Talib-Taylor v Town of Greenburgh

[*1] Talib-Taylor v Town of Greenburgh 2016 NY Slip Op 51262(U) Decided on September 6, 2016 Supreme Court, Westchester County Everett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 6, 2016
Supreme Court, Westchester County

Wasfiyah Talib-Taylor and CHARLES TAYLOR, Plaintiffs,

against

The Town of Greenburgh, a MUNICIPAL CORPORATION, and VICTOR CAROSI, TOWN of GREENBURGH HIGHWAY SUPERINTENDENT, in his official capacity as Highway Superintendent and as an employee of THE TOWN of GREENBURGH, Defendants.



50701/13



Turner & Turner

305 Old Tarrytown Road

White Plains, New York 10603

Attorneys for Plaintiffs

Wilson, Elser, Moskowitz, Edelman & Dicker LLP

1133 Westchester Avenue

White Plains, New York 10604

Attorneys for Defendants
David F. Everett, J.

Under motion sequence number 002, defendants Town of Greenburgh (Town) and Victor Carosi (Carosi) move for an order, pursuant to CPLR 3212, granting summary judgment and dismissing the complaint. Plaintiffs Wasfiyah Talib-Taylor and Charles Taylor oppose the motion, and under motion sequence number 003, cross-move for an order, pursuant to CPLR 3212, granting summary judgment and awarding them damages based on trespass, acts of nuisance and/or a taking of their property without compensation. Plaintiffs also seek injunctive relief directing the Town to cease and desist using the property forthwith. The motions, under motion sequence numbers 002 and 003, are consolidated for disposition.

Upon the forgoing papers, it is ordered that the motion for summary judgment is granted and the cross motion is denied.

Plaintiffs commenced the instant action by filing a summons and complaint in the Office of the Westchester County Clerk on or about January 16, 2013. Issue was joined by service of defendants' joint answer on or about March 28, 2013. Pursuant to written stipulation dated October 14, 2013, defendants served an amended answer with 22 affirmative defenses on or about October 30, 2013. The parties pursued a course of discovery pursuant to the preliminary conference order, several compliance conference orders and a decision and order resolving a discovery dispute over the release of certain documents. After plaintiff filed a note of issue requesting a trial without jury, and a certificate of readiness, on July 25, 2015, defendants served the instant motion. Plaintiffs oppose the motion and cross-move for summary judgment on each of their causes of action.

The following facts are taken from the pleadings, motion papers, affidavits, documentary evidence and the record, and are undisputed unless otherwise indicated.

On or about January 24, 1995, plaintiffs acquired property located at 16 Hunter Lane, Elmsford, Town of Greenburgh, New York (Property) by deed recorded in the Office of the Westchester County Clerk. The house, which was constructed on the Property in or about 1933, fronts Hunter Lane, a/k/a Executive Boulevard. In or about 1955, prior owners of the Property constructed a free standing garage 15 feet from the house. A room was constructed joining the garage to the house in or about 1960, and the Property has remained in this configuration since that time.

Approximately 10 years later, on or about June 29, 2005, a heavy rain event caused excessive flooding to plaintiffs' Property. According to the complaint, the 2005 rainstorm caused stormwater to enter into and exceed the capacity of the Municipal Separate Storm Sewer System (MS4) in the vicinity of plaintiffs' Property, causing significant flooding. Plaintiffs allege that the resulting flood damage to the Property included soil erosion, sedimentation, destruction of landscaping and personal property, and structural damage to plaintiffs' residence and septic system. Plaintiffs further allege that damage of this nature has recurred with each significant rain event since 2005. The excessive flooding has also, allegedly, exposed the poor condition of the Town's MS4, and of the partially collapsed concrete culvert, which runs from defendants' catch basin, located directly in front of the Property, across plaintiffs' front lawn, and beneath the house, the rear patio, the walkway and the rear lawn. Almost immediately after the 2005 storm, plaintiffs notified the Town of what had occurred and requested remediation.

By letter dated July 22, 2005, Greenburgh Town Engineer Michael Lepre, P.E. (Lepre) drafted a letter to Greenburgh Commissioner of Works Al Regula (Regula), proposing drainage improvements and an easement at 16 Hunter Lane. The letter states, in relevant part:

