. Sys., Inc., 132 AD3d 811, 812 [2d Dept 2015]).

"Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38).

The test of the sufficiency of a pleading is 'whether it gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments'" (Dolphin Holdings, Ltd. v Gander & White Shipping, Inc., 122 AD3d 901, 902, 998 NYS2d 107, 108 [2d Dept 2014]).

Reading plaintiffs' complaint broadly as pled, plaintiffs claim the Town negligent both for negligent design and maintain or failure to properly install or repair drainage or sewers in. around or in the vicinity of their residence. In the parties' briefing and during discovery, it appears they have focused on the Stonegate development. However, plaintiffs' counsel has also made clear that the complaint also incorporates reference to two separate sumps or recharge basis situated at either end of the plaintiff's development or subdivision. This saves plaintiff's complaint from complete dismissal.

As regards the law of municipal immunity, a municipality is immune from liability "arising out of claims that it negligently designed a sewage system (Tappan Wire & Cable, Inc. v. County of Rockland, 7 A.D.3d 781,782, 777 N.Y.S.2d 517; see Fireman's Fund Ins. Co. v. County of Nassau, 66 A.D.3d 823, 824, 887 N.Y.S.2d 242). However, a municipality "is not entitled to governmental immunity arising out of claims that it negligently maintained the sewerage system as these claims challenge conduct which is ministerial in nature" (Tappan Wire & Cable, Inc. v. County of...