Stone v Town of Clarkstown

[*1] Stone v Town of Clarkstown 2010 NY Slip Op 50965(U) [27 Misc 3d 1229(A)] Decided on May 19, 2010 Supreme Court, Rockland County Weiner, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 19, 2010
Supreme Court, Rockland County

Mead Stone and OLGA STONE, Plaintiffs,

against

The Town of Clarkstown, UNITED WATER NEW YORK, INC. and LEONARD JACKSON ASSOCIATES, Defendants.



5368/08



To:

Dorfman, Knoebel, Conway & Fury, LLP

Attorneys for Plaintiff

MacCartney, MacCartney, Kerrigan & McCartney

Attorneys for Defendant Town of Clarkstown

Bivona & Cohen, P.C.

Attorneys for Defendant United Water New York, Inc.

Alfred J. Weiner, J.

Upon the foregoing papers, it is ORDERED that this application is disposed of as follows:

This action arises from a dispute amongst the parties regarding water damage to a bridge. Plaintiffs possess an easement and use the bridge as the exclusive means of ingress and egress onto their real property in Valley Cottage, New York. In the underlying action, Plaintiffs allege that Defendants undertook and conducted drainage projects in a manner that caused damage to their property and impaired their rights to use this bridge to access their property. According to Plaintiffs, the drainage projects greatly increased the volume [*2]of water flowing underneath the bridge, causing the bridge to flood when combined with any significant rainfall. Defendant submitted an answer and asserted various defenses and a cross-claim against their co-defendants.

Plaintiffs' Alleged Failure to Comply with General Municipal Law §50-e

Defendant moves to dismiss Plaintiffs' claims against them based upon Plaintiff's alleged failure to sufficiently identify the claims contained in their June 1, 2007 Notice of Claim. Defendant avers that Plaintiffs' Notice alleges damage to their property "...in the most general terms..." and is bereft of details as to the dates and manner in which such damage occurred.[FN1] Plaintiffs' Notice of Claim identifies the nature of their claim as "...the continued improper design, development, implementation, maintenance and other construction of flood and/or drainage control devices..." and specifically identifies the Kill Von Beaste Culvert Project. Defendant cites Plaintiffs' failure to specifically identify any other drainage project other than the Kill Von Beaste Culvert Project in support of their allegation that Plaintiffs' Notice of Claim was insufficient and, therefore, proper grounds for dismissal.

In opposition, Plaintiffs state that they referenced drainage projects other than the Kill Von Beaste Culvert Project in their Notice of Claim as "other construction of flood and/or drainage devices" and that Defendant was in the best position to know the details of the various projects and their potential effects on Plaintiffs' property rights.

The "[p]urpose of the requirement of a presuit notice of claim against a municipal corporation is to afford the municipal corporation adequate opportunity to investigate the circumstances surrounding the accident and explore the merits of the claim while the information is likely to be available". Wai Man Hui v. Town of Oyster Bay, 267 AD2d 233 [2d Dept 1999], lv denied 95 NY2d 764. "Whether a notice of claim substantially complies with the content requirements of General Municipal Law § 50-e(2) depends upon the circumstances of each case. Levine v. City of New York, 111 AD2d 785, 786 [2d Dept 1985]. "At any time after the service of a notice of claim..., a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby. General Municipal Law §50-e(6).

Defendant's counsel questioned Plaintiff Mead Stone regarding the Branchville and Green Street projects and their potential connection to Plaintiffs' claims at a August 1, 2007 hearing.[FN2] In addition, Plaintiffs' Verified Bill of Particulars contained additional details regarding Plaintiffs' claims against Defendant. [*3]

Based upon the submissions of the parties, the Court finds that the information contained in Plaintiffs' June 1, 2007 Notice of Claim and information adduced subsequent to Plaintiffs' filing complied with General Municipal Law §50-e in that it sufficiently apprised Defendant of the nature of Plaintiffs' claims and afforded Defendant an opportunity to investigate the validity of such claims. Moreover, Defendant has not established how any defect or omission in Plaintiffs' Notice of Claim has prejudiced them or would have altered their investigation regarding the merits of Plaintiffs' claims.