"As you are aware, during the [2005 storm] nearly 5 inches of rain fell in only 3 hours, resulting in significant damage to an existing drainage system at the [Premises]. The drainage system through this property provides storm water drainage service for the Town road network of Hunter Lane and Executive Boulevard, and is a critical element for ensuring the structural integrity for the roadway and adjacent structures.At your request, I researched existing Town drainage maps for the area and examined the post-storm condition of the site, in order to determine the best way to repair and/or rebuild the damaged drainage system. Based upon this investigation, the following conditions need to be addressed:The existing drainage system travels under the house . . . and is nearly impossible to maintain or repair in its' [sic] existing location;The existing drainage system has experienced significant damage to the conveyance elements under the house as well as surrounding property, and can only function at partial capacity;The existing drainage system in its' [sic] current damaged state has the potential to cause settlement of structural elements of the house, and continued settlement of the drainage channel;The drainage system cannot reasonably be relocated into an existing public right-of-way.Based upon the above, it is my recommendation that this drainage system remain on the subject property, but be relocated around the existing house. This would be accomplished [*2]by first obtaining a maintenance easement from the property owner, and then reconstructing the drainage system for a distance of approximately 250 feet.As the proper function of this drainage system is crucial for the performance of the adjacent Town roads, I recommend that this work be performed immediately. The construction cost is estimated to be approximately $100,000, and will take about one month to accomplish"

(complaint, exhibit B).

In an interoffice memorandum dated December 19, 2005, Lepre provided Regula with information about creating the proposed drainage district for the area, which is also referred to as the Mine Brook section of the Town, together with, what appears to be, a topographical map of the area (notice of motion, exhibit Q).

In an interoffice memorandum to the Town Supervisor and Town Board, dated July 28, 2006, Regula reported on the drainage issue involving the Property, and advised them that:

"[t]he drainage system is located on private property, and does not have a formal maintenance easement obligation on the part of the Town. This drainage system does, however, provide storm water drainage service for the Town road network of Hunter Lane and Executive Boulevard, and is a critical element for ensuring the structural integrity of the roadway and adjacent structures. For these reasons, we again request that you consider the possibility of allowing the Town to make the required repairs, through a formalized drainage easement agreement with the property owner.As you may also be aware, we have also investigated the option of creating a drainage district for a portion of the watershed area of which this drainage system is a part. . . . The formation of such a district . . . would allow the cost for the repair of this drainage system to be borne by the district. Any repairs and improvements of the district would be funded by the member property owners. The creation of this drainage district, however, would require legislative action by the Town, approval by the State Comptroller, and could be subject to permissive referendum, and would likely be a longer term solution for this property.. . . As this drainage system has been in a state of disrepair for over a year, the property owner should be informed of the Town's intentions as soon as possible, in order that repairs may be performed by the appropriate parties"

(notice of motion, exhibit R; complaint, exhibit C).

While the Town Board continued to explore the possibility of creating a drainage district — to allow the cost for repairs of the subject drainage system to be borne by property owners within the proposed district — it did not approve entering into a private easement with plaintiffs, nor did it approve expending funds to cover the cost of repairing the culvert on the Property (notice of motion, exhibit S). On March 11, 2007, Town Attorney Timothy Lewis notified [*3]Wasfiyah Talib-Taylor, via e-mail, that the Town engineer's office was recommending the creation of a drainage district, that such drainage district would include properties in her neighborhood, and that the Town engineer's proposal would be forwarded to the Town Board (notice of motion, exhibit U). In 2008, the Town retained the professional services of Paul Petretti (Petretti), a civil engineer and land surveyor, to provide engineering design services related to the possible formation of a drainage district and to address the drainage problems in and around the area of the Property.

It is undisputed that an unspecified number of other property owners in the proposed drainage district opposed the creation of a drainage district. Their collective objection was the projected additional tax on their properties to cover the cost of a service that would primarily benefit only one property in their area, that of plaintiffs. When the proposal fell through due to the community's opposition, the Town took the position, which it still maintains, that it cannot pay for the repairs, because both the culvert and the damage are on plaintiffs' private property, and were neither caused by the Town, nor exacerbated by any action taken by the Town.

It is clear from written communications between various Town employees, including the Town Supervisor, and communications between these individuals and Wasfiyah Talib-Taylor, that all involved parties were aware of the flooding problems occurring on the Property, which began with the 2005 storm, and that despite the failure of the drainage district proposal, the Town continued to look for ways to address plaintiffs' flooding problem. One such plan involved, and continues to involve, the redirection of drainage water to a drain line on Saw Mill River Road, avoiding plaintiffs' Property in the process. By this plan, the Town would not need to get an easement from plaintiffs, or from any other property owners in the affected area.

Despite these discussions, the Town's plan to redirect drainage water away from the Property, the Town's allocation of approximately $350,000 to help cover the cost of the work, and the Town's submission of its plan to the New York State Department of Transportation (NYSDOT), the work has not begun, and plaintiffs are no better off now than they were when they first notified the Town immediately after the 2005 rain event. Due to the magnitude of the problem, and the understandable frustration of plaintiffs, they commenced the above-captioned action for relief. Plaintiffs' central premise is that liability lies against the municipal defendants based on their use of pipes and artificial conveyances to collect and discharge surface water on their Property, without permission, due process or just compensation. In addition to naming the Town as a defendant, plaintiffs name Carosi, in his capacity as Highway Superintendent for the Town, as a defendant in this action.

