BUHOLTZ v. COUNTY OF WAYNE (1999)

Supreme Court, Appellate Division, Fourth Department, New York.

Marleane E. BUHOLTZ, as Administratrix of the Estate of Richard Buholtz, Deceased, Respondent, v. COUNTY OF WAYNE, Appellant,
Town of Ontario, Respondent. (Action No. 1.) Judith M. Caruana, as Administratrix of the Estate of Kristen M. Caruana, Deceased, Respondent, v. County of Wayne, Appellant, and Town of Ontario, Respondent. (Action No. 2.)
Loretta Stevens, Respondent, v. Town of Ontario, Rochester Gas & Electric Corporation, Respondents,
Wayne County, Appellant. (Action No. 3.) Mark Stevens, Mason Stevens Pro-Hardware, Inc., and Massachusetts Bay Insurance Company, as Partial Subrogee of Mark Stevens and Mason Stevens Pro-Hardware, Inc., as their Interests May Appear, Respondents, v. Town of Ontario, Rochester Gas & Electric Corporation, Respondents,
Wayne County, Appellant. (Action No. 4.) DJ Shears Enterprises, Inc., Donald H. Shears and Judy M. Shears, Respondents, v. Town of Ontario, Rochester Gas & Electric Corporation, Respondents, Wayne County, Appellant. (Action No. 5.)

Decided: February 10, 1999

PRESENT: DENMAN, P.J., GREEN, HAYES, PIGOTT, Jr., and BALIO, JJ.

Osborn, Reed, Burke (James Reed, Jr., of counsel), Rochester, for Defendant-Appellant in all 5 Actions-County of Wayne. Michael R. Vaccaro, East Syracuse, for Defendant-Respondent in all 5 Actions-Town of Ontario. Norman A. Palmiere, Rochester, Samuel B. Dattilo, Penfield, for Plaintiff-Respondent in Action No. 2-Caruana. Andrews & Ransford (William Andrews, of counsel), Syracuse, for Plaintiffs-Respondents in Actions 3 and 4-Stevens and Hardware, Inc. Burke, Grossman, Valenti & Rezepka, Rochester, for Plaintiffs-Respondents in Actions 4 and 5-Hardware, Inc. and Shear. Nixon, Hargrave, Devans (Edward Case, of counsel), Rochester, for Defendant-Respondent-in Actions 3, 4 and 5-RG&E.

Defendant County of Wayne (County) appeals from an order denying its motion for summary judgment dismissing the complaints and cross claims in these five consolidated actions. The actions seek recovery for personal injuries, wrongful death, and/or property damage arising out of a January 2, 1992 explosion and fire stemming from a leak in an underground gas line maintained by Rochester Gas & Electric Corporation, a defendant in three of the actions. It is not disputed that the leak in the gas line was caused by the erosion of the soil beneath it, which was caused in turn by leakage from a nearby storm drain pipe.

Supreme Court properly denied the County's motion for summary judgment. The County failed to establish, as a matter of law, that it had no responsibility for the section of the storm drain involved in the accident. Indeed, it appears from the record that the County was involved, by itself or jointly with the State of New York, in designing and maintaining that section of drain pipe. Thus, the County did not sustain its burden on the motion of establishing its entitlement to judgment as a matter of law (see, CPLR 3212 [b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Order unanimously affirmed with costs.

MEMORANDUM:

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