New York State Court of Claims

New York State Court of Claims

BUCHANAN v. THE STATE OF NEW YORK, #2000-004-011, Claim No. 99513


Synopsis


Lateral support lost allegedly caused by riprap failure erosion.

Case Information

UID:
2000-004-011
Claimant(s):
ROBERT BUCHANAN
Claimant short name:
BUCHANAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99513
Motion number(s):

Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
URBANSKI & FLYNNBY: Kevin Flynn, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: James E. ShoemakerAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 28, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
The trial of this Claim was bifurcated by Order of the Court. This Decision addresses the issue of liability.
The Claim alleges in pertinent part:
THIRD: That the time when and the place where the incident happened, out of which this Claim arises is as follows:

(a) That the Claimant owns real property in the Town of Addison, County of Steuben, State of New York, known as 39 Tuscarora Street, Addison, New York.

(b) That the time of the Claim is ongoing since approximately 1950 and continues today.

AS AND FOR A FIRST CAUSE OF ACTION

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2. During the spring of 1950, the State of New York began a project known as the Emergency Bank Protection, which was intended to correct the drainage of the Addison area, especially near the Tuscarora Creek. At that time the Defendant State widened and relocated the channel of the Creek downstream from what is now the abandoned Baltimore and Ohio Railroad Bridge.

3. The defendant State proceeded with this project in a negligent fashion in that the State has, in its attempt to widen and otherwise modify the channel of the Tuscarora Creek, undermined the rock slope of the bank of the Creek, which in turn has allowed the rock slope to settle. The settling has created a shear failure in the slope.

4. The Claimant's property is adjacent to the Tuscarora Creek. The side wall of the creek which is made up of the rock slope has in fact begun to settle, which in turn has damaged the foundation of the Claimant's basement of his home on this property. The result is that the Claimant's three-story house has begun to settle in an uneven manner from the rest of the house [sic], which has resulted in severe property damage.

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6. The defendant State of New York, by and through its New York State Department of Environmental Conservation, has had knowledge and notice of this problem since at least 1993. Despite the complaints of the Claimant, the Defendant has done nothing to rectify the situation.

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8. That the Defendant's negligence is continuing and ongoing.

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AS AND FOR A SECOND CAUSE OF ACTION

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11. The Claimant has notified Defendant of the continuing trespass and damages, but the Defendant has failed to remove the cause of the injury.

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AS AND FOR A THIRD CAUSE OF ACTION

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14. That the injuries complained of are a constant and continuous trespass by the Defendant onto the Claimant's property, and, unless they are abated, the Claimant will continue to suffer irreparable injury. To obtain any redress, the Claimant will necessarily be involved in interminable litigation with said Defendant and will suffer injuries for which continuing and constant damage in successive actions at law will afford him no adequate or appropriate relief.

The State's answer recites, in pertinent part:
AS AND FOR A THIRD

AFFIRMATIVE DEFENSE

11. The Court does not have subject matter jurisdiction over the

claim and personal jurisdiction over the defendant in this claim pursuant to Court of Claims Act § 10 and 11 since a copy of the Notice of Intention and the Claim were not served personally or by certified mail return receipt requested within the time provided by statute.

12. The Notice of Intention was served on the Albany Regional Office of the new York State Department of Law on September 23, 1998 by certified mail, return receipt requested.

13. The claim was served on the Albany Regional Office of the New York State Department of Law on December 18, 1998 by certified mail return receipt requested.

14. Court of Claims Act § 10(3) states:

"A claim to recover damages for injuries to property or for

personal injury caused by the negligence or unintentional tort

of an officer or employee of the state while acting as such

officer or employee, shall be filed within ninety days after the

accrual of such claim unless the claimant shall within such time

file a written notice of intention to file a claim therefor, in which

event the claim shall be filed within two years after the accrual

of such claim".

15. The Claim states in paragraph 6 "the defendant State of New York by and through its New York State Department of Environmental Conservation has had knowledge and notice of this problem since at least 1993. Despite the complaints of claimant, the defendant has done nothing to rectify the situation".

16. It would appear from a reading of the claim that claimant has known about the shear failure in the slope since 1993, and that the claim accrued prior to or no later than 1993. Therefore, since the Notice of Intention to file a claim and the claim were each served and filed more than two years after the claim accrued, the Court does not have personal jurisdiction over the defendant nor subject matter jurisdiction over the claim pursuant to Court of Claims Act § 10 and 11. Since the Notice of Intention and Claim were served improperly under the statute.

[Emphasis in original]

In broad outline, there is little factual dispute.


The Canisteo River flows through the Village of Addison, New York in a west to east direction and the Tuscarora Creek flows northerly towards the Canisteo River to a point where the creek bed angles to the east, at close to 90
Ε
. The creek then flows easterly for some distance before returning to a northerly flow alignment and emptying into the Canisteo River. Claimant's property is located at the top of an embankment close to, but a short distance to the east of, the point where the creek changes its flow alignment from north to east. Thus, Claimant's property was located on the north side of the creek at the top of an embankment. (
see, St. Ex. A and B)