Reisdorph v City of Peekskill

Annotate this Case

Download PDF

Reisdorph v City of Peekskill 2013 NY Slip Op 33765(U) December 5, 2013 Supreme Court, Westchester County Docket Number: 55138/2012 Judge: William J. Giacomo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. "*" FILED: WESTCHESTER COUNTY CLERK 12/06/2013 .·.··"T"'"'"""""""""""'""""""""""""'''"'''""""""""'"'"""'""""'"""""""'''"'''''''''''''''"""""··········· [* 1] INDEX NO. 55138/2012 NYSCEF DOC. NO. 101 T~ RECEIVED NYSCEF: 12/06/2013 xOtl'lfl1¢'rH'.;e th$ s~tµtpry t~rry@forappeals as of right f9~~~ 5513[~Jh you are advi$~d·.~w.·~gP/:~ .•a••copy of. ~liS Ot~~r}, \\fith netip~ of entry~ upon au parties. SUPREMIZ C(;)Ufff OFTHff STAT(2 (.)F NEW YORK ~OUr-JTYOF WESTCfiSSTfifl PRE$ENT; HQN, Wlt.t.JAM J. GiACOMOt J~s . c. ,.,..YY.Y.Y.Y"""""""""w__,,,,,,,,_,,_,,,,,,,,.,_,,""< __ ,,,,,..,~._,,,,,,,,,,_,,, _____,,,,_.""'O""'.""___._._,..,,..,.,,_,.,,,,,,,,,-.,.,x HtCHARD REISDORPH ar1d JOAN·R!EB!DORPH, Plaintiff. Index No. 55i3B/2012 OSCIStON & ORDER THE CITY OF PEEKS.KILL and HOWARD JO~''INSON and DIANE JOHNSON, Defendants. THE CITY OF PEEKSKILL, HOVVARD JOHNSON and DIANE ,JOHNSON, Thim-Party Defendants, Th9Jo!kwvins papers nt.imbered 1 to 44 \Vere read .on plaintiffs' motion for a permanent injµnction and The City of Peek$kiU's cross motion to d~smiss the complaint PAPER$ NUMBERED ................,.....,... ..........·..·.··"'-""""''". , ""~ Not®c@pf Motion/Affidavit/Exhibit A'-Hlf<.«lemo of La\-'(",, """",...............,,,,... 1·,iJ The.·.Johnson's /\ffkmation ··in. Opposttlon•. -''-:""'········----------'"'""""................," ·'12 Notice of Cross f>.,1ptlon/AfflrrnationlExhibit$ A-Y ........':·:'"': """,,.,............"---~~:,;UL Plaintrrfs Affidavlts in··Opposltlon to Cross Motton/Exhibits A-.C'"'"'",.....,.......,,... 4D;,4d The·t:>lt~(.s -r<ep~'t"""········-·--, '"'"""······.··.·----"""'·······.·-------""""..............~4. Plaintiffs reside at 330 Dep€w Street in the City of Peeksxm in a horn~ they have [* 2] the Hudson River to the west The property 1$ blsec-ted by a natural stream running \n a general north/south ctfrectiurL The stream originates in Depew Park and runs downh~H to an open channelthrough severa1 prope:rNes befote passing ·beneath Oeµevl Street and te,. entering the strearn that bisects plalntiffs' property, Several htmdred feet south of the property the stream passes beneath Requa Street in a cu!vert.aesigne<l for that purpose, The water than continties down to the Hudson River. P~aintiffs dairn that priortoThe City of Peeksk!H's {"the City") »Qepe¥vPark Drainage ProJecf' (the "Drainage Project~).they v..ouM experience oc-caslona~, minor overfk.wvs of the stream, typicaUydudng a hi..irrlcane and other intense rah1 events. These overf!u\,vs \•vuu!d briefly cover a small portion of the southerly end of their property and then quicMy dl:ssipate, In 2001, the City undertook the Drainage Project ~n.and around Dopo\iv Park, The project involved pip@ng the open drainage ¥vay betvieen the Park and Depew Street, 'While doublintJ the number of p~aintlff$' property. pip~~:s used to catty the dtainage beneath Depevv Street on the Plaintiffs; expressed c«1ncems to the City about the irnpact of tMs work on their property (lnd \t..iete toldthaHhere would he less waterdrscharged on their ·prc~perty upnnthe comp~etion of the project Plaintiffs were a.!so·fold that the City v>lould clear the Requa Street culvert of accurnu!ati;ID.trees, leav'es, trash and debris \Nhlch had hlstodca®ly been>cloggad and \•\"hich risked storm water backup and flooding on their property. The