Davis v County of Onondaga

[*1] Davis v County of Onondaga 2005 NY Slip Op 51069(U) Decided on February 22, 2005 Supreme Court, Onondaga County Centra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 22, 2005
Supreme Court, Onondaga County

Raymond M. Davis and KATHLEEN L. REICHARD, Plaintiffs,

against

County of Onondaga, TOWN OF LYSANDER, MERLE BUILDERS, INC., JUDY L. FISHER and STEPHEN SEHNERT, Defendants.



02-4384



LEE ALCOTT, ESQ.

GREEN & SEIFTER, PLLC

Attorneys for Plaintiffs

One Lincoln Center, Suite 900

Syracuse, NY 13202

KATHLEEN M. DOUGHERTY, ESQ.

DEPUTY COUNTY ATTORNEY

Attorneys for Defendant County of Onondaga

421 Montgomery St., 10th Floor

Syracuse, NY 13202

SANDRA L. HOLIHAN, ESQ.

SUGARMAN LAW FIRM, LLP

Attorneys for Defendant Town of Lysander

360 S. Warren St., 5th Floor

Syracuse, NY 13202

MICHAEL N. LIVINGSTON, ESQ.

SASSANI & SCHENCK, P.C.

Attorneys for Defendant Merle Builders, Inc.

7767 Oswego Road

Liverpool, NY 13090

JAMES R. SULLIVAN, ESQ.

ADAIR, KAUL, MURPHY, AXELROD & SANTORO, LLP

Attorneys for Defendant Judy L. Fisher 300 Linden Oaks, Suite 220

Rochester, NY 14625

CHARLES FARRELL, ESQ.

FARRELL, FARRELL & BARNELL

Attorneys for Defendant Stephen Sehnert

P.O. Box 199

Baldwinsville, NY 13027

John V. Centra, J.

Plaintiffs commenced the above-referenced action claiming that due to Defendants' negligence, trespass, inverse condemnation, negligent misrepresentation, professional negligence and/or breach of contract, Plaintiffs' property was flooded and Plaintiffs have been damaged in the sum of more than $500,000. Defendant Town of Lysander (hereinafter "the Town") has moved for summary judgment. Plaintiffs have opposed that motion and cross-moved for summary judgment against the Town. Defendants County of Onondaga (hereinafter "the County") and Stephen Sehnert (hereinafter "Sehnert") have also brought summary judgment motions. Defendant Judy L. Fisher (hereinafter "Fisher") opposes the motions for summary judgment brought by the Town, the County and Plaintiffs [FN1]. Defendant Merle Builders, Inc. (hereinafter "Merle Builders") opposes the motions brought by the Town and the County.

MOTIONS FOR SUMMARY JUDGMENT BY AND AGAINST THE TOWN:

In the fifth cause of action in their amended complaint, Plaintiffs allege that the Town was negligent by failing to correct conditions caused by the County following notice to the Town that Plaintiffs were constructing a home on their property. Further, they contend that the Town was negligent in failing to enforce a requirement imposed by the Town upon Fisher (which was a condition of subdivision approval granted by the Town to Fisher) for the installation of a proper outlet for the water collected, diverted, channeled and discharged on to Plaintiffs' property, once the Town received notice that Plaintiffs were constructing a home on their property.

In their amended complaint, Plaintiffs allege that the County constructed and continues to maintain a water collection system which collects surface water from approximately 130 acres of land upland from Plaintiffs' property which is then directed and discharged through a culvert constructed by the County on to Plaintiffs' property. The Town argues that there is no allegation that the Town was involved in the construction or maintenance of the system or the diversion and discharge of the water through the culvert constructed by the County; there is no evidence that [*2]the Town undertook any affirmative conduct regarding the creation, construction or maintenance of the culvert or any other surface water or drainage system in the area of Plaintiffs' property; and the claims against the Town are limited to the claim that the Town failed to correct the condition caused by the County.

