Opinion
529718
11-25-2020
STEVENS & THOMPSON PAPER COMPANY INC., Appellant, v. MIDDLE FALLS FIRE DEPARTMENT, INC., et al., Respondents, et al., Defendants. (And Another Related Action.)
Whiteman Osterman & Hanna LLP, Albany (William S. Nolan of counsel), for appellant. Taddeo & Shahan, LLP, Syracuse (Steven C. Shahan of counsel), for Middle Falls Fire Department, Inc. and another, respondents. Morris Duffy Alonso & Faley, New York City (Iryna S. Krauchanka of counsel), for Village of Greenwich, respondent. Burke, Scolamiero & Hurd, LLP, Albany (Steven V. DeBraccio of counsel), for Bullrushes, Ltd., respondent.
Whiteman Osterman & Hanna LLP, Albany (William S. Nolan of counsel), for appellant.
Taddeo & Shahan, LLP, Syracuse (Steven C. Shahan of counsel), for Middle Falls Fire Department, Inc. and another, respondents.
Morris Duffy Alonso & Faley, New York City (Iryna S. Krauchanka of counsel), for Village of Greenwich, respondent.
Burke, Scolamiero & Hurd, LLP, Albany (Steven V. DeBraccio of counsel), for Bullrushes, Ltd., respondent.
Before: Garry, P.J., Lynch, Clark, Devine and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Devine, J. Appeal from an order of the Supreme Court (Auffredou, J.), entered June 28, 2019 in Washington County, which, among other things, granted motions by defendants Middle Falls Fire Department, Inc., Village of Greenwich, Town of Greenwich and Bullrushes, Ltd. for summary judgment dismissing the amended complaint against them.
In the early morning hours of April 6, 2014, a large fire with the hallmarks of arson broke out at a vacant paper mill in the Town of Greenwich, Washington County. Plaintiff previously owned the paper mill and still owned an adjacent hydroelectric facility (hereinafter the facility) that relied upon water from an intake canal branching off from the Battenkill River. Defendant Middle Falls Fire Department, Inc. (hereinafter MFFD) responded to the fire and mutual aid was summoned from, among others, defendant Village of Greenwich. As there were no fire hydrants to supply the firefighters with water, Village firefighters stationed a fire engine near the facility to pump water from the intake canal. The pump was in continuous operation so that firefighters would have water whenever needed and, when the water was not needed, a deck gun on the engine shot the water into a ravine where it would flow back into the Battenkill River. The stream of water from the deck gun passed over the facility, however, and caused what was essentially rainfall over its powerhouse. The facility's uninterrupted power supply shut down when water seeped into the powerhouse – prompting complaints to firefighters regarding the water discharge from the deck gun – and the facility was later found to have sustained significant mechanical damage that forced it offline for a prolonged period.
Plaintiff commenced this action to recover for its damages, alleging negligence, nuisance and trespass on the part of MFFD, the Village and defendant Town of Greenwich (hereinafter collectively referred to as the fire department defendants) related to the water discharge on its property. An additional negligence claim was asserted against defendant Bullrushes, Ltd., the owner of the paper mill, for its alleged failure to address the risk of a fire being started by trespassers who were known to enter onto its property. Following joinder of issue and discovery, the Town and MFFD, the Village, and Bullrushes separately moved for, as is relevant here, summary judgment dismissing the amended complaint. Plaintiff moved for partial summary judgment on the issue of liability. Supreme Court granted those defendants' motions insofar as they sought summary judgment dismissing the amended complaint and denied plaintiff's motion. Plaintiff appeals.
The fire department defendants also sought summary judgment dismissing a related subrogation action, an aspect of their motions that was denied and is not at issue.
