You are here: / / Allegations that Town Was Negligent in Maintaining a Sewer System Involve...
, ,

Allegations that Town Was Negligent in Maintaining a Sewer System Involve a Proprietary Function Subject to Ordinary Rules of Negligence

The Fourth Department determined plaintiff’s causes of  action against a town alleging negligent maintenance, as opposed to design, of a sewer system properly survived summary judgment.  Maintenance is a proprietary function of the town and is subject to ordinary negligence principles:

If the municipality acted in a proprietary role, i.e., “when its activities essentially substitute for or supplement traditionally private enterprises” …, ordinary rules of negligence apply. If, however, the municipality acted in a governmental capacity, i.e., “when its acts are undertaken for the protection and safety of the public pursuant to general police powers” (id. at 425 [internal quotation marks omitted]), the court must undertake a separate inquiry to determine whether the municipality owes a special duty to the injured party … . In the event that the plaintiff fails to prove such a duty, the municipality is insulated from liability. Even in the event that the plaintiff proves such a duty, however, the municipality will not be liable if it proves that the alleged negligent act or omission involved the exercise of discretionary authority … .

With respect to municipal sewer malfunctions, it is well settled that a municipality’s design of a sewer system constitutes a governmental function …, while a municipality’s “operation, maintenance and repair of th[at] sewer system is a proprietary function, and thus the Town’s liability in that respect is not contingent upon the existence of a special relationship”… . Gilberti v Town of Spafford, 2014 NY Slip Op 03382, 4th Dept 5-9-14

 

You might also like
TRUST WHICH ALLOWED PETITIONER’S CHILDREN TO DISTRIBUTE PRINCIPAL TO PETITIONER RENDERED PETITIONER INELIGIBLE FOR MEDICAID, DESPITE CHILDREN’S REFUSAL TO MAKE A DISTRIBUTION.
No Statute of Limitations Applies to an Owner Seeking to Have an Apparent Encumbrance Struck from the Record
THE SOIL CONSERVATION AND WATERSHED BOARD’S MOTION FOR SUMMARY JUDGMENT IN THIS DROWNING CASE WAS PROPERLY DENIED, PLAINTIFF’S DECEDENT DIED AFTER GOING OVER A SUBMERGED DAM; ALTHOUGH THE BOARD WAS NOT LIABLE PURSUANT TO A CONTRACT TO MAINTAIN AND OPERATE THE DAM UNDER AN ESPINAL EXCEPTION, THERE WAS A QUESTION OF FACT WHETHER THE BOARD OWNED THE DAM (A DANGEROUS CONDITION); THE BOARD IS SEPARATE AND DISTINCT FROM THE CONSERVATION DISTRICTS; THE ASSUMPTION OF THE RISK DOCTRINE IS NOT APPLICABLE (FOURTH DEPT).
Failure to Read Defendant His Miranda Rights, After the Defendant Interrupted the Reading of the Rights by Telling the Officer He Knew His Rights, Required Suppression of the Statements
Default Finding Should Not Have Been Made Where Attorney Appeared and Asked for Adjournment
DEFENDANT DROVE ON THE RIGHT SHOULDER TO GO AROUND A VEHICLE THAT WAS TURNING AND THEN SUDDENLY CROSSED THE DOUBLE LINE AND STRUCK A MOTORCYCLIST IN THE ONCOMING LANE; THE EVIDENCE WAS NOT LEGALLY SUFFICIENT TO CONSTITUTE “RECKLESS” CONDUCT WITHIN THE MEANING OF THE MANSLAUGHTER STATUTE (FOURTH DEPT).
Supreme Court Should Have Considered the Alleged Incapacitated Person’s (AIP’s) Available Resources Before Finding the AIP Incapacitated and In Need of a Guardian
DEFENDANT-LANDLORD SHOULD NOT HAVE BEEN GRANTED SUMMARY JUDGMENT IN THIS LEAD-PAINT-INJURY CASE, DEFENDANT FAILED TO AFFIRMATIVELY DEMONSTRATE, INTER ALIA, LACK OF ACTUAL OR CONSTRUCTIVE NOTICE.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Owner of Animal Which Strays Can Be Liable in Tort for Related Motorcycle A... Sole Heir Did Not Have Standing to Bring Action for Recovery of Estate Property—No...