The Town contends that no liability can lie against it for conduct by the County. The Town states it had no duty to create or provide a drainage system for Plaintiffs. Further, the Town contends that it has immunity from liability for any claimed failure to create or provide drainage systems. The Town argues that it is not liable in tort for property damage resulting from a failure to voluntarily undertake the work to contain a natural water flow which it did not cause or divert.

Additionally, the Town maintains that municipal defendants can only be held liable in negligence for their voluntary construction, maintenance or repair of a drainage system or for actively causing water to be diverted on to private property and that there is no such allegation in this case. The Town argues that the mere fact that it required an easement for drainage as a condition of approval of the prior subdivision of Plaintiffs' property is insufficient as a matter of law to create a duty for which the Town can face liability.

In response, Plaintiffs assert that, contrary to the Town's contentions, Plaintiffs' claim is premised on the Town's failure to ensure that the conditions it placed on the subdivision approval that the Town granted to Fisher were met prior to permitting Plaintiffs to construct their home on the property. Plaintiffs point out that Robert Hornaday, a licensed professional engineer employed by Barton & Loguidice, the engineers for the Town, represented the Town during the meetings of the Lysander Town Board in 1990 at which Fisher presented her plan for subdivision approval. When questioned during his deposition concerning his knowledge of flooding on the Fisher property, Hornaday stated that the Town was aware that the culvert discharged water on to the Fisher property and that the Board instructed Sehnert, the surveyor who presented the Fisher subdivision plan for approval to the Board, that the water needed to be transitioned through the property so that it did not adversely affect the subdivision. Plaintiffs argue that Fisher failed to construct the drainage facility as required by the Town during the subdivision approval process in 1990 and that failure has prevented Fisher from gaining approval for a recent subdivision application.

Plaintiffs claim that ten years after the subdivision approval process, when Plaintiffs' builder, Merle Builders, applied for a building permit, Plaintiffs had no idea that a drainage system had been required by the Town or that Fisher had failed to construct such a system. Plaintiffs allege that the Town issued a building permit knowing that the conditions it imposed on Fisher for subdivision approval had never been fulfilled and the Town ultimately issued a certificate of occupancy for Plaintiffs' home, also knowing that.

Plaintiffs' claim against the Town is predicated on the doctrine of special duty. A special duty arises "when a special relationship exists between a municipality and an individual . . . warranting the imposition of a duty to use reasonable care for those persons' benefit". Garrett v. Holiday Inns, Inc., 58 NY2d 253, 261 (1983). This principle imposes liability "where the municipality has violated a duty commanded by a statute enacted for the special benefit of particular persons . . .; where the municipality has voluntarily assumed a duty, the proper exercise of which was justifiably relied upon by persons benefited thereby . . .; or where it assumes [*3]positive direction and control under circumstances in which a known, blatant, and dangerous safety violation exists". Id. at 261-262 (citations omitted).

Plaintiffs argue that here, the admitted acts of the Town amply satisfy the criteria for establishment of a special relationship and duty. According to Plaintiffs, the record establishes that the Town was aware of the existence of the culvert draining water on to Fisher's property during the subdivision approval process in 1990; the Town directed Fisher to construct a swale or other drainage facility; the Town failed to follow through on its directive to Fisher; ten years later, Merle Builders applied for a building permit to construct Plaintiffs' residence; the Town granted the permit, having failed to determine whether Fisher ever constructed the drainage facility required by the Town; several months later, the Town granted a certificate of occupancy, once again after failing to determine that the required drainage facility had been constructed; and, after constructing their home in 2000, Plaintiffs experienced massive flooding.

The court finds that the Town has not established its right to summary judgment. The Town has argued that the parol evidence rule bars any testimony from Hornaday. However, "[t]he parol evidence rule bars admission of any prior or contemporaneous oral agreement that may vary or add to the terms of a fully integrated, written agreement". Jiang v. Tan, 11 AD3d 373 (1st Dept 2004). There is no written agreement between these parties; thus, the parol evidence rule is inapplicable.