cu~vert entrance is ori µropetty owned· oy defendants/third party defendants Howard and mane Johnson, [* 3] On August 28, 20'11, during Hurricane Irene, ph~intfffa' property was inundated \•vith 'Water causing a flood in their basement 4 feet in· depth. Also a large brown lake fonned behind· their houst:1. Plaintiffs e-ornmenced this action against the City seeking to recover for property compla~nt, pla}ntiffo a~leg~ that the Drainage Project signffie:antly increased the V#~ter ftcwing on to their property, F(1rther, they clakn theyv{ere. mfa~ed by the City reuarding the damages. After being served with the complaint, the City commenced a third party action nQt perrnR the City on to the property,. Nevertheless, the City notes that the·Howards are b~ccked culvert and demanded that the cutvert be deaned by August· 1, 201 ' .1, On Au9ust [* 4] By Decision and Order dated May7, 2012, the City of PeeksMH City Court (\/VWiam !'vlaher, ,L) found the Howards guilty of violating section 491,, 11 of tho Code of the City of Peekskm for their failure to clear the b!oc;ked <:a.ilvert Plaintiffs now move for summary Judgrnent declaring that the·C§ty is Hable for the flooding ot their property and an order directing 1t·t0 abate the storm water fk:iw to that which predated the Orainago Project and send this case to a hBarlng on damages. In support of thelr motion, plaintiffs svbmitthe affidavit of Richard J. Riesdorpn, P,E, a Ne\v ·York State !lGensed Professional Engfrmer {who is also their son} who detaited the City's negHgence in the irnp!en)entatkvi of the Drainage Project and the adverse lrnµact of that negHgence. H was Riesdorph's opinion that the Cfty's piping of what had been an open watercourse above the property, its doubllng of the number of pipes dischar9fr19 on to me property and fts rep!:ateiTWH'lt of corrugated pipes with "smoothwaW' pjpes under Depevv Stxeet, have dratt1atlcaHy increased the velocity and erosive iropact of the stcrrn \<Vater traversfr1g the property, Further, the failure of the City to emwre that the Requa Street culvert be properly mainta§ned by the· Johnsons resulted in addmonal. flooding. In oppcsitjon, the City argues fhatthere are issues of fact which preclude surnmary Jud-gn1ent ln thls matter, First, the City notes that the flooding v.<hWh caused the p®aintfffs' property danwge occurred during· Hurr~cane Irene which, untH Hurricane Sandy, ¥vas the ~argestand rnost exp0nsht{l natlxraJ disaster in the hiMory of the state, The City also argues that there ts no objetUve proof that th0te was an increase in the water's volume or velocity on plaintiffs' property, Fina!!y, the City argues that them is no proof that the lack of rriaintenance orthe Requa·stre0tcu!vertcaused floo<:!ing to plaintiffs' property, Rather, trte flooding could have been caused by Hurnoane Irene, [* 5] The Johnsun$ also oppose plaintiffs' rnotion on the ground that it $s premature since discovery is not complete. VVlth respect fo the ~fohnsonsi opposition, the pialntlffs note that they merely submitted an attorney affirmation which is of no probative vafue, The City cross rnoves for an order dlsmissfng the complaint on the ground that the a!