Chi-Ming Tang v. Village of Geneseo , 757 N.Y.S.2d 188 ( 2003 )

—Appeal from an order of Supreme Court, Livingston County (Cicoria, J'.), entered January 4, 2002, which denied defendant’s motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Plaintiffs commenced this action alleging that defendant’s negligence resulted in the blockage of the sanitary sewer system owned and maintained by defendant, causing a backup of sewage in the basement of plaintiffs’ home. Supreme Court erred in denying defendant’s motion for summary judgment dismissing the complaint. Contrary to plaintiffs’ contention, the mere fact that the sanitary sewer system backed up as the result of an unknown blockage is insufficient to establish that defendant municipality was negligent as a matter of law (see Biernacki v Village of Ravina, 245 AD2d 656, 657 [1997]). “Rather, an owner must show that the municipality either affirmatively breached a duty owed or that it was actively negligent and the negligence caused the flooding” (id.; see also Linden Towers Coop. No. 4 v City of New York, 272 AD2d 587 [2000]). In support of its motion, defendant submitted the deposition testimony of the person in charge of defendant’s Streets Department stating that defendant had no record of prior complaints of sewage backup and that, based upon annual periodic line flushing conducted in the two years prior to the incident, no sewage backup problems had been detected. Defendant thereby met its initial burden on the motion, and plaintiffs failed to raise an issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Present— Green, J.P., Wisner, Scudder, Burns and Gorski, JJ.