The Town cites the Fourth Department case of Okie v. Village of Hamburg, 196 AD2d 228 (4th Dept 1994), wherein the court ruled that a local flood damage prevention ordinance did not create a special duty owing to persons inhabiting a flood-prone area because the intent of the law was to protect the general public from flood damages, not just those located within the flood plain, and is, therefore, not a statute enacted for the special benefit of particular persons.

However, a town's Planning Board is authorized to approve subdivision plats. See Town Law §§276 and 277. "Town Law §277 provides that in approving plats, a planning board shall review such conditions as sewers and drains to ensure that the land can be used safely without danger of flooding or similar problems." M&M Partnership v. Sweenor, 210 AD2d 575, 576 (3rd Dept 1994). Further, the Town, by allegedly directing Fisher to construct a swale or other drainage facility, may have created a special duty to Plaintiffs under the circumstances at bar.

Based upon all of the above, the court finds that there is a question of fact as to whether there is a special relationship between the Town and Plaintiffs that must be determined at trial. Therefore, the court denies the motions for summary judgment brought by the Town and by Plaintiffs.

THE COUNTY'S CROSS-MOTION FOR SUMMARY JUDGMENT:

In their amended complaint, Plaintiffs contend that in March 2001, the culvert at the intersection of the County roads known as Plainville Road and Cross Lake Road in Lysander diverted the natural flow of water and snow drainage, thereby causing the drainage water to seep underground across Plaintiffs' property and cause Plaintiffs' basement to incur water damage. With respect to the County, Plaintiffs allege four causes of action: negligence, nuisance, trespass, and inverse condemnation.

As for negligence, Plaintiffs' claim is that the flooding condition was due to the County's negligent, careless and imprudent design, construction, installation and maintenance of the culvert. The nuisance cause of action is based on the past, continued and continuing diverting [*4]and discharging of water on to Plaintiffs' property by means of the culvert. The trespass is based on the diversion of water on the Plaintiffs' property by means of the culvert. The basis for the inverse condemnation claim is that the acts by the County in diverting water on to Plaintiffs' property by means of the culvert constitute a de facto taking of Plaintiffs' property.

On December 6, 1920, the County Board of Supervisors agreed to adopt the intersection at Plainville Road and Cross Lake Road into the County highway system. Prior to adoption by the County, the intersection had been a Lysander roadway since 1832. At the time of adoption into the County highway system, the intersection had been improved with a culvert. The only proof in the record is that the culvert existed at the time that the County adopted the intersection.

In 1943, the County undertook improvements to the culvert to replace existing pipe and re-grade the surface. Other than that work, no changes to the culvert have been made.

The purpose of the culvert is to direct water runoff from the higher elevations to collect and drain into the culvert, then under Plainville Road and downhill to Seneca Lake, thus preventing the water from collecting on top of the roadway and creating a hazardous traffic condition. The County contends that in maintaining the culvert, it was acting consistently with its obligations and duties to protect the safety and welfare of the traffic-going public.

The County claims that until Plaintiffs' alleged basement flooding in March 2001, there had never been any complaint made to the County of any problem with the culvert or with the direction of flow of the water runoff. In the eighty-year period between adopting the culvert and this alleged flooding incident, the County had no notice of any underground water flow beneath the property now owned by Plaintiffs. The County contends that the lack of any evidence suggesting that the County designed, built and/or constructed the culvert is fatal to Plaintiffs' claims against the County of negligence, trespass, nuisance and inverse condemnation. The County argues that if the court finds that Plaintiffs have offered proof that the County was somehow responsible for the creation of the culvert, then the lack of any evidence providing notice to the County in the eighty-year period since is fatal to Plaintiffs' claim due to a violation of the statute of limitations. In response, Plaintiffs argue that the County's motion is based upon a misstatement of the facts. While the County alleges it was not responsible for implementing or maintaining the culvert, the County admits in its own papers that it owned and maintained Plainville Road as well as the culvert at the intersection of Plainville Road and Cross Lake Road which the County adopted in 1920 from the Town. The County further admits that improvements were made to the culvert by the County in 1943 and that it periodically performs ordinary maintenance on the culvert. Additionally, the County acknowledges that at the time of the flooding it was familiar with the Fisher subdivision because a request had been submitted to the County Planning Agency several years earlier for issuance of access permits to the Fisher subdivision parcels.