The first cause of action charges defendants with trespass based on the lack of any agreement authorizing defendants to use or occupy their Property for any purpose, including the continued discharge of municipal stormwater. The second cause of action charges defendants with public nuisance based on their ongoing discharge of municipal stormwater onto plaintiffs' property and into the culvert underneath plaintiffs' property, which defendants have failed to repair. This, in turn, has caused one or more septic systems to fail. The third cause of action charges defendants with private nuisance based on defendants' continuing failure to abate the problems which adversely affect plaintiffs' Property. The fourth cause of action charges defendants with inverse condemnation based on their failure to compensate plaintiffs for the Town's use of their Property for the discharge of municipal stormwater. The fifth cause of action [*4]charges defendants with negligence based on their failure to maintain the facilities and systems it uses for stormwater management, their failure to prepare and enforce a comprehensive stormwater management program, and their failure to maintain the culvert running beneath the Property. The sixth cause of action charges defendants with violating state and federal laws by their inadequate and improper management of municipal stormwater and by their failure to maintain proper infrastructure to handle its discharge. The seventh cause of action charges defendants with failing to comply with FOIL requests. The eighth cause of action charges defendants with promissory estoppel for failing to follow through with their promises, which plaintiffs justifiably relied upon, to correct the culvert and flooding problem on their Property. The ninth cause of action charges defendants with violating New York State highway laws by failing to keep the culvert in good repair. Plaintiffs also seek an order and permanent injunction enjoining defendants from discharging municipal stormwater onto or under their Property, plus damages, costs, expenses and reasonable attorneys' fees.

As the proponent of the summary judgment motion, defendants "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

To this end, defendants submit an affidavit from Petretti (notice of motion, exhibit K), who states that, as part of the engineering design services he provided to the Town relating to the formation of a drainage district, he reviewed existing records and maps, researched topography, drainage, landscape and historical development in the area, and performed field work. Petretti states that, based on his research, he is able to conclude that there was an open, natural waterway that flowed across Hunter Land and through the Property, which was, as some point in time, channeled into a covered culvert by a prior owner of the Property. This, Petretti states, was done to enable the freestanding garage to be joined to the house.

The documents Petretti reportedly relied upon include a 1909 map of the subject area, together with an aerial photograph (notice of motion, exhibit K, exhibits 1, 2), which, according to Petretti, reveal the existence of "an open, natural and free flowing channel of water," identified as the Clear Brook stream, or channel of water, dating back many years. The map and photograph also provide visual evidence of the area's topography sloping downward toward the Property (id. exhibit K, ¶ 4). Petretti also reportedly relied upon a copy of a recently filed land title survey of a nearby property, which continues to show an open channel of water (id. exhibit K, exhibit 3). Based on the various records he researched, Petretti dates the construction of plaintiffs' house to 1933, and dates the construction of the freestanding garage, approximately 15 feet away from the house and on the other side of an open channel of water, to about 1955. He annexes a copy of the building permit, permit number 8696, issued by the Town with respect to the garage (id. exhibit 4), and acknowledges that the drawings made part of permit number 8696 do not depict a channel of water.

Petretti found that, in or about 1960, the Town issued the then Property owners a permit to construct a one-story 15' by 20' room with a concrete foundation to cover the expanse between the house and the garage (notice of motion, exhibit M). By this construction, the house and garage were physically joined. According to Petretti, the joining of the house and garage [*5]necessitated action with respect to the channel of water that continued to run between the two structures, and that, based on his research and inspection, it appears that a 1.5' wide by 2.6' tall, stone-lined, box-shaped culvert was constructed to carry the channel of water underground.

In this manner, the channel was buried. Petretti found that the buried culvert starts at the street/property line and makes two 90 degree changes in order to pass under the area of the property where the room addition was built joining the house and garage (id. exhibit K, ¶ 6). Petretti states that, in the course of his investigation, he also discovered that the property immediately south of 16 Hunter Lane was also improved in the mid to late 1960s, and that the channel of water was also covered on that property.

Petretti notes that the survey on file for the Property fails to reveal an easement for the Town's entry on the Property for the placement of piping or the culvert, or for the maintenance of the culvert. Likewise, he discovered that the Town does not have an easement for the placement or maintenance of piping on the neighboring property.

Next, Petretti states that, based on the type of materials used, and the manner in which the culvert was installed, he is able to conclude that the culvert was not built by the Town, as it is inconsistent with both the materials and the professional engineering methods typically used by the Town in its drainage systems (id. ¶¶ 6, 7). He suggests the most likely scenario is that culvert was installed by the Property owner at the time (id. ¶ 8).

