## Facts

- Warshaw Construction Corporation contracted with the New York City Transit Authority, acting in connection with a City subway-entrance project, to construct a new subway entrance in Manhattan.
- The work required Warshaw to suspend a water main so excavation could proceed beneath it.
- The water main broke during the construction activity, causing flooding that damaged nearby properties, including premises owned or occupied by Dobess Realty Corp. and other plaintiffs.
- Plaintiffs sued Warshaw, the Transit Authority, and the City of New York for property damage; several actions were consolidated for a joint trial.
- At the close of the proof but before the case was submitted to the jury, Supreme Court dismissed all claims against the City.
- The jury returned a verdict for Warshaw and the Transit Authority.
- Plaintiffs moved under CPLR 4404 to set aside the verdict; Supreme Court granted the motion and directed judgment for plaintiffs against Warshaw and the Transit Authority, and granted the Transit Authority judgment over against Warshaw on its cross-claims.
- A judgment dated April 11, 1979 vacated the defense verdict and directed judgment against Warshaw and the Transit Authority, and awarded the Transit Authority relief over against Warshaw; it referred in its recitals to the earlier dismissal of the City, but did not include a decretal (ordering) paragraph dismissing the claims against the City.
- Plaintiffs appealed seeking review of the dismissal of their claims against the City; the City and Warshaw argued the appeal was untimely and, alternatively, that dismissal was correct.

## Issues

1. Whether plaintiffs’ appeal from the dismissal of the City was timely when the April 11, 1979 judgment mentioned the City’s dismissal only in recitals and did not contain a decretal provision dismissing the claims against the City.
2. Whether the City could be held liable for flood damage caused by a water-main break occurring during subway-entrance construction performed by a contractor under the Transit Authority’s project arrangements, absent proof of City negligence or a valid basis for imputing the contractor’s conduct to the City.

## Decision

- The Appellate Division held the appeal was timely because the April 11, 1979 judgment did not, in its decretal provisions, finally dispose of plaintiffs’ claims against the City.
- The court nonetheless affirmed the dismissal of the claims against the City on the merits.
- The court concluded that the proof did not establish direct negligence by the City or a sufficient legal basis to hold the City responsible for the construction-related conduct that led to the break.

## Legal Principles

- The time to appeal runs from service of notice of entry of an order or judgment that, by its operative decretal provisions, finally determines the party’s rights; recitals or narrative references to a dismissal do not substitute for an ordering paragraph that disposes of the claims.
- A municipality’s ownership of public infrastructure, without more, does not make it liable for damage occurring during construction affecting that infrastructure.
- Absent proof that the municipality itself was negligent (for example, in a duty it retained) or that a recognized form of vicarious responsibility applies, the municipality is not liable for the operational negligence of a contractor performing the work that immediately caused the damage.

## Conclusion

The First Department allowed plaintiffs to pursue appellate review because the April 11, 1979 judgment did not include a decretal dismissal of the City, but it affirmed dismissal after reaching the merits, holding that the record did not show City negligence or a legally sufficient basis to charge the City with responsibility for the contractor-related conduct that caused the water-main break and flooding.


Dobess Realty Corp. v. City of New York, 79 A.D.2d 348, 436 N.Y.S.2d 296 (1981)