The Belway Place/Oakley Avenue area in the City of White Plains ("the City") is situated at the bottom of a 300 acre basin. It is one of the lowest areas in the City and lies adjacent to the Mamaroneck River and between elevated portions of Route 287 [*2]also known as the Cross Westchester Expressway ("CWE") and an expressway access road. In the late 1950s the State of New York ("the State") built a headwall located under Main Street to accommodate runoff from the newly constructed CWE. In constructing the headwall, the State Department of Transportation ("the NYS DOT") connected both the City and the Town of Harrison's (an adjoining town) storm drainage pipes into the headwall to allow for storm drainage from City and Town streets.

When originally built, the water passing through the headwall flowed into an open tributary over private and State property allowing storm water runoff to drain into the Mamaroneck River. All of the pipes connected to the headwall were installed by the NYS DOT. The water flowed through these pipes under a 20 foot berm which supports the CWE and entered a drainage ditch at the headwall on property owned by the City referred to herein as "the sump" and located immediately downstream of the headwall.

In the late 1970s defendant Eugene Pepe, without a permit, moved the portion of this tributary which passed over his property 22 feet towards the CWE to provide more usable space for his business.

In 1980, defendant Michael Petagine's father John Petagine sought and obtained a permit to place the portion of this tributary passing over his property into a conduit in order to construct an auto body shop on the property and over the conduit. The dimensions of the conduit, 117" x 79", were sufficient to carry all of the water that flowed through the headwall. In 1985, Petagine sold a portion of his property to defendant Joken Development Corp ("Joken"). Joken also installed culverts to accommodate the Mamaroneck tributary and erected a building on its land.

John Petagine's neighbor defendant Joseph LePino, who was issued a permit by the City, extended the conduit under his adjoining property. LePino notes that when he installed his conduit he discovered that Petagine's conduit was placed two feet lower than shown in the construction plans. Nevertheless, he proceeded to extend the conduit but adjusted the pitch of the conduit to compensate for the problem. The permits issued to Petagine and LePino had conditions that required them to maintain and clear the conduits to assure they function properly. Nevertheless, the conduit under the Petagine and LePino properties regularly filled with silt and debris.

The water that flows along Belway Place, down the street from plaintiff's property, first passes though the headwall and into the sump area located upstream from the Petagine and Lepino properties, northwest of plaintiff's property. Most of the water collecting at the headwall originates from the CWE. Once the water passes through the headwall and sump it flows under the Petagine and LePino properties. The water then flows over NYS property before flowing over Pepe's property. After passing Pepe's property, the water runs through culverts owned and maintained by the State to the Mamaroneck River.

Plaintiff John Iodice, who owns Rieman Autobody an autobody shop on Oakley Avenue, claims his property first experienced flooding in 1985 because the conduits were blocked. He claims that Petagine, LePino and Pepe failed to keep the culverts clear of silt and debris and caused the tributary to crest during heavy storms allowing water to overflow the sump and culverts, and spill onto Belway Place. Plaintiff acknowledged there had always been flooding in this area, however, he claims that it was only after Petagine installed the conduit that the water spilled further into Belway [*3]Place and down Oakley Avenue where Rieman Auto body is located.

Plaintiff claims his property was flooded on August 31, 1985, August 10, 1990, September 25, 1991, September 10, 1992, June 1, 1993, September 27, 1993, February 28-29, 1994, July 26-29, 1995, June 20, 1996, January 1, 1998, April 9, 1998, July 23, 1998, August 20, 1998, August 26, 1998 and January 3, 1999.

According to plaintiff, the flooding occurs because Petagine did not properly install his conduit and LePino contributed to the problem by connecting his conduit to Petagine's conduit. In addition, both Petagine and LePino failed to keep the conduits clear of accumulated silt and debris. Further, plaintiff claims that runoff from the Town of Harrison which flows down Main Street during flash floods contributes to the flooding on Belway Place/Oakley Avenue.

In the 1990s the City brought enforcement charges against Petagine for failing to clean silt out of the conduit pipe and he was convicted of the same violation in 2004. Despite frequent requests by the City, LePino only cleaned the culvert twice in 1996-97 and about 7 years before this trial in 2013.