With respect to the proposed drainage district, Petretti researched the areas that would flow in the direction of Hunter Lane. According to his affidavit, Petretti discovered that, prior to the development of Executive Park and Romark Park north of Hunter Lane, there were between 44 and 49 acres of land (acreage) within the watershed tributary that naturally drained onto plaintiffs' Property (id. ¶ 10), and that this natural flow is apparent in a 1960 aerial photograph of the acreage and of the portion of Hunter Lane that separates the acreage from the Property (id. exhibit 5). Petretti notes that, as part of the development of the area, including Executive Park and Romark Park, "a significant amount of water within the watershed tributary to 16 Hunter

Lane was diverted to Mine Brook, thereby reducing the acreage tributary to plaintiffs' property to just 7.37 acres" (id. ¶ 10).

Defendants also submit an affidavit from Carosi, who is also a licensed professional engineer (notice of motion, exhibit L). In his affidavit, Carosi reports his familiarity with the Property, and his knowledge of the topography in the surrounding vicinity, which slopes downward toward the Property. Carosi, like Petretti, states that maps and photographs of the area depict an open, free flowing channel of water flowing across Hunter Lane and onto the Property.

Carosi also concludes from his review of Town documents that plaintiffs' house was constructed in 1933, that a separate garage was constructed on the Property in 1955, and that in or about 1960, a permit was issued to the then-owners of the Property to construct the 15' by 20' one-story room connecting the garage with the house using a concrete block foundation. Consistent with Petretti's assessment, Carosi asserts that, in order to join the house and garage, the free flowing channel of water was directed underground by way of a stone-lined box-shaped culvert measuring approximately 1.5' wide by 2.6' tall (id. ¶ 6). Given that the culvert was not constructed of materials, or engineered in a manner typical of Town-installed drainage systems, and there are no documents on file evidencing an easement to the Town to install such culvert on [*6]the Property, Carosi, like Petretti, concludes that it was the then Property owner, and not the Town, that installed the culvert (id. ¶¶ 7, 8). Finally, in direct response to certain of plaintiffs' allegations, Carosi asserts that the existence of the catch basin is neither evidence that the Town

redirected, or in any way altered, the direction of the natural free flowing water, nor is it evidence that the Town increased the flow of water into the culvert (id. ¶ 9).

Next, defendants present their legal arguments in support of their motion for summary judgment, starting with the applicability of well settled law that a municipality "is not liable for the natural flow of surface water," and that:

"[t]he mere facts that the city has collected surface waters in a single channel and that the brook has at times overflowed its banks are not sufficient to impose liability on the city. The relation of cause and effect must be established. The burden is on the plaintiff to establish that the flooding was caused by the construction of artificial channels rather than by unprecedentedly heavy rains

(Cachin v City of New Rochelle, 256 NY 190, 194, 195 [1931] [internal citation omitted]). It is also well settled that a municipality: "owes no duty nor is it under compulsion of any kind to construct sewers for the disposal of surface waters. This is true no matter what the harm resulting from such a failure or omission by the municipality . . . [and it cannot] be held liable for its failure to provide a drainage system sufficient to dispose of surface waters flowing as a result of the natural drainage, the grading and paving of streets"

(Beck v City of New York, 23 Misc 2d 1036, 1041 [Sup Ct, Queen County 1960], affd 16 AD2d 809 [1962] [internal citations omitted]).

Addressing the issue of the Town's installation of stormwater infrastructures, defendants explain that they (essentially, pipes and a catch basin) were installed under Hunter Lane for the legitimate purpose of directing the flow of water under the public roadway, instead of across the public roadway, and that by doing so, they did not cause an increase in either the amount or the velocity of water that naturally flows across Hunter Lane and through the Property. As to the culvert, defendants explain that, due to the nature of its construction, which is inconsistent with Town work methods and materials, and due to the lack of Town records for an easement for the installation or maintenance of a culvert at 16 Hunter Lane, they cannot be held liable for any damage resulting from a faulty or inadequate culvert constructed on private property, which tends to overflow during heavy rain events. Defendants argue that, without affirmative evidence of this nature, the causes of action for trespass, public nuisance, private nuisance, inverse condemnation and/or negligence must be dismissed.

Defendants seek a summary dismissal of plaintiffs' causes of action sounding in violation of state and federal laws, because neither New York's Environmental Conservation Law, nor the federal Clear Water Act creates a private right of action in state court, and for a dismissal of their claim for violating New York's State Highway Law § 140 (5), because the statute does not create an obligation on the part of the Town to repair a private culvert on private property. Defendants seek a dismissal of plaintiffs' FOIL claim on the ground that they did not exhaust their administrative remedies, a prerequisite to court relief, and a dismissal of plaintiffs' promissory [*7]estoppel claim on the ground that the equitable remedy cannot be invoked against a municipality, except under the most unusual and rarest of circumstances (Parkview Associates v City of New York, 71 NY2d 274, 279 [1988]; Casa Wales Hous. Dev. Fund Corp. v City of New York, 129 AD3d 451, 451-452 [1st Dept 2015] [internal quotation marks and citation omitted]), which has not been alleged here.

