On August 31, 2022, this Court conducted a full trial on all issues pertaining to the complaint in this action. The Court listened to testimony and considered evidence presented by both parties hereto.

In October 2021, plaintiff noticed a steady stream of water leaking into her backyard. Plaintiff contacted the City of Yonkers Department of Public Works Water Department (hereinafter the "City") for assistance. Plaintiff alleges the City was negligent when its employees advised her the leak, causing water to accumulate in her backyard, originated from her waterline.

On approximately November 5, 2021, employees of the City determined the leak was coming from a nearby fire hydrant and proceeded to rectify the situation. After the repairs were completed, plaintiff noticed the leak into her backyard continued. A City employee then determined the leak stemmed from plaintiff's waterline. Subsequently, to avoid fines and violations from the City, plaintiff hired a contractor to repair, what she believed based on the City's information, was her malfunctioning waterline. (Exhibit 1). Plaintiff's contractor determined the leak did not originate from plaintiff's waterline, rather, the leak originated from the neighbor's waterline. Plaintiff argues she relied on the services and information received from the City employees. Plaintiff alleges the City should have used better equipment to determine the source of the leak.

Defendant argued plaintiff failed to meet her burden to successfully obtain a judgment against the City pursuant to Trenholm-Owens v. City of Yonkers. Exhibit. B; Trenholm-Owens v. City of Yonkers, 197 AD3d 521 (2nd Dep't 2021). Defendant presented testimony from Edward Gomez, a City employee. Mr. Gomez testified, at first, the City believed the leak originated from a fire hydrant but it was later determined the fire hydrant was not the source of the leak. [*2]Thereafter, Mr. Gomez went to plaintiff's residence to inspect her waterline. Using a geophone, he determined plaintiff's waterline was the source of the leak. Mr. Gomez testified he normally tests the geophone to ensure it is functioning properly by running it next to a sink. Once the needle in the geophone moves, he assumes it is working properly. Mr. Gomez then testified he used the geophone on plaintiff's water meter, which was next to the boiler, and the needle on the geophone moved. This led him to the conclusion the leak was coming from plaintiff's waterline.

Mr. Gomez testified that after his determination, plaintiff hired a company to excavate into her waterline. The company contacted Mr. Gomez to verify his findings. Mr. Gomez then conceded, when he performed the same test he conducted on plaintiff's water meter on plaintiff's actual waterline, the geophone needle did not move. Mr. Gomez' final determination was the leak did not originate from plaintiff's waterline. Subsequently, it was determined the leak originated from the next-door neighbor's waterline and the issue was resolved.

Decision

After hearing all the credible evidence, this Court finds plaintiff is entitled to judgment against defendant in the amount of $3,200.00.

When a negligence claim is asserted against a municipality, the first issue for the Court to decide is whether the municipal entity was engaged in a proprietary function or acted in its governmental capacity at the time the claim arose. Trenholm-Owens, 197 AD3d at 522. A government entity performs a purely proprietary role when its activities essentially substitute for or supplemental traditionally private enterprises. Id. at 523. When a municipality acts in a propriety manner, plaintiff must prove the municipality was functioning or substituting as a private individual or enterprise. Ferreira v. City of Binghamton, 38 NY3d 298 (2022).

Based on the testimony and evidence, plaintiff proved the City's employees' actions were proprietary and not governmental. The maintenance of a municipal water system to provide water for the private use of residents has been deemed to be a proprietary function. Billera v. Merritt Const., Inc., 139 AD3d 52, 56 (3rd Dep't 2016); De Witt Properties, Inc. v. City of New York, 44 NY2d 417, 423-424 (1978); D & D of Delhi, Inc. v. Vill. of Delhi, 47 AD3d 1117, 1118 (3rd Dep't 2008). The specific act which gave rise to this claim is when Mr. Gomez inspected a private home for a leak. This is a function a private company could have undertaken.

