The following papers numbered 1-2 were marked fully submitted on the 18th day of May, 2011:

Papers

Numbered

Notice of Motion to Dismiss

by The City of New York,

Defendant in Action Nos. 1 and 2, with [*2]

Supporting Papers and Exhibits

( dated January 25, 2011)...................................................................................1

Notice Of Opposition to Dismiss

Plaintiff's Claim By Plaintiff

Eugene J. Carroll, Jr. with

Supporting Papers and Exhibits

(dated June 6, 2011)...........................................................................................2

____________________________________________________________________ __________

Upon the foregoing papers, the motion to dismiss the complaint, and all crossclaims or, in the alternative for summary judgment dismissing the complaints and all crossclaims as against defendant The City of New York [hereinafter the "City"] is granted.^[FN1]

Plaintiffs in Action No. 1, Nicholas and Julie Delbianco claim that the premises which they own, located at 167 Rathbun Avenue on Staten Island, became flooded during a rainstorm on June 29, 2006. This flooding was a result of the run off of water caused by a clogged catch basin on an adjacent, and vacant parcel of land known as 163 Rathbun Avenue, which was owned by defendant Maryland Holding. The plaintiff in Action No. 2, Eugene J. Carroll Jr., was a tenant of the Delbianco's at the time of the alleged flooding and claims to have sustained property damage.In their complaint, plaintiffs in Action No.1 maintain that the City improperly maintained the drainage system on the abutting property and improperly approved a change in the design to its drainage system, all of which rendered that system insufficient to handle the anticipated runoff of a severe rainstorm. Among other things, the plaintiffs claim that the grate through which water would flow from the drain pipe into the catch basin was installed in such a way as to allow debris to accumulate against the grate, causing it to become clogged, and thereby creating a flooding condition.

In support of its motion, inter alia to dismiss, the City claims that it has no duty to maintain a drainage system on private property and therefore cannot be held liable for any damages due to a blockage of the flow of water within it; further, since approval of such a system would be a discretionary act on the part of its employees, no liability can attach to the City for granting such approval.

A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, advancing sufficient evidence to demonstrate the absence of any material issues of fact ( see Silverman v. Perlbinder, 307 AD2d 230 [1st Dept. 2003]).

As to the first theory of liability against it, the City has produced evidence in admissible form through the deposition testimony of Paul Faublas, the chief of the drainage review section for the Department of Environmental Protection ("DEP") that the maintenance of this drainage system was the responsibility of the owner of the property, Maryland Holding, rather than the City. Specifically, the prior owner of 163 Rathbun Avenue had filed a Declaration of Maintenance with the Richmond [*3]County Clerks Office which, among other things, provided that the owner and his heirs, successors, and assigns were responsible for the continued and proper maintenance of the drainage system. The premises were conveyed by the prior owner to Maryland Holding on May 25, 2005, approximately 13 months prior to the flooding incident which forms the basis of the plaintiffs' complaints. As this testimony is unrebutted, the only evidence properly before the court demonstrates that responsibility for the maintenance of the drainage system on the abutting property did not rest with the City.

As to plaintiff's second theory of liability , that is, that the City improperly approved the change in the drainage system on the abutting property, the City argues that such was a discretionary act by the employees of the DEP for which no liability may attach. Specifically, the City claims that there are three steps taken before the DEP issues an approval: (1) a developer or owner would need to submit a drainage proposal which would include the pipe design and the declaration of maintenance; (2) if the proposal is approved, a private drainage plan would be submitted to the DEP to show how the proposed drainage pipe would be constructed; and, (3) the DEP would inspect the pipe while it was under construction and, thereafter would "sign-off" on it. Since each of these steps involved an exercise of judgment on the part of the employees of the DEP, the City argues that they constitute discretionary acts.

The only party to oppose this motion is plaintiff in Action No. 2 Eugene J. Carroll. He argues that approximately 6 months after this flooding incident, the DEP approved the installation of emergency storm pipes to prevent further flooding at 167 Rathbun Avenue. In support of this argument he attaches two documents (one of which is labeled "Service Request Detailed Report" and the second labeled "Completed Storm Main Work Order") which he claims to have obtained from the DEP, and which ostensibly relate to the installation of a new municipal sewer on Jefferson Boulevard between Drumgoole Road and Rathbun Avenue. It appears from the Service Request Detailed Report that this activity was begun due to a call received on November 29, 2006 from "Danny L. From Emergency Reconstruction". The sewer work was apparently begun on December 4, 2006 and completed on February 5, 2007.

Although uncontroverted, these documents fail to establish a causal connection to the conditions which ostensibly led to the flooding underlying the plaintiffs complaints. If these documents are accurate (and the pro se plaintiff has, so far, presented the Court with only uncertified copies) this work was undertaken six months after the flooding at issue based upon a complaint which makes no reference to the properties or parties at issue here. In addition, it has not been established that this work had anything to do with the grating which allegedly became clogged and led to the flooding. Indeed, at the deposition of plaintiff Eugene Carroll (which was conducted on October 6, 2008), he testified that the flooding was caused due to a clogged catch basin. On this issue, he was specifically asked whether or not this catch basin was changed after the flood and he stated that it was not (see Deposition of Eugene Carroll Jr, Exhibit I, Motion to Dismiss by the City, p. 22 l. 4-14).

In McLean v. City of New York, (12 NYd 194, 203 [2009]) the Court of Appeals held that government action, if discretionary, may never form the basis for tort liability, even if a special relationship exists between the plaintiff and the municipality. (see also Dinardo v. City of New York 13 NY3d 872 [2009]). In this matter, the City has presented sufficient evidence in admissible form to demonstrate prima facie that the approval of the design for a water drainage system on private [*4]property would be a discretionary act on the part of employees of DEP, and therefore, cannot form the basis of liability against the City.

Accordingly, it is

ORDERED that the motion to dismiss by defendant the City of New York is granted; and it is further

ORDERED that the complaint and any crossclaims as against said defendant in each action are severed and dismissed; and it is further

ORDERED that the clerk enter judgment and mark his records accordingly.

DATED: July 18, 2011

ENTER,

__/s/_____________________Hon. Thomas P. Aliotta

J.S.C.