Defendant's Claim of Qualified Immunity

Defendant also claim that its status as a municipal corporation confers upon it qualified immunity from damages arising from its performance of government planning functions. Defendant cites Weiss v. Fote, 7 NY2d 579 [1960], and its progeny as authority for this assertion. Defendant claims to have reasonably relied upon the extensive studies performed by its engineering consultant, Leonard Jackson Associates, given its experience and previous work on similar projects for Defendant and other municipalities.[FN3] Given this, Defendant further argues that it "exercised due care as a matter of law in the design, implementation and constructive of these drainage projects [and]...cannot be liable to plaintiffs in this case...".[FN4]

Plaintiffs oppose Defendant's claim of qualified immunity and assert that the holding in Weiss v. Foote does not insulate Defendant from liability arising from its activities affecting Plaintiff's property rights. Plaintiffs further contend that Defendant's drainage plans evolved without adequate study in that Defendant relied upon information gleaned from inadequate studies performed by Leonard Jackson Associates and did not perform their own hydraulic or hydrologic analyses.[FN5] In support of this claim, Plaintiffs submit the testimony of Joseph J. McHugh, a registered professional engineer and certified transportation engineering technician. In his affidavit, Mr. McHugh addressed Dennis Letson's testimony that streambed elevations are determined based upon observation over a period of time to determine an average flow.[FN6] Mr. Letson testified that one does not determine normal streambed elevations from a FEMA map and he had not observed streambed elevations at the bridge related to Plaintiffs' easement.[FN7]However, Leonard Jackson, the engineering consultant Defendant retained to implement the Kill Von Beaste Project, testified that he did not conduct any streambed observations at Plaintiffs' property, relying instead upon [*4]FEMA calculations to determine the Project's impact upon Plaintiff's bridge.[FN8] Mr. Jackson stated that the data from FEMA told him "...what was going on downstream...".[FN9] According to Mr. McHugh, Leonard Jackson's failure "...to perform his own hydraulic study to include Heaton's Pond and downstream beyond the Stone's bridge, is in violation of good and accepted engineering practices since such failure is in violation of the New York State Stormwater Management Design Manual (NYSSMDM)...".[FN10]Mr. McHugh then posits that this "failure to conduct an analysis downstream of Heaton's Pond was a cause of the damage to the Stone's bridge, a downstream structure" and "Defendant Town, and its hired engineer, knew or should have known that the property at and about the Stones' bridge, including the bridge, were subject to flooding, and this project would increase the flooding potential."[FN11]

The proponent of a summary judgment motion bears the burden of proving prima facie entitlement to judgment in its favor as a matter of law and without the need for a trial. CPLR §3212; Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]. Once this burden is met, the party opposing summary judgment must establish, through admissible evidence, the existence of material issues of fact to preclude summary judgment. Zuckerman v. City of New York, 49 NY2d 557 [1980]. "To defeat summary judgment the opponent must present evidentiary facts sufficient to raise a triable issue of fact, and averments merely stating conclusions, of fact or of law, are insufficient." Mallad Const. Corp. v. County Fed. Sav. & Loan Ass'n, 32 NY2d 285 [1973].

In Weiss v. Fote, the Court of Appeals held that "...liability for injury arising out of the operation of a duly executed highway safety plan may only be predicated on proof that the plan either was evolved without adequate study or lacked reasonable basis." 7 NY2d 579, 589 [1960]. The Appellate Division, Second Department, has applied this doctrine of qualified immunity to cases involving municipal plans unrelated to highway safety. See , e.g., Santiago v. New York City Transit Authority, 271 AD2d 675 [2d Dept 2000];Dobin v. Town of Islip, 11 AD3d 577 [2d Dept 2004]. In addition, "while a municipality has no duty to restrain waters between banks of a stream..., a municipality may be held liable where it undertakes to control drainage and in doing so casts water on private lands." Office Park Corp. v. Onondaga County, 64 AD2d 252, 258 [4th Dept 1978], affd 48 NY2d 765 [1979].

Given the divergent nature of the parties' submissions and the testimony of their respective engineering experts, the Court finds that material issues of fact exist as to the adequacy of studies performed by Defendant's engineering consultant and, therefore, whether Defendant is entitled to qualified immunity.