We affirm. To address the claims against the fire department defendants first, even accepting that questions of fact exist as to whether they had a special relationship with plaintiff that would give rise to a claim for negligence (see e.g. Feeney v. County of Delaware, 150 A.D.3d 1355, 1357–1358 , 55 N.Y.S.3d 737[2017] ; Trimble v. City of Albany, 144 A.D.3d 1484, 1485–1486, 42 N.Y.S.3d 432 [2016] ), they are nevertheless protected by the governmental immunity doctrine, which "shield[s] public entities from liability for discretionary actions taken during the performance of governmental functions" ( Valdez v. City of New York, 18 N.Y.3d 69, 76, 936 N.Y.S.2d 587, 960 N.E.2d 356 [2011] ; see McLean v. City of New York, 12 N.Y.3d 194, 202, 878 N.Y.S.2d 238, 905 N.E.2d 1167 [2009] ; Lauer v. City of New York, 95 N.Y.2d 95, 99, 711 N.Y.S.2d 112, 733 N.E.2d 184 [2000] ). Under the doctrine, "[g]overnment action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general" ( McLean v. City of New York, 12 N.Y.3d at 203, 878 N.Y.S.2d 238, 905 N.E.2d 1167 ; accord Valdez v. City of New York, 18 N.Y.3d at 76–77, 936 N.Y.S.2d 587, 960 N.E.2d 356 ; see Normanskill Cr., LLC v. Town of Bethlehem, 160 A.D.3d 1249, 1250, 74 N.Y.S.3d 813 [2018] ; DiMeo v. Rotterdam Emergency Med. Servs., Inc. , 110 A.D.3d 1423, 1424, 974 N.Y.S.2d 178 [2013], lv denied 22 N.Y.3d 864, 2014 WL 1281739 [2014] ). There is no question that fire protection, and obtaining the water necessary to provide it, is a purely governmental function (see Scozzafava v. State of New York, 174 A.D.3d 1109, 1110, 105 N.Y.S.3d 170 [2019] ; Szydlowski v. Town of Bethlehem, 162 A.D.3d 1188, 1189, 78 N.Y.S.3d 454 [2018] ; Trimble v. City of Albany, 144 A.D.3d at 1485, 42 N.Y.S.3d 432 ; Drever v. State of New York, 134 A.D.3d 19, 21–22, 18 N.Y.S.3d 207 [2015] ). The key issue is therefore whether the fire department defendants' purportedly negligent acts – choosing to use the deck gun and aim it in a direction that caused a rain to fall around the powerhouse – were discretionary in that they arose from "the exercise of reasoned judgment which could typically produce different acceptable results" ( Tango v. Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, 459 N.E.2d 182 [1983] ; accord Haddock v. City of New York, 75 N.Y.2d 478, 484, 554 N.Y.S.2d 439, 553 N.E.2d 987 [1990] ; see Valdez v. City of New York, 18 N.Y.3d at 79–80, 936 N.Y.S.2d 587, 960 N.E.2d 356 ; cf. Trimble v. City of Albany, 144 A.D.3d at 1487, 42 N.Y.S.3d 432 ).
We note that these principles are applicable regardless of whether fire protection is afforded by a municipal corporation or by a private not-for-profit corporation under the municipality's control (see Helman v. County of Warren, 114 A.D.2d 573, 573–574, 494 N.Y.S.2d 188 [1985] ).