Plaintiffs also argue that their causes of action against the County are not barred by the statute of limitations. Citing Sexton v. City of Rochester, Plaintiffs contend that the Appellate Division, Fourth Department, has held that the running of the statute of limitations under General Municipal Law §50-i is measured not from the time of the negligent act but from the date the negligent act produced injury to Plaintiffs and that the period of limitations for negligent maintenance does not begin to run until the happening of the accident itself. Sexton v. City of Rochester, 32 AD2d 737 (4th Dept 1969). Plaintiffs state that the failure of a municipality to [*5]maintain the public right-of-way is continuing and separate and apart from the duty to not create a dangerous condition. Thus, they posit that liability is established regardless of how the condition was created, by whom it was created, or when it was created.

Plaintiffs also contend that they were not required to provide the County with prior written notice of the defective culvert because the County created or caused the defective condition. Although questions may be raised as to the extent of the actual control exercised by the County over the design and construction of the culvert, Plaintiffs believe that these are factual questions which cannot be disposed of on a motion for summary judgment.

General Municipal Law §50-i provides that a tort action against a municipality must be commenced within one year and ninety days after the happening of the event upon which the claim is based. The alleged flooding occurred on Plaintiffs' property on March 22, 2001.

In order to be successful on a motion for summary judgment, the moving party must "establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd. [b]), and he must do so by tender of evidentiary proof in admissible form". Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067-68 (1979). The burden then shifts to the non-moving parties to lay bare their proof to show that a genuine question of fact exists. Oswald v. City of Niagara Falls, 13 AD3d 1155 (4th Dept 2004).

The County has provided proof that it did not design or construct or install the culvert. Plaintiffs have provided no proof to the contrary. Accordingly, that portion of Plaintiffs' first cause of action for negligence against the County for its design, construction and installation of the water collection system was not timely commenced and must be dismissed. See Sniper v. City of Syracuse, 139 AD2d 93 (4th Dept 1988).

Maintenance of the culvert is a continuing duty. "Liability for a breach of that continuing duty is established regardless of how the condition was created, by whom it was created, or when it was created, so long as it can be shown that the municipality had notice of the condition and that it had a reasonable period of time to correct it". Id. at 96 (emphasis added).

Plaintiffs have argued that notice is not required when the municipality created the condition. However, the court has already determined that the County has demonstrated that it did not create the condition.

In an apparent effort to circumvent that issue, Plaintiffs state that they "only need to allege in their complaint, as they have already done, that the County created or caused the defective culvert." See Plaintiffs Memorandum of Law dated November 1, 2004, p. 7. This conclusory statement is not sufficient to prove that the County created or caused the allegedly defective culvert. Because this is a summary judgment motion was brought under CPLR 3212 rather than a motion to dismiss for failure to state a cause of action under CPLR 3211, Plaintiffs must produce proof in evidentiary form to defeat it. They have failed to prove that the County created or caused the allegedly defective culvert.

The County has demonstrated, through its records, that it had no notice of any problem with the culvert, and thus, had no opportunity to correct any such problem. Plaintiffs have not brought forth any evidence that the County did have notice of any culvert problems. Therefore, that portion of the first cause of action for negligent maintenance of the culvert must be dismissed. [*6]

Plaintiffs' second cause of action alleges a continuing nuisance due to the County's past, continued, and continuing diverting and discharging of water onto Plaintiffs' property. "It is clear that before liability can be imposed on a municipality performing a governmental function there must be an affirmative act which either causes or sets in motion a chain of events leading to the injury". Goldstein v. County of Monroe, 77 AD2d 232, 235 (4th Dept 1980). The County has "demonstrated that [it] ha[s] performed no work whatever that would in any way contribute to the [Plaintiffs'] alleged damage and accordingly there can be no claim that [its] conduct was in any way negligent or that a nuisance existed because of [its] acts". Id. at 236. Thus, Plaintiffs' second cause of action is dismissed.