Defendants also move for a summary dismissal of the complaint to the extent that plaintiffs seek damages for claims arising prior to the date they filed the required notice of claim. Inasmuch as plaintiffs filed a notice of claim on December 5, 2012, defendants assert that those of plaintiffs' claims that are based on a flooding event occurring prior to September 6, 2012, are time barred, leaving their claim stemming from an October 4, 2012 storm event as the only claim not time barred. Defendants further assert that, even as to their claims based on that single event, plaintiffs cannot show damages, since the Town has already taken steps to re-route the natural

flow of water away from the Property, at a cost of $350,000 to the Town, and plaintiffs are not entitled to any further relief, injunctive or otherwise.

Finally, defendants move for a summary judgment dismissal of the complaint to the extent the claims are based on the Town's negligent design of its drainage system, because a municipality is immune from liability stemming from a deficiency in design (Zarlin v Town of Clarkstown, 102 AD3d 865, 866 [2d Dept 2013]).

Defendants contend that the evidence conclusively disproves plaintiffs' allegations that the Town: (1) constructed the culvert on his Property; (2) connected its subterranean stormwater infrastructure to the culvert; or (3) increased the volume and velocity of water flowing onto the Property by diverting, directing or redirecting municipal stormwater onto the Property through its use of ditches, pipes and other artificial infrastructure, and are entitled to judgment in their favor.

Upon examination of the defendants' papers, the Court finds that defendants have established prima facie entitlement to summary judgment through proof, submitted in competent evidentiary form, that: (1) by installing storm drainage infrastructure which directs the natural flow of water under Hunter Lane, they have not increased either the volume or velocity of the water discharged on the Property; (2) the Town did not construct, install, operate or maintain the culvert; (3) the Town did not connect the 24 inch discharge pipe (alternately referred to as a drain line) to the 18 inch culvert; or (4) the flooding of water onto the Property is not a regular condition, but one which occurs intermittently during heavy rain events. The burden, therefore, shifts to plaintiffs to demonstrate the existence of a triable issue of fact with respect to any of these issues (Alvarez v Prospect Hosp., 68 NY2d at 324).

In opposition to the motion, and in support of their cross motion, plaintiffs argue that they are entitled to a judicial finding that defendants' actions constitute trespass and/or nuisance, that defendants have taken the Property without due process or just compensation, and that they are entitled to both monetary damages and an injunction directing the Town to cease using the Property. Alternately, plaintiffs seek an order directing defendants to repair the culvert and to compensate them for their use of the culvert until the Town constructs an alternative solution for drainage of stormwater.

Plaintiffs' support their arguments with, among other things, the expert affidavit of licensed professional engineer, Larry J. Nardecchia (Nardecchia), and copies of maps and written [*8]communications between various member of the Town, and or between persons hired by the Town and the NYSDOT.

According to his affidavit, Nardecchia inspected the Property and surrounding area on June 23, 2015, and again on July 2, 2015, and observed that the culvert was in extreme disrepair, that it was not functioning properly, and that both the culvert and the municipal storm drain along Hunter Lane and Clearbrook Road were dry. He states that the dry condition indicates that the culvert "does not carry ground water but is rather a dedicated conduit for municipal stormwater" (Nardecchia aff, ¶¶ 9, 14). Nardecchia opines that, based on his observations and on his review of the Lepre's July 22, 2005 letter and Regula's July 28, 2006 letter, plaintiffs' flooding problems are the direct result of the Town's decision to connect the 24 inch drain line to the 18 inch culvert.

Next, plaintiffs quote from the portion of Lepre's letter in which he reported that the "drainage system through this property provides stormwater drainage service of the Town road network of Hunter Lane and Executive Boulevard, and is a critical element for ensuring the structural integrity of the roadway and adjacent structures" (complaint, exhibit 3). Plaintiffs argue that, by this statement, defendants have effectively conceded liability, as they have by a statement contained in a letter from Petretti to the NYSDOT dated November 27, 2014. In it, Petretti stated, in relevant part, that: "[a]t present the stormwater from the entire tributary area discharges to a culvert under a residence at 16 Hunter Lane" (plaintiffs' aff in opp, ¶ 13; exhibit B). Plaintiffs argue that these statements, together with the acknowledgment in defendants' motion papers that the Town installed catch basins "to place underground the water that would otherwise be flowing over Hunter Lane" (defendants' aff in supp, ¶ 55), constitute conclusive proof that the Town "purposefully, consciously and deliberately" connected its municipal storm drain to the culvert in order to direct the collected municipal surface water onto the Property.

