STATE v. CITY OF YONKERS (2006)

In an action pursuant to ECL 71-1929, inter alia, to enjoin the defendant from discharging untreated sewage into the Bronx River, the defendant appeals from an order and judgment (one paper) of the Supreme Court, Westchester County (Nicolai, J.), entered February 22, 2005, which granted the plaintiff's motion for summary judgment on its claims for injunctive relief and for severance of its claim for civil penalties, and denied its cross motion for summary judgment dismissing the complaint.

ORDERED that the order and judgment is affirmed, with costs.

 The plaintiff established its prima facie entitlement to summary judgment on its claims for injunctive relief by demonstrating that the defendant was discharging untreated sewage from 17 of its storm sewer outfall pipes into the Bronx River in violation of ECL 17-0501 and 17-0803 and that those discharges created a public nuisance (see e.g. Wheeler v. Lebanon Val. Auto Racing Corp., 303 A.D.2d 791, 755 N.Y.S.2d 763;  Matter of Howard v. Cahill, 290 A.D.2d 712, 736 N.Y.S.2d 470;  Matter of Colella v. New York State Dept. of Envtl. Conservation, 196 A.D.2d 162, 608 N.Y.S.2d 361;  Flacke v. Salem Hills Sewage Disposal Corp., 91 A.D.2d 739, 457 N.Y.S.2d 992;  Town of Hempstead v. City of New York, 88 Misc.2d 366, 388 N.Y.S.2d 78;  Catskill Mountains Chapter of Trout Unlimited v. City of New York, 244 F.Supp.2d 41, affd. in part 451 F.3d 77).   In opposition, the defendant failed to raise a triable issue of fact (see John v. Tishman Constr. Corp. of N.Y., 32 A.D.3d 458, 819 N.Y.S.2d 475;  Pastore v. Zlatniski, 122 A.D.2d 840, 841, 505 N.Y.S.2d 903;  Matter of De Roche v. Osborne, 179 Misc. 589, 592, 37 N.Y.S.2d 348;  U.S. v. City of Toledo, 867 F.Supp. 598, 602;  Public Interest Research Group of New Jersey v. Yates Industries, 757 F.Supp. 438, 447).   Therefore, the Supreme Court properly granted the plaintiff's motion.

 The defendant failed to establish its prima facie entitlement to summary judgment dismissing the complaint (see Napoli v. Ambus, Inc., 31 A.D.3d 623, 817 N.Y.S.2d 913).   Contrary to the defendant's contention, its State Pollutant Discharge Elimination System permit for stormwater discharges does not authorize it to discharge untreated sewage through its stormwater sewers (see ECL 17-0803;  17-0105[17]; 17-0509[2];  Biggane v. City of Lackawanna, 80 Misc.2d 816, 365 N.Y.S.2d 107).   Accordingly, we need not review the sufficiency of the plaintiff's opposition papers, and the Supreme Court properly denied the defendant's cross motion.

The defendant's remaining contentions are without merit.