Plaintiffs' third cause of action alleges a continuing trespass on Plaintiffs' property. As to a cause of action for trespass, the Court of Appeals has held that "while the trespasser, to be liable, need not intend or expect the damaging consequences of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfulness." Phillips v. Sun Oil Co., 307 NY 328, 331 (1954). In this case, the County has demonstrated that it did not willfully produce any unlawful invasion. Plaintiffs have failed to show that the County's alleged intrusion was done willfully or so negligently as to amount to willfulness. Accordingly, the third cause of action is dismissed. See Ivancic v. Olmstead, 66 NY2d 349, 352 (1985), cert. denied 476 U.S. 1117 (1986); Kulpa v. Stewart's Ice Cream, 144 AD2d 205 (3rd Dept 1988).

Plaintiffs' fourth cause of action seeks damages for an inverse condemnation and a de facto taking. In order to be successful in a cause of action for inverse condemnation or de facto taking, a plaintiff must make a "showing that the government has intruded onto the citizen's property and interfered with the owner's property rights to such a degree that the conduct amounts to a constitutional taking requiring the government to purchase the property from the owner". (O'Brien v. City of Syracuse, 54 NY2d 353, 357 (1981). A municipality is not liable for failure "to restrain waters between banks of a stream or to keep a channel free from obstructions it did not cause. . . . Thus absent any special duty owed by the County of Onondaga to plaintiffs, it cannot be held liable for failing to provide adequate flood protection to plaintiffs." Office Park Corp. v. County of Onondaga, 64 AD2d 252, 258 (4th Dept 1978).

In this case, the County has stated that it did not owe Plaintiffs any special duty. Plaintiffs have not shown any special duty owed by the County to them. Accordingly, the fourth cause of action is dismissed.

SEHNERT'S MOTION FOR SUMMARY JUDGMENT:

Sehnert is a licensed land surveyor who was hired by Fisher to do a three-lot subdivision on the subject property. He was later hired by Merle Builders to locate Plaintiffs' proposed house on the lot. Plaintiffs allege in their amended complaint that Sehnert breached his duty to Plaintiffs by locating their home in an area of their property which was below the ten-year flood elevation and below the hundred-year flood elevation. Sehnert has moved for summary judgment dismissing Plaintiffs' cause of action against him. Sehnert states that he checked for the hundred-year flood elevations. In response to this motion, Plaintiffs have submitted an affidavit from their expert, a professional engineer, Joel Plumley, P.E., who opines that Plaintiffs' [*7]residence is located either in or very close to the flood plain. He states that none of the elevations is above the one-hundred year flood level of 380.25 feet as he interprets it, or above 380.5 feet (the level interpreted by another of Plaintiffs' experts). Based on Plumley's review of the Town's flood study and maps, he opines that the flood level would be between two and four and one-half feet above the level of Plaintiffs' basement floor. Plumley states that he would not have located Plaintiffs' residence within or close to a flood plain and in such a manner so as to have placed the basement level of the residence below the one-hundred year flood elevation. The court finds that, with Plumley's affidavit, Plaintiffs have raised a question of fact. Therefore, the court denies Sehnert's motion for summary judgment.

The motions by the Town, Plaintiffs and Sehnert are denied. The motion by the County is granted. Plaintiffs and the County are each to submit an Order on notice.

JOHN V. CENTRA

Supreme Court Justice

Dated: February 22, 2005

Syracuse, New York Footnotes

Footnote 1:Fisher's attorney states in his affidavit that he is addressing Plaintiffs' motion for summary judgment against Fisher. However, Plaintiffs have only moved for summary judgment against the Town. See Footnote 1, Plaintiffs' Memorandum of Law.