Plaintiffs rely on Kossoff v Rathgeb-Walsh (3 NY2d 583 [1958]) and Zutt v State of New York (19 Misc 3d 1131 [A], 2006 NY Slip Op 52611[U] [Ct Cl, 2006]) to buttress their argument that the evidence before the Court conclusively establishes defendants' liability under theories of trespass, nuisance, and appropriation without just compensation. Both cases involved state-altered drainage conditions through the use of pipes, ditches and/or catch basins, which caused an increase in the velocity of any waters collected and the potential for erosion. In Zutt, the court stated, in relevant part:

"[w]hat this case involves . . . is consideration of what duty the State owes its neighbors. It would appear to be simply unfair for the State to willy nilly discharge water across private land without permission, and without any responsibility for assuring that water it sends across private property does not wreak havoc to anything in its path."

* * *"It is well established that although an upland owner is not generally liable to a lowland owner for an increased flow of surface water resulting from re-grading or general improvements to his property, he may be liable if he collects storm water by means of pipes or ditches and discharges it upon neighboring property causing damage. Moreover, if collected storm water is discharged into an already existing natural watercourse, liability will nonetheless attach if the resulting flow of water overburdens the receiving [*9]channel. Thus regardless of whether the discharge of water through the State's culvert was to a natural watercourse, or one created only as a result of man's intervention, if the resulting flow overburdened the channel then the State may be liable" (id. at *11-12 [internal citations omitted]).

Among the other cases cited by plaintiffs is M. C. D. Carbone, Inc. v Town of Bedford (98 AD2d 714 [1983]). In it, the court found " sufficient evidence to support the jury's determination that the defendant unreasonably collected surface waters and emptied them onto plaintiff's property by the artificial means of pipes and ditches which constitutes an actionable trespass" (id. at 714). Plaintiffs contend that their facts are analogous to M. C. D. Carbone, Inc., in that the Town also used artificial means to collect and empty surface waters onto the Property. They also contend that their facts are also analogous to those in Office Park Corp. v County of Onondaga (48 NY2d 765 [1979], affd 64 AD2d 252 [4th Dept 1978]), and in Goldstein v County of Monroe (77 AD2d 232 [1980]), which uniformly hold that municipalities may be held liable when, in the process of controlling municipal drainage, they cast water onto private property due to improper method, means, mode or otherwise.

In direct response to defendants' arguments, plaintiffs dismiss defendants' claims about the culvert, insisting that defendants offer only speculation that it was a prior owner of the Property that constructed and enclosed the culvert, and then connected it to the municipal catch basin at the edge of the Property. Next, plaintiffs deem irrelevant the history of the Clear Brook stream on the basis that the stream no longer exists, since what used to be the Clear Brook stream, was, according to plaintiffs, rendered little more than a municipal drainage ditch back in 1964 or 1965. To contradict defendants' claim that the municipal drainage system merely permits the Clear Brook to continue its natural flow of water onto the Property, plaintiffs offer Nardecchia's statement that the dry culvert indicates to him that "the culvert on Plaintiffs' Property does not carry ground water but is rather a dedicated conduit for municipal storm water" (Nardecchia aff, ¶ 9). On this point, plaintiffs explain that, what has become a fairly dry drainage ditch, is, under certain weather conditions, used by the Town to collect stormwater from surrounding areas, and that the Town then channels the stormwater into the municipal storm sewer that leads to the culvert on their Property (plaintiffs ' aff in opp, ¶¶ 38-41). According to plaintiffs' theory of liability, it is in this manner that the Town has been using artificial pipes and ditches to trespass onto their Property for years.

Plaintiffs also deem irrelevant defendants' argument and evidence tending to show that the tributary acreage being funneled and discharged onto the Property decreased, rather than increased, in volume. This, they explain, is because defendants' liability is premised, not on the increased volume of discharged water, but on their affirmative act of connecting a 24 inch discharge pipe into the 18 inch culvert on the Property, in violation of standard engineering practice, and without either an easement or permission. With respect to the faulty culvert, the construction of which plaintiffs have, at times, attributed to defendants, plaintiffs also assert:

"[i]n fact, the history of who installed the concrete culvert on Plaintiffs' property when and why is lost to time; no one, including opposing counsel and town officials, know the circumstances surrounding the installation of the culvert on Plaintiffs' property. What is known, however, is that Defendants connected an oversized discharge pipe to the culvert, [*10]never maintained the culvert, and used the culvert as part of the municipal storm water system for many years without Plaintiffs' permission or consent" (id. ¶ 36).

They also assert that recently divulged evidence concerning Romark Park reveals that the location of the Clear Brook stream was altered at some point in time, that the Town connected the municipal drainage system to the culvert at the time the Romark Park drainage improvements were made back in 1964 or 1965, and that Petretti's accusation that it was the prior Property owner who connected the culvert to the catch basin, rather than the Town, is little more than speculation.