Bearing those principles in mind, the Village firefighters tasked with obtaining water for the paper mill fire explained that they selected the pumping site because of its ready access to the intake canal and used the deck gun to discharge unneeded water so that the pump could continuously operate and supply water to the paper mill at a moment's notice. They chose to aim the deck gun so that the stream of water would arc over the facility and land in a ravine where it would drain into the Battenkill River, a choice reflecting their training to consider the safety of themselves and the public, as well as the potential for property damage, in using the deck gun. It was further explained why the consideration of those factors led the Village firefighters to aim the deck gun as they did, as they did not know where the water would fall if aimed in some directions and saw that it would imperil their own safety or the ability to use local roads if aimed in others. Moreover, although the selected direction of the deck gun caused a rain or mist to fall upon the powerhouse when it was in use, the firefighters had no reason to anticipate that this would affect the interior of the powerhouse. A surveillance video of the area shows wet ground, but no flooding, and it appears that water that drained into an outdoor catch basin as designed then seeped into the powerhouse through a masonry joint. Further, although one could reasonably question the efficacy of the firefighters' efforts to reorient the deck gun once they learned of that problem, the efficacy of those efforts are irrelevant given that their activities caused no further seepage into the powerhouse. Plaintiff complains that alternatives to using the deck gun were not considered and that the potential hazards of its use were overlooked, but "[a] fire department is not chargeable with negligence for failure to exercise perfect judgment in discharging the governmental function of fighting fires" ( Harland Enters. v. Commander Oil Corp., 64 N.Y.2d 708, 709, 485 N.Y.S.2d 733, 475 N.E.2d 104 [1984] ; see Kenavan v. City of New York, 70 N.Y.2d 558, 569–570, 523 N.Y.S.2d 60, 517 N.E.2d 872 [1987] ; Helman v. County of Warren, 114 A.D.2d 573, 573–574, 494 N.Y.S.2d 188 [1985] ). Even when viewed in the light most favorable to plaintiff as the nonmoving party (see Lau v. Margaret E. Pescatore Parking, Inc., 30 N.Y.3d 1025, 1027, 68 N.Y.S.3d 405, 90 N.E.3d 1276 [2017] ), the foregoing demonstrates that the decisions relating to the deck gun resulted from the exercise of reasoned judgment that, as a result, rendered the fire department defendants immune from liability for ordinary negligence (see Rodriguez v. City of New York, 189 A.D.2d 166, 175–176, 595 N.Y.S.2d 421 [1993] ; Helman v. County of Warren, 114 A.D.2d at 573–574, 494 N.Y.S.2d 188 ).
Plaintiff's employee testified that he baled out the catch basin and that no more water seeped through the masonry joint after he complained about the problem. Subsequent water infiltration from the intake canal occurred because a power outage – resulting either from the initial water infiltration or the employee's actions in restarting the uninterrupted power supply after it had gotten wet – caused equipment to go out of alignment and damage a seal.
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The fire department defendants were also properly granted summary judgment dismissing plaintiff's remaining claims. First, although plaintiff asserts that the fire department defendants are liable for private nuisance due to their intentional interference with the use of its property, the record is clear that the injurious water infiltration at the powerhouse was initially unknown to the fire department defendants and ended soon after they learned of it. There was accordingly no showing of intent, which would require that the fire department defendants either deliberately impaired plaintiff's use and enjoyment of its land or knew that their actions would, or were substantially certain to, cause that result (see Copart Indus. v. Consolidated Edison Co. of N.Y. , 41 N.Y.2d 564, 571, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977] ; Christenson v. Gutman, 249 A.D.2d 805, 807–808, 671 N.Y.S.2d 835 [1998] ). Plaintiff's nuisance claim would more properly be viewed as one based upon the purportedly negligent use of the deck gun, but "[a] nuisance, either public or private, based on negligence and whether characterized as either negligence or nuisance, is but a single wrong, and whenever a nuisance has its origin in negligence, negligence must be proven" ( Copart Indus. v. Consolidated Edison Co. of N.Y. , 41 N.Y.2d at 569, 394 N.Y.S.2d 169, 362 N.E.2d 968 [internal quotation marks and citations omitted]; see Chenango, Inc. v. County of Chenango, 256 A.D.2d 793, 794, 681 N.Y.S.2d 640 [1998] ). As noted above, the fire department defendants cannot be held liable for negligence and they cannot, by extension, be held liable for nuisance arising from the same conduct (see Murphy v. Both, 84 A.D.3d 761, 763, 922 N.Y.S.2d 483 [2011] ; Hahn v. City of Rensselaer, 166 A.D.2d 795, 796, 563 N.Y.S.2d 155 [1990] ).