[*5]Defendant's Claim of Lack of Causation

Defendant contends that there is no causal connection between the drainage projects and the flooding conditions affecting Plaintiffs' property. Specifically, Defendant claims that the flood damage for which Plaintiffs seek to recover predate the design and/or implementation of the drainage projects. In support of this, Defendant states that Plaintiffs experienced frequent flooding as early as 1999 and contacted them regarding the condition of their bridge in 2001.[FN12] In response to Plaintiffs' claim that significant flooding and damage occurred during significant rainfall on April 16-17, 2007, Defendants offer the testimony of Dennis Letson, Deputy Director of Defendant's Department of Environmental Control. During his examination before trial, Mr. Letson testified that the constriction targeted by the Kill Von Beaste Project was not removed until June 26, 2007, two months after the April 16-17 rainfall and associated damage to Plaintiffs' bridge.[FN13] As to the start date of the Kill Von Beaste Project, Mr. Letson stated that "work related to the installation of the new culvert began on or after April 19, 2007, when Kings Highway was closed in the area of Miller Road in Valley Cottage."[FN14]

In opposition to Defendant's claim that certain flooding conditions predated its drainage projects, Plaintiffs submit evidence disputing the exact dates on which work relating to such projects began. Olga Stone testified that she observed the Defendant performing work associated with the Kill Von Beaste Project during the Fall of 2006.[FN15] In further opposition, Plaintiffs produced a Journal News article dated April 19, 2007, which states, in pertinent part, that "[w]ork on the Kill Von Beaste Flood Control Improvement Project began in September".[FN16] Plaintiffs also direct the Court's attention to the testimony of Dennis Letson at his examination before trial. When asked when work on the Kill Von Beaste Project commenced, Dennis Letson replied, "[i]n 2006, late 2005, early 2006," but immediately revised his answer to "2006, 2007 for the construction".[FN17] In his affidavit, Mr. Letson references a "Line item sheet"[FN18] in support of his statement that the demolition of an existing bridge associated with the Kill Von Beaste project did not occur until June 26, [*6]2007.[FN19] Plaintiffs note that the same "Line item sheet" contains an entry for November 30, 2006, which they offer as proof that work relating to the Kill Von Beaste project was performed on that date. In addition, Tanyo Parashkevov a representative of United Water New York, Inc. who was involved with the Kill Von Beaste project, testified that the project began around 2004 and resumed in 2006.[FN20]

Based upon the conflicting dates contained in the parties' submissions, the Court finds that Defendant has failed to prove as a matter of law the absence of a causal connection between the flooding damage to Plaintiffs' bridge and its work on various drainage projects.

Based upon the foregoing, Defendant's motion for summary judgment is denied.

Dated:New City, New York

May 19, 2010

E n t e r :

________________________

Hon. Alfred J. Weiner JSC Footnotes

Footnote 1: November 5, 2009 Affirmation of Harold Y. McCartney, Jr. at pg. 28.

Footnote 2: Transcript of August 1, 2007 GML §50-h hearing at pp 26-29. Plaintiff's Verified Bill of Particulars identifies other devices, including the Branchville, Green Street, and Kings Highway drainage projects

Footnote 3: October 27, 2009 Affidavit of Dennis Letson at pp. 4-5, 10.

Footnote 4: November 5, 2009 Affirmation of Harold Y. McCartney, Jr. at pg. 37.

Footnote 5: Plaintiff's Memorandum of Law In Opposition at pg. 21; November 8, 2009 Affidavit of Joseph J. McHugh.

Footnote 6: November 8, 2009 Affidavit of Joseph J. McHugh at ¶24.

Footnote 7: July 8, 2009 Examination Before Trial of Dennis Letson, P.E., at pg. 89.

Footnote 8: July 8, 2009 Examination Before Trial of Dennis Letson, P.E., at pg. 84.

Footnote 9: July 8, 2009 Examination Before Trial of Dennis Letson, P.E., at pg. 84.

Footnote 10: November 8, 2009 Affidavit of Joseph J. McHugh at ¶9.

Footnote 11: November 8, 2009 Affidavit of Joseph J. McHugh at ¶ ¶10, 12.

Footnote 12: November 5, 2009 Affirmation of Harold Y. MacCartney, Jr. at pg. 38

Footnote 13: October 27, 2009 Affidavit of Dennis Letson at pg. 12.

Footnote 14: October 27, 2009 Affidavit of Dennis Letson at pg. 11.

Footnote 15: December 23, 2009 Affidavit of Olga Stone at ¶6.

Footnote 16: December 29, 2009 Affirmation of Deborah Quinn, Exhibit D.

Footnote 17: July 8, 2009 Examination Before Trial of Dennis Letson, P.E., at pg. 86.

Footnote 18: October 27, 2009 Affidavit of Dennis Letson, Exhibit R.

Footnote 19: October 27, 2009 Affidavit of Dennis Letson at pg. 12.

Footnote 20: October 19, 2009 Examination Before Trial of Tanyo Parashkevov, at pg. 16.