Plaintiffs conclude that the undisputed facts regarding the Town's intentional channeling of stormwater to the catch basin under Hunter Lane, and its affirmative act of connecting the catch basin to the culvert in order to release the stormwater onto the Property, without their permission and without just compensation, plaintiffs claim entitlement to summary judgment on their claims for trespass, nuisance, negligence and inverse condemnation.

Finally, plaintiffs advise the Court that they understand that the Town plans to install a new drain on Hunter Lane, which would carry stormwater to Route 9A, and in doing so, bypass the Property altogether. However, given that the Town has not remedied the problem over the past 10 years, plaintiffs are unconvinced that the work will be completed any time soon, if at all (id. ¶ 24), and wish to pursue their legal remedies, including financial compensation for property damage.

In response to plaintiffs' cross motion for summary judgment seeking, essentially, inverse relief on many of the same issues raised in defendants' motion, defendants argue that plaintiffs' motion must be denied on the procedural ground that it was not made within 60 days of the filing of the note of issue, or within the extended period of time agreed to by the parties in a written stipulation dated September 10, 2015.[FN1] Defendants are mistaken. Even if plaintiffs' cross motion was untimely, the Court, on a motion for summary judgment has the discretion to search the record and award relief to a nonmoving party on issues already properly before the Court (CPLR 3212 [a], [b]). Moreover, where, as here, each party has been given ample time to submit papers for the Court's review, and unfettered opportunities to amplify their respective positions on the merits of plaintiffs' causes of action during a series of settlement conferences, both on and off the record, there can be no prejudice to either party caused by the Court's consideration of all submissions (Grande v Peteroy, 39 AD3d 590, 591, 592 [2d Dept 2007]).

Next, in response to plaintiffs' opposition to their motion for summary judgment, defendants note that plaintiffs effectively abandoned their sixth through ninth causes of action sounding in violation of state and federal laws, failure to comply with FOIL requests, promissory estoppel and violation of New York State highway laws, by failing to oppose, or otherwise address, their arguments in support of dismissal of these claims. Defendants are correct on this point, and their motion is granted as to these causes of action.

With respect to plaintiffs' remaining causes of action, which the parties sharply dispute, defendants submit the further affidavit of Petretti, who essentially reiterates his prior assessment that, because the installation of a pipe under Hunter Lane (to carry Clear Brook water flow to the catch basin on the other side of the road) occurred well in advance of the construction of the culvert, the act of connecting the culvert to the catch basin had to have been undertaken by the party that installed the culvert. Further, because the connection was a "do-it-yourself type job, similar to the manner of construction of the culvert itself," which is inconsistent with the infrastructure of other Town projects, either then or since, the connection must have been made by, or under the direction of, the then-Property owner (Petretti further aff, exhibit ff). Petretti again points out that there is nothing to indicate that it was the Town that made the connection.

Defendants also submit a further affidavit from Carosi, who states, among other things, that:

"4. The culvert underneath the Plaintiffs' property is not part of the Town's MS4. The Town did not install the culvert and does not own it . . . the Town does not have a maintenance easement for the culvert . . . and to my knowledge, the Town has never maintained the culvert underneath Plaintiffs' property. The Town does not maintain private culverts installed on private property unless it has executed a maintenance easement with the owner of the property.5. I have reviewed the connection between the box culvert at 16 Hunter Lane and the Town's pipe and catch basis, which operate to conduct water under Hunter Lane. . . . there is no indication that the Town connected its pipe to the catch basis. Rather, it appears that the predecessor owner . . . connected the culvert to the Town's pipe when they built the culvert. The manner of construction is inconsistent with the Town's usual practices for the connection of drainage infrastructure. 6. In my position as the Commissioner of Public Works, I am familiar with [MS4s]. . . [t]he purpose of MS4 regulations and permit is to ensure that municipalities understand their stormwater and sewer discharge systems to prevent the discharge of harmful pollutants. . . . the MS4 permit does not make the Town . . . responsible for maintaining all privately installed culverts on private property simply because natural waterways drain through the private property."

While defendants adamantly deny connecting the 24 inch pipe to the 18 inch culvert, they point out that, even if they had, it would constitute a deficiency in design of a drainage system for which the municipality is completely immune from liability (Zarlin v Town of Clarkstown, 102 AD3d 865, 866 [2d Dept 2013]). As a result, defendants conclude that there is no basis for holding them liable to plaintiffs under either circumstance.

Defendants also point out that the act of placing a pipe or other infrastructure under Hunter Lane to move the naturally flowing water under the roadway, rather than allow it to flow over a public roadway, is not actionable, as it did not alter or increase the natural course of waterflow, a prerequisite for liability (Anchor Brewing Co. v Village of Dobbs Ferry, 84 Hun 274 [1895], affd 156 NY 695 [1898]).