In an effort to address the continuing flooding problem on Belway Place/Oakley Avenue, the City requested that the NYS DOT dredge the portion of the Mamaroneck River tributary crossing State property thereby lowering the streambed downstream from the Petagine and LePino properties. In a further effort to alleviate the Belway Place/Oakley Avenue flooding problem, the City wrote to the NYS DOT in 1995 and suggested that as part of the planned reconstruction of the CWE the State construct a means to retain storm water in two holding facilities to delay the speed at which the water drains into the Mamaroneck River tributary. The City also suggested that a drainage pipe be installed to lead water from the storm water retention structures and bypass the headwall at Main Street, meeting the Mamaroneck River further downstream.

The State incorporated the City's suggestions as well as instituted its own plan to address the problem. These improvements resulted in a 32% decrease in the volume of water passing through the headwall. Thereafter, and up to the time of trial, there was no further flooding in the Belway Place/Oakley Avenue area.

On February 2, 1999, plaintiff filed a notice of claim with the City with respect to the January 3, 1999 flood.

On August 7, 2000, plaintiff commenced this property damage action against the City, Town of Harrison, County of Westchester, NYS Thruway Authority, John Petagine, Jan Perrucchio, Michael Petagine, Joseph Lepino, Lepino Building, Corp., Joken Development Corp. and Eugene N. Pepe. In his complaint, plaintiff claims that Petagine and LePino negligently constructed their conduits and that Pepe wrongfully relocated the portion of the drainage system that passed over his property. He claims that the defendants negligently designed, constructed, or altered the drainage system resulting in a flood on his property on January 3, 1999 and on multiple other dates beginning in 1985. He also claims that defendants failed to keep the water system and related structures in a safe and suitable condition to insure that the system provided proper drainage in the area. Plaintiff further claims that due to defendants' negligent, design, construction, alterations, maintenance and oversight he suffered damage to his [*4]property, lost business and suffered a diminution of the value of his property.^[FN1]

Plaintiff seeks compensatory and injunctive relief against the City, requiring the City to remedy the drainage problems.

Issue was joined by the City in August 2000.

A non-jury trial was held before this Court from June 25 to July 17, 2013.

Discussion

At trial the City argued that it was not liable to plaintiff because it did not design or construct the drainage system and had no control over the Petagine, LePino, Joken, and the State properties. Moreover, the City argued that it owed no general or special duty to plaintiff to prevent the January 3, 1999 flood. Further, it asserts that it is immune from suit for issuing building permits to Petagine and LePino and inspecting their work.

The City's Duty to Plaintiff

The evidence presented at trial established that the City did not have ownership or control of the conduits or the stream which filled with debris, thereby causing the flooding conditions experienced by plaintiff. These conduits and obstructions occurred on private and State property, thus the City had no duty to maintain or repair that portion of the tributary to the Mamaroneck River. The City did, however, comply with its duty to maintain the small portion of the drainage system that was under its ownership and control, to wit, a drainage ditch at the headwall referred to herein as "the sump." (See Carbonaro v. Town of North Hempstead, 97 AD3d 624 [2nd Dept 2012]).

To the extent plaintiff argues that the City should have made repairs on private and State property Joseph Nicolette, the City Commissioner of Public Works, testified at trial that the City had no control over conditions on private property. Notably the City did not install the Petagine or LePino conduits which allegedly caused the flooding. Further, the evidence at trial established that the flooding of Belway Place/Oakley Avenue was the result of a combination of the runoff from the CWE, the failure to maintain the conduits on the Petagine and LePino properties, and an accumulation of debris downstream on Pepe's property; all these conditions were created by third parties, not the City. (See Legge Co. v City of Peekskill, 210 AD2d 317, 619 N.Y.S.2d 771 [2nd Dept 1994]["The fact that a natural waterway was used as part of the municipal drainage system did not, based on the evidence adduced at trial, establish any duty on the part of the City to take corrective action with respect to conditions situated entirely on the private lands of an adjoining property owner that allegedly caused the waterway to overflow (citations omitted)"]).

Although plaintiff argues that the City owes him a duty because it caused the flooding by permitting Petagine and LePino to install conduits, such argument is unavailing since official acts of building inspectors and other code enforcement officers are discretionary and, therefore, immune from suit (See generally Valdez v. City of New York, 18 NY3d 69 [2011]).

Plaintiff's argument that the City owed him a special duty because it promised to [*5]fix the flooding problem and, in fact, actively sought to resolve the flooding on Belway Place/Oakley Avenue is also without merit.

"The elements of this [type of] special relationship' are: (1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking" (Cuffy v City of New York, 69 NY2d 255, 513 N.Y.S.2d 372 [1987] see Shinder v State of New York, 62 NY2d 945, 946 [1984]).