~eged th.t!sance and trespass \<\«as created ln 2002 as a resurt oft he Drainag:~1 Project and the action is barred by the statute of limitations since plaintiff did not commence this action one year and ninety days after the a~!eged negligent design and H1stal!ation of the stnrm drainage systern, The Cit)" also ciaJms that lt is irnmune from suit because the design and instaHaUon of the storm dratnage systern was a discretionary act, therefore, it cannot be h$!d liable even lf pUdntlffs can estabHsh negHg-ence. The Ctty also argues sh1ce the f-lo\;\«ards are respons~bJe for maintaining fh¢ir portion of the waten:::oun~e, lt cannot be he!ct Hable for their fai®ure to rnaintain the Requa Street cu~vert In opposition to the cross motion, the plaintiffs argue that the action is not fane barred because this case is not based so!e~y on negligence but also on a claim d cont~ni.Jing trespass and nuisance,, PtaJntif!'s also argue that eac;h flood is a new occurrence $hd the one year period starts after each one. Therefore, this action is time®y, Plaintiffs further argue that the City ls not immune from sult·b¢cause municipalities are not imrnune from suit for negligent maintenance of their sewer systems, Further, even if" the C1t)·· is in1rnnne here it affirmatively-assured p!~tntiffs that the Dn~inage Project wouM not increase the .water on their property, Tnemfore, the City assumed a duty to plaintiffs v1hich they breached, [* 6] New York Uhlv~ M&d Ctr:, 64 NY2d 851, 853 [1BB5}; Alvarez v Ptospect Hospital, B8 oppo$ing the motion for surnmary judgment to produc.e evidential)« proonn admissible form st.ifficient to estabHsh the existence of material issues of fact vvhich require a trla! of the action'' (see Zuckerrnan v. City ofNevv·Yot1<, 49 NY2d 557 (1980]). To the extent relevant, CPLH 6301 provides that "A pr~firninary ~nJwnction may l~e granted in any action vvhere it appears tnaHhe qefendant threatens or is about to do, or is dolng or procwririg or suffering to be done, an act in violation of the p!a!ntlWS.rights respectihg fhf;l subject of the action, and tending to render the jµdgment ineffech-1al, or in any action where the plaintiff nas dem~nded and· wou~d be entitled to a judgment restrain~ng the defendant.fh?m the comrnls$ion or continuance ofan act which, Wcomrnittect or contim.ied during the pendency of the action, woMld produce injwry to the p!a~ntiff." H is settled law that a party seeking a preliminary injunction pursuant to CPU~ 630'1 ''mustprovethreethings; (1) likelihood of bis ummatesuccess onlhernerits; (2) irreparable injury to him absentgrantingoHhe pre!itninary injunctton~ and (3) a balancing of equities" in his favor {AlbitJi v Solork AssocietBs, 37 A, D .2d 835 f2d Dept, 1971 j}. [* 7] Here, pla!nt!ffu ·have not established ent!Hement to surnrnary judgrnent seeking Irene. Thus, plaintiffs have not demonstrated a Hke!ihood of success on the merits. ~Aoreover, since it is not clearthat the Drainage Project was the cause of the flooding injunctive relief Further, plaintiffs request for rnonet:ary darnages in this lawsuit capable . ~ . . . ":-\ is not !n favor of pla~ntiffs. Accordingly, plaintiffs 1 motion for surmnary judgment and seeking ~njunctive reifo~f have occurred then and not in 20·11 when the flooding occtnTed. However, in vitwv ot the [* 8] 2008]). on plaintiffs' property and that the Requa Street cu~vertwou~d be cleared, In a !May ·1, 2002, letter written by Director of PuhHc VVorks Richard M . Dit-.,'larzo, in response to plaintiffs' letter t¢ the l'v1ayor $etting forth their concerns about the Drainage Project, Mr, Di Marze me Requa Street ctdvert was never cleaned by the City, Based· on the foregolni;th the City's cross motion to cthwniss the cornplaint is DENIED. The parties are directed to appear in Settlement Conference Part on February 24, 20l4 mom 1600 at 9:30 a . rtt for further proceed@ngs, D~ted~'. VVhlte· Plain$, Nevil York December 6, 2013

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.