Upon examination of the parties' submissions and consideration of their arguments, both written and presented orally during in-Court conferences, defendants' motion is granted and the cross motion is denied. Plaintiffs, who are understandably alarmed by the situation, offer no evidence that the municipal defendants' use of pipes or ditches increased either the volume, or the velocity of the stormwaters channeled into the catch basin, which, due to a connection between the catch basin and the culvert, are then discharged onto the Property. Rather than competent evidence, plaintiffs offer speculation to support their theories of liability, as their expert's affidavit omits any explanation as to how the Town's use of infrastructure, specifically, its installation of pipework to carry water underground, instead of across a public roadway, affected the volume or velocity of the natural flow of the water. Given that liability is premised on an artificially imposed increased flow of surface water, and/or upon a finding that "the improvements were not made in a good faith effort to enhance the usefulness of the defendants' property," the lack of competent proof that any flooding of the Property "was caused by the construction of artificial channels [FN2] rather than by unprecedentedly heavy rains" (Cashin v City of New Rochelle, 256 NY 190, 194 [1931]) is fatal to their trespass and nuisance causes of action.

The fact that defendants could not find a maintenance easement for the culvert, or any other record relating to the construction of the culvert, or to the attachment of the culvert to the catch basin, does not render their denial of responsibility rank speculation, nor does it render defendants' suggestion that it was a prior owner who constructed the culvert and attached it to the municipal catch basin unreasonable.

"The law presumes that all officers intrusted with the custody of public files and records will perform their official duty by keeping the same safely in their offices, and if a paper is not found where, if in existence, it ought to be deposited or recorded, the presumption thereupon arises that no such document has ever been in existence, and until this presumption is rebutted it must stand as proof of such non-existence"

(Whitfield v City of New York, 16 Misc 3d 1115[A], 2007 NY Slip Op 51433[U], *2 [Sup Ct, Kings County 2007] [internal quotation marks and citations omitted]).

Furthermore, the fact that Lepre noted that the culvert conveys municipal stormwater does not, in and of itself, render the culvert part of the Town's infrastructure. It also does not constitute evidence that it was the Town, rather than the then owner of the Property, who made the connection between the culvert and the catch basin, and Nardecchia fails to provide any explanation for attributing responsibility for this action to the Town. Without evidence that defendants constructed the culvert, connected the culvert to the municipal catch basin, and/or

maintained the culvert, there can be no basis for holding defendants liable for the faulty condition of the private culvert on plaintiff's private property.

There is also no basis for plaintiffs' inverse condemnation cause of action, as they have failed to raise a question of material fact as to whether "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 [*11]owner" (Village of Tarrytown v Woodland Lake Estates, 97 AD2d 338, 343 [2d Dept 1983] [internal quotation marks and citations omitted]). Neither plaintiffs' allegations, which claim intermittent flooding associated with heavy rain events, nor their evidence, which does not support a finding that the Town purposefully diverted water onto the Property, that would otherwise have traveled in a different direction, or connected the culvert to the catch basin in order to discharge water onto the Property, that would otherwise have traveled in a different direction, provide a basis for requiring the Town to purchase the Property (id.).

It is well settled that "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to raise a material question of fact sufficient to require a trial (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), and the lack of sufficient admissible evidence to support plaintiffs' allegations cannot be remedied by counsel's affirmations and oral arguments. A material question of fact is also not raised in plaintiffs' reply papers, including Nardecchia's reply affidavit, which, like his initial affidavit, fails to explain how the Town's use of infrastructure to carry water under the public roadway affected the volume or velocity of natural water flowing onto the Property in periods of heavy rain, a prerequisite for liability (Cachin v City of New Rochelle, 256 NY at 195; Anchor Brewing Co. v Village of Dobbs Ferry, 84 Hun 274, affd 156 NY 695; Beck v City of New York, 23 Misc 2d at 1041, affd 16 AD2d 809).

Accordingly, it is

ORDERED that issues raised and not expressly addressed have been considered by the Court and are rejected; and it is further

ORDERED that plaintiffs' cross motion for summary judgment is denied; and it is further

ORDERED that defendants' motion for summary judgment is granted and the complaint

is dismissed with costs and disbursements as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further

ORDERED that the Clerk is directed to enter judgment accordingly.

This constitutes the decision and order of the Court.

Dated: September 6, 2016

White Plains, New York

_______________________________

HON. DAVID F. EVERETT, A.J.S.C. Footnotes

Footnote 1:Plaintiffs served their motion on or about November 20, 2015, well past 60 days from the filing of the note of issue on July 25, 2015, and approximately three weeks past the extended cut off date of October 24, 2015.

Footnote 2:There is also no basis for liability where the use of pipes "had no other effect than to conduct under the street the water which, in the absence of the [pipe], would have flowed across the surface" (Anchor Brewing Co. v Village of Dobbs Ferry, 84 Hun 274, affd 156 NY 695).