As for plaintiff's trespass claim against the fire department defendants, firefighters "acting lawfully in the furtherance of their duty are excused from what may be otherwise trespassory acts" ( Hand v. Stray Haven Humane Socy. & S.P.C.A., Inc. , 21 A.D.3d 626, 628, 799 N.Y.S.2d 628 [2005] ; see People v. Czerminski, 94 A.D.2d 957, 957, 464 N.Y.S.2d 83 [1983] ; 2006 Ops. Atty. Gen. No. 2006–4). Although the use of the deck gun in a manner that caused water to fall upon plaintiff's property constituted a trespassory act (see e.g. Dellaportas v. County of Putnam, 240 A.D.2d 358, 359, 658 N.Y.S.2d 116 [1997] ), that act was indisputably done in furtherance of the fire department defendants' firefighting duties. Plaintiff did not come forward with any proof to suggest that the fire department defendants' acts were unrelated to that purpose and, as such, summary judgment dismissing plaintiff's trespass claim was justified.
Finally, Supreme Court properly granted Bullrushes' motion for summary judgment dismissing the negligence claim against it. Bullrushes owed plaintiff, its neighbor, a "duty to exercise reasonable care in the maintenance of its property to prevent foreseeable injury" ( Brown v. Long Is. R.R. Co., 32 A.D.3d 813, 813, 821 N.Y.S.2d 133 [2006] ; see Amica Mut. Ins. Co. v. Town of Vestal, 191 A.D.2d 916, 917, 594 N.Y.S.2d 918 [1993] ; Ivancic v. Olmstead, 112 A.D.2d 508, 508–509, 490 N.Y.S.2d 914 [1985], affd 66 N.Y.2d 349, 497 N.Y.S.2d 326, 488 N.E.2d 72 [1985] ) and foreseeability, in the context of third-party criminality, "depends on the location, nature and extent of the previous criminal activities and their similarity, proximity or other relationship to the crime in question" ( New York Cent. Mut. Fire Ins. Co. v. City of Albany, 247 A.D.2d 815, 816, 669 N.Y.S.2d 450 [1998] ; see Maheshwari v. City of New York, 2 N.Y.3d 288, 294, 778 N.Y.S.2d 442, 810 N.E.2d 894 [2004] ; Jacqueline S. v. City of New York, 81 N.Y.2d 288, 294–295, 598 N.Y.S.2d 160, 614 N.E.2d 723 [1993] ; Haire v. Bonelli, 107 A.D.3d 1204, 1205, 967 N.Y.S.2d 475 [2013], lv denied 22 N.Y.3d 852, 2013 WL 5614389 [2013] ). Bullrushes had reason to know that one or more trespassers had entered onto its property over the years, but there was no prior history or other reason to suspect that arson was a risk. It follows that "[t]he intervening criminal act of arson was not a natural, reasonable foreseeable consequence of" Bullrushes' allegedly lackluster efforts to secure its property ( East Ramapo Cent. School Dist. v. Orangetown–Monsey Hebrew School, 141 A.D.2d 693, 693, 529 N.Y.S.2d 576 [1988] ; see Marr v. Seventh Day Adventist Church, 29 A.D.3d 959, 961, 815 N.Y.S.2d 715 [2006], lv denied 7 N.Y.3d 715, 826 N.Y.S.2d 180, 859 N.E.2d 920 [2006] ; compare Associated Mut. Ins. Coop. v. 198, LLC, 78 A.D.3d 597, 597, 914 N.Y.S.2d 7 [2010] ; New York Cent. Mut. Fire Ins. Co. v. City of Albany, 247 A.D.2d at 816–817, 669 N.Y.S.2d 450 ). In any event, even if Bullrushes could have foreseen the possibility of arson, its failure to guard against that risk was not a substantial factor in causing water to seep into the powerhouse, as that seepage stemmed from the "independent" and "far removed" acts of the fire department defendants in choosing to operate the deck gun as they did ( Derdiarian v. Felix Contr. Corp. , 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ; see Strnad v. Garvin, 64 A.D.3d 1230, 1230, 882 N.Y.S.2d 633 [2009], affd 13 N.Y.3d 851, 891 N.Y.S.2d 686, 920 N.E.2d 90 [2009] ; Amica Mut. Ins. Co. v. Town of Vestal, 191 A.D.2d at 917, 594 N.Y.S.2d 918 ). Thus, Bullrushes was entitled to summary judgment.
ORDERED that the order is affirmed, without costs.
Garry, P.J., Lynch, Clark and Reynolds Fitzgerald, JJ., concur.