The evidence presented at trial demonstrates that the actions taken by the City to address the flooding in the Belway Place/Oakley Avenue area were for the benefit of all property owners and public users of Belway Place which is a heavily-used access point to the CWE/Interstate 287. (See Valdez v City of New York, 18 NY3d 69, 936 N.Y.S.2d 587 [2011][To sustain liability against a municipality, the duty breached must be more than that owed the public generally.]). The act of dredging its portion of the drainage system and attempting to compel Petagine, LePino or the State to maintain their respective portions of the water system were done by the City for the benefit of all property owners and users of Belway Place/Oakley Avenue. These acts were not undertaken solely for the benefit of plaintiff. There is no evidence that the City undertook an affirmative duty specifically to plaintiff in attempting to have the owners maintain the portions of the drainage system on their property.

To the extent that plaintiff argues that the City breached its duty to maintain its portion of the drainage system, this argument is likewise without merit. There was ample evidence presented at trial which established that the City properly maintained the sump area and cleared it often.

A municipality is immune from liability "arising out of claims that it negligently designed the sewerage system" (Tappan Wire & Cable, Inc. v County of Rockland, 7 AD3d 781, 782 [2004] see Fireman's Fund Ins. Co. v County of Nassau, 66 AD3d 823, 824 [2009]). 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 Rockland, 7 AD3d at 782; see De Witt Props. v City of New York, 44 NY2d 417, 423-424 [1978] Biernacki v Village of Ravena, 245 AD2d 656, 657 [3rd Dept 1997] Moore v City of Yonkers, 54 AD3d 397 [2nd Dept 2008]). Nonetheless, a municipality is not an insurer of its sewer system and cannot be held liable for injury unless it is shown that the injury was caused by active negligence in the maintenance of the system (see De Witt Props. v City of New York, 44 NY2d at 424).

Here, the City owns a small portion of the water system in the form of the sump at the headwall. Water which flows from the City, the Town of Harrison and the CWE collects in the sump through the headwall constructed by the NYS DOT before entering the culvert on the Petagine property. The water flows under the Petagine and Lepino properties and over State property before surfacing on the Pepe property and re-entering State owned conduits. The small portion of the drainage system owned by the City was regularly maintained in conformity with prevailing standards. The evidence [*6]disclosed that the City maintains the sump by removing silt and debris from the area about three times per year or more frequently as necessary.

Based on the foregoing, plaintiff failed to prove that the City negligently designed, constructed, or altered the drainage system thereby causing the January 3, 1999 flood. Moreover, there is no evidence that the City failed to keep its sump in a safe and properly working condition. There is also no evidence that the City owed a special duty to plaintiff to remedy the flooding on Belway Place/Oakley Avenue. Further, the evidence presented at trial demonstrated that any negligence or defect in the drainage system occurred on the property of third parties; not that of the City.

The City's Immunity

In Valdez v. City of New York, (18 NY3d 69, 76-77 [2011])the Court of Appeal held that a "[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" (Valez, supra, quoting McLean v. City of New York, 12 NY3d 194, 203 [2009]).

Plaintiff claims that the City is liable to him for negligently issuing permits to Petagine and LePino allowing them to install drainage conduits, for improperly inspecting the conduits and for the issuance of certificate of occupancies after the conduit work was completed. However, because all of these acts are discretionary governmental functions the City is immune from suit for these acts (see Metz v State of New York, 20 NY3d 175, 958 NYS2d 314 [2012] Broncati v City of White Plains, 6 AD3d 476, 477 [2nd Dept 2004]).To the extent plaintiff argues that the City was required to remedy the flooding condition once it had notice of it, that argument is not persuasive since the City had no duty to maintain the conduits or other drainage facilities which were designed, installed and required to be maintained by private property owners or the State. Thus, the City did not have a continuing obligation to manage the flooding.

Conclusion

Plaintiff failed to establish by a preponderance of the evidence that the City breached any duty owed him to prevent the January 3, 1999 flood. The plaintiff also failed to establish that the City's action was the proximate cause of the January 3, 1999 flood. Further, the City is immune from plaintiff's claims of negligence in the issuance of permits and inspection of the work performed by private parties. Accordingly, this action is DISMISSED.

Dated:White Plains, New York

March 6, 2014

[*7]

HON. WILLIAM J. GIACOMO, J.S.C.

C:\HTFormat\f5032240.txt