Baker v City of Plattsburgh

[*1] Baker v City of Plattsburgh 2006 NY Slip Op 52658(U) [21 Misc 3d 1123(A)] Decided on July 25, 2006 Supreme Court, Clinton County Dawson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 25, 2006
Supreme Court, Clinton County

Steven J. Baker, Plaintiff,

against

City of Plattsburgh, Clyde Rabideau, individually and in his official capacity as Mayor of the City of Plattsburgh, and George Miller, individually and in his official capacity as City Engineer of the City of Plattsburgh, , Defendants



38003



Livingston L. Hatch, Plattsburgh, for Plaintiff.

Dinse, Knapp & McAndrew, P.C., Burlington, Vermont (April E. Schwendler and Shapleigh Smith, Jr. of counsel), for Defendants and Third-Party Plaintiffs City of Plattsburgh, Clyde Rabideau and George Miller.

Donohue, Sabo, Varley & Armstrong, P.C., Albany (Kenneth G. Varley of counsel), for Defendant and Third-Party Defendant Robert M. Sutherland, Inc.

James P. Dawson, J.

The Court is asked to resolve motions by the Defendants City of Plattsburgh, Clyde Rabideau and George Miller (hereinafter the Plattsburgh Defendants) and by the Defendant Robert M. Sutherland, Inc. for summary judgment. The Plaintiff owns real property on Durkee Street in the City of Plattsburgh, Clinton County. In 1996 and 1997, various work was done on or near Durkee Street, with the water and sewer lines being replaced, new underground electrical lines being placed under the street and under a parcel owned by the Defendant New York State Electric & Gas (NYSEG) adjacent to the Plaintiff's property, repaving and elevating of a parking lot adjacent to the Plaintiff's property and reconstruction of the street itself. The Plaintiff alleges that the work changed the grade of the parking lot, street and NYSEG parcel, causing water to run onto his property and damage his residence and forcing him to use a new driveway into his property. He commenced this action in 1999. The Plaintiff alleges that the Plattsburgh Defendants violated his due process rights by directing that the work continue when they knew that the work on the street and parking lot would cause damage to the Plaintiff's property (first cause of action). The Plaintiff also asserts that the Plattsburgh Defendants' work and that of their contractors caused substantial damage to the Plaintiff's property due to water runoff and that it represents a de facto taking (second cause of action). The Plaintiff also argues that the Plattsburgh Defendants and their contractors damaged his water supply, partially filled his property, placed equipment in his driveway and caused water to flow onto his property and made a continuing trespass (third cause of action), did the work in a negligent fashion by causing the runoff (fourth cause of action), created a nuisance by causing the runoff (fifth cause of action), and violated several zoning ordinances (sixth cause of action). The Plattsburgh Defendants commenced a third-party action for contribution and indemnification against their contractors, Luck Brothers, Sutherland and Carter's Trucking and Blacktopping.

Sutherland now moves for summary judgment on the complaint and third-party complaint, arguing that the Plattsburgh Defendants and it are not liable to the Plaintiff and that, even if the Plattsburgh Defendants are, it is not liable to them for contribution and indemnification. It argues that, even if the Plaintiff is correct in arguing that the work caused water to flow onto his property, the Plattsburgh Defendants are not liable due to the rule that a landowner is generally not liable for damages caused by water flowing onto an adjacent parcel because of improvements. Sutherland also argues that the Plaintiff cannot recover damages for changes in the way his parcel is entered unless damages are incurred as a direct result of a change of grade in the driveway. Sutherland also disputes the Plaintiff's ability to prove damages given that the Plaintiff has not retained an expert to testify on damages and, regardless, the proof is that the value of his parcel has increased. Sutherland lastly argues that, even if a question of fact exists as to the Plattsburgh Defendants' liability, Sutherland was retained only to design the improvement project and, as there is no indication that the design was defective, they are not entitled to recover from Sutherland. The Plattsburgh Defendants cross-move for summary judgment on the same grounds, but argue that Sutherland should remain as a third-party defendant if the complaint is not dismissed given questions as to whether the design was defective. The Plattsburgh Defendants also argue that no expert will be needed to demonstrate the applicable standard of care in a negligent design cause of action against Sutherland as the claims can be evaluated by lay persons without the need of expert testimony and that, regardless, Sutherland potentially violated the Plattsburgh Zoning Code requirement that there be proper drainage and [*2]harmonious relationships between structures and land.