Defendant submitted into evidence case law, Trenholm-Owens v. City of Yonkers, to support its defense that the City should be immune from litigation in this matter because it acted in a governmental capacity. Trenholm-Owens, 197 AD3d 521. However, there was no testimony Mr. Gomez acted in a manner which would enable the City to assert an immunity defense. Although in this instance, Trenholm-Owens is similar, the basis for the action is distinguishable. In Trenholm-Owens, appellant's cause of action was based on the City's use of violations, or threat of violations, that compelled plaintiff to repair what was believed to be a defective sewer connection and a related excavation. In this instance, plaintiff did not act because of the City's use of violations, or threat of violations. Plaintiff acted because she wanted to stop water from leaking into her backyard which was the reason she contacted the City for assistance in the first place.

Within New York State, as in all negligence proceedings, for plaintiff to succeed with a negligence claim against a municipality plaintiff must prove (1) a duty owed by defendant to plaintiff; (2) a breach thereof; and (3) injury proximately resulting therefrom. Solomon v City of New York, 66 NY2d 1026, 1027 (1985). Plaintiff must show there was some action or inaction that caused the defendant's liability. Id. When a municipality's actions fall in the proprietary [*3]realm, it is subject to suit under the ordinary rules of negligence applicable to nongovernmental parties. Applewhite v. Accuhealth, Inc., 21 NY3d 420, 425 (2013).

As this Court finds the City's actions were proprietary, plaintiff does not need to establish defendant owed plaintiff a special duty. Rather a legally recognized duty is sufficient. Ferreira, 38 NY3d at 308. In Ferreira, since the municipality performed a governmental function, plaintiff was required to prove the municipality assumed a duty to the plaintiff beyond what was owed to the general public. Id. Notwithstanding plaintiff meeting their burden, the municipality may still assert a "governmental function immunity defense." Id.

This Court finds the governmental immunity defense inapplicable to the present matter. In this instance, based on the testimony and evidence, plaintiff proved the actions and inactions of Edward Gomez, a City employee, were negligent when he (1) had a duty to correctly assess where the leak was coming from; and (2) breached his duty by erroneously determining the leak originated from plaintiff's waterline. Mr. Gomez was the sole professional plaintiff relied on and no other entity inspected plaintiff's waterline. Secondly, he erroneously determined the leak originated from a nearby fire hydrant and then plaintiff's waterline. Plaintiff establishes she suffered (3) injury in the amount of $3,200.00 when she relied on defendants' inspection and then hired a private company to come and fix the alleged leak. The source of the leak was ultimately determined to have originated from plaintiff's neighbor's waterline.

Mr. Gomez' testimony confirmed defendant's negligence. Mr. Gomez testified there was no location to place the geophone to determine if there was a leak in plaintiff's waterline. Thus, the water meter was the only location he could obtain an accurate reading to determine if plaintiff's waterline was the source of the leak into plaintiff's backyard. Mr. Gomez testified the water meter was next to the boiler, which he left on. He then conceded, with the boiler being on, it could have caused the geophone to respond to running water. This causing a "false positive" and wrongly indicating the origin of the leak. Additionally, Mr. Gomez did not testify as to whether he attempted to turn off plaintiff's waterline or an inability to do so. Thus, this Court finds defendant was negligent when he erroneously determined the leak into plaintiff's backyard originated from plaintiff's waterline.

This Court does parenthetically note the similarity in Trenholm-Owens v City of Yonkers, that if plaintiff, in this instance, alleged unjust enrichment for the permit fee plaintiff paid to the City for the excavation, it may have been sufficient to award an additional judgment. See Trenholm-Owens, 197 AD3d 521; Exhibit 1 invoice from Sam Dahdal, Inc.

Therefore, based on the testimony and evidence, this Court finds sufficient evidence to find in favor of plaintiff. Defendant failed to provide the Court with a sufficient defense against plaintiff's claim.

Accordingly, plaintiff is awarded judgment against defendant in the amount of $3,200.00 plus costs.

As such and for all of the foregoing, the Court finds in favor of the Plaintiff in the amount of $3,200.00 plus costs of $20.00 for a total of $3,220.00.