Balnys v. Town of New Baltimore

Mercure, J. Appeal from that part of an order of the Supreme Court (Cobb, J.), entered February 17, 1989 in Greene County, which partially denied defendant Town of New Baltimore’s motion for summary judgment dismissing the complaint. Plaintiffs commenced this action against defendants, the Town of New Baltimore and the County of Greene, to recover for property damage alleged to have been caused by the buildup of water behind a blocked culvert. Following joinder of issue, service of a bill of particulars and considerable discovery, the town moved for summary judgment dismissing the complaint against it upon the ground that "the subject property and culvert are owned and controlled by the [county], with no responsibility or duty therefor on the [town]”, thus eliminating any factual issue "as to responsibility for and the ownership, maintenance and construction” of the culvert. Supreme Court granted partial summary judgment dismissing the complaint to the extent that it sought recovery against the town based upon failure or improper maintenance of the culvert but denied the motion to the extent that the complaint alleged that the town caused an increase in the amount of runoff flowing through the culvert. The town appeals. There should be an affirmance. In its motion for summary judgment, the initial burden was on the town to make a prima facie showing of entitlement to judgment as a matter of law by coming forward with competent proof refuting the allegations of the complaint as amplified by the bill of particulars (see, Alvarez v Prospect Hosp., 68 NY2d 320, 325; Conti v Albany Med. Center Hosp., 159 AD2d 772, 773). In the action before us, plaintiffs’ bill of particulars alleged that the town "consciously increased the volume of water flowing to the channel * * * upsetting the balance of the waters flowing to that channel and resulting in overflow and flooding”, an allegation which, if uncontroverted, would provide a basis for a finding of liability in the town (see, Noonan v City of Albany, [1137] 79 NY 470; cf., Stanklus v County of Montgomery, 86 AD2d 908, 909, appeal dismissed 60 NY2d 701, lv denied 60 NY2d 555). The town did not come forward with competent evidence to disprove the allegation (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853), thus failing in its burden. Accordingly, Supreme Court quite correctly denied the motion for summary judgment in that regard. Finally, on the record before us, we find no basis for a grant of summary judgment in favor of the county, which neither sought summary judgment in Supreme Court nor appealed Supreme Court’s order. Order affirmed, without costs. Kane, J. P., Yesawich, Jr., and Mercure, JJ., concur.