The Plaintiff opposes the motion and cross-motion, although he concedes that he has no cause of action against Sutherland directly. The Plaintiff points out that the Defendants make no effort to address many of the issues raised in the complaint, including the issue of whether the water constitutes a de facto taking. The Plaintiff points to the absence of any expert evidence from the Defendants to show that the parking lot was properly constructed. The Plaintiff argues that, in any case, his opposition raises a question of fact, pointing to his expert's unsworn report stating that the Defendants' construction extends onto the Plaintiff's property, that the construction detracts from the appearance of the property, that water from the parking lot and street drain onto the property, that the new driveway prevents "maximum access" to the property, and that light from the parking lot shines into the windows of the Plaintiff's house due to the parking lot's increased elevation. The Defendants reply and dispute the relevance of much of the Plaintiff's opposition. Both the Plaintiff and the moving parties complain of the others' timeliness in responding to the motions, but given the brief time allowed for making the motions and evident confusion as to the Plaintiff's counsel's address, the Court will consider both the Plaintiff's opposition and the Defendants' reply papers.

The motions are granted. The rule applicable to actions claiming damages resulting from water runoff is that "[a] landowner in this State will not be liable for damages to abutting property for the flow of surface water resulting from improvements to his land provided . . . that the improvements are made in good faith to fit the property to some rational use to which it is adapted, and that the water is not drained into the other property by means of pipes or ditches'" (Cottrell v Hermon, 170 AD2d 910, 910 [1991], lv denied 78 NY2d 853 [1991], quoting Kossoff v Rathgeb-Walsh, Inc., 3 NY2d 583, 589-590 [1958]). As a result, a plaintiff who wishes to succeed on such a claim must show "that the improvements on the defendant's land caused the surface water to be diverted, that damages resulted and either that artificial means were used to effect the diversion or that the improvements were not made in a good faith effort to enhance the usefulness of the defendant's property" (Cottrell v Hermon, supra at 911 [emphasis added]). The fact that much of the property here is either owned or leased by, and the work was done for, a municipal corporation does not alter the applicability of this rule (see Musumeci v State of New York, 43 AD2d 288, 292 [1974], lvs denied 34 NY2d 516, 517 [1974]).

Here, there is some question as to how much runoff, if any, has been diverted onto the Plaintiff's property. Civil engineer Robert Sutherland, Sutherland's president, opines that the street and parking lot as designed slope away from the Plaintiff's property and prevent runoff onto his property and that the NYSEG property was not regraded and the Defendant George Miller stated that no drainage patterns were created that flowed onto private property, but others such as the Plaintiff stated that runoff had increased and the Plaintiff's engineer states in his report that portions of the parking lot and street drain onto the Plaintiff's property. Assuming that there was increased runoff, that leads to the second part of the inquiry was the increased runoff artificially diverted or were the improvements on the adjoining property not made in good faith? Robert Sutherland states that the design of the improvements did not artificially channel water onto the Plaintiff's property, and that assertion is supported by Miller's statement that no drainage patterns onto private property were created. As for the good faith question, Robert Sutherland opines that the work was "legitimately undertaken," as it not only was intended to, but did, improve the surface of the street and parking lot, improve the underground utilities, and improve the drainage of the parking lot. [*3]

This is enough to shift the burden to the Plaintiff to raise a material question of fact. The Plaintiff concedes that he has no claim directly against Sutherland, and the complaint against it is dismissed. As for the Plattsburgh Defendants, the Plaintiff provides nothing to suggest that the water runoff was artificially channeled onto his property or that the improvements were not made in good faith. As a result, the Plattsburgh Defendants are not liable for the water runoff, and the complaint must be dismissed insofar as it deals with that issue.

What the Plaintiff does correctly question is how much of the complaint deals with runoff. The fourth and fifth causes of action, as well as most of the third cause of action, all are clearly tort claims dealing with the water runoff issue, and they are dismissed.[FN1] The second cause of action also deals with the water issue but states a de facto taking claim based on the City of Plattsburgh's eminent domain power instead of tort (see Stewart v State of New York, 248 AD2d 761, 761-762 [1998]). Although it is not a trespass claim, a de facto taking claim is essentially "an aggravated form of trespass," as it relies on the same evidence as a trespass cause of action and is distinct because of "the egregiousness of the trespass and whether it is of such intensity as to amount to a taking" (O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). Sutherland and the Plattsburgh Defendants appear to argue their liability under the trespass and other tort claims and not the de facto taking claim, but if their actions do not constitute a trespass, they certainly do not rise to the level of a de facto taking. Another way of saying it would be that a de facto taking requires the showing that property rights have been interfered with, but a property owner has no right to expect that a neighbor will not make improvements to his or her property even though the end result is that water is diverted onto the property owner's parcel if, as here, the improvements did not artificially channel the water and were made in good faith (see id. at 357; Heins Implement Co. v Missouri Highway & Transp. Commn., 859 SW2d 681, 686 n6 [Mo 1993]). Given the circumstances of this case, the second cause of action is dismissed.

Other portions of the complaint do not deal with the water runoff issue, however. The motions do not address the first cause of action.[FN2] A portion of the third cause of action asserts that [*4]the Defendants trespassed onto the Plaintiff's property in other ways, such as by filling a portion of his parcel when they were working on the parking lot, damaging his water line and obstructing his driveway and, as those issues are not raised in the summary judgment motion, that part of the trespass claim survives. The sixth cause of action alleges that the Defendants violated various zoning ordinances, and none of the parties demonstrate what those ordinances deal with (although the bill of particulars indicates they deal with issues other than water runoff), how they were violated, or how a violation is related to the Plaintiff's alleged damages. As such, the first and sixth, and part of the third, causes of action remain for trial.

The remaining question is whether the third-party complaint should be dismissed as against Sutherland. The contract between Sutherland and the City of Plattsburgh states that Sutherland will "[b]e responsible for any damages arising from any defects in design." Robert Sutherland submits a factually specific affidavit stating that the project was properly designed, but recites facts almost entirely related to the water runoff. None of the Defendants discuss the first and sixth causes of action or part of the third cause of action. Without a showing that the design work was unrelated to those claims, the Court concludes that Sutherland has not met its burden of making out a prima facie case for summary judgment on the third-party complaint.

Ordered that the Defendant Robert M. Sutherland, Inc.'s motion for summary judgment is granted in part, and the complaint is dismissed; and it is further

Ordered that the Defendants City of Plattsburgh, Clyde Rabideau, and George Miller's motion for summary judgment is granted in part, and the second, fourth and fifth causes of action, as well as part of the third cause of action, are dismissed. Any relief requested which is not specifically granted herein is denied, and no motion costs are awarded to any party.

The original of this Decision and Order, together with the papers supplied, are returned to the Defendant Robert M. Sutherland, Inc.'s attorneys for filing and service with notice of entry. Those papers consist of the following: notice of motion dated June 27, 2006; affidavit of Robert M. Sutherland, sworn to June 16, 2006, with exhibits; affirmation of Kenneth G. Varley dated June 26, 2006, with exhibits; notice of cross-motion dated June 29, 2006; affirmation of April E. Schwendler dated June 29, 2006, with exhibits; affirmation of Livingston L. Hatch dated July 7, 2006; affidavit of Steven J. Baker, sworn to July 7, 2006, with exhibits; affirmation of Kenneth G. Varley dated July 10, 2006, with exhibits; affirmation of Shapleigh Smith, Jr. dated July 10, 2006, with exhibits.

Decided:July 25, 2006__________________________________________

James P. Dawson, JSC

Enter: Footnotes

Footnote 1: To the extent the third cause of action seeks to recover for the Defendants' altering the Plaintiff's access to the street, the Court agrees with Sutherland and the Plattsburgh Defendants that the Plaintiff may not recover for a diminution of his property's value as a result of that change, although they may be liable for damages caused by a change in the grade of that access to the street (see Selig v State of New York, 10 NY2d 34, 39 [1961]). The Court takes no position on the different question of whether the change so impaired the Plaintiff's access that his property can no longer continue its best use (see La Briola v State of New York, 36 NY2d 328, 332 [1975]).

Footnote 2: The Plaintiff argues in the first cause of action that the Defendants somehow deprived him of a property interest as to violate his due process rights by continuing with construction even though they were aware that his property would be damaged by such. The complained of construction did not occur on property owned by the Plaintiff, and it is unclear what property interest he would have in that property that would require the Plattsburgh Defendants to afford him any sort of hearing on the construction (see Matter of 475 Ninth Ave. Assoc. v Bloomberg, 2 Misc 3d 597, 604 [Sup Ct 2003]). The Court is skeptical that the first cause of action will succeed, but given the lack of a motion attacking it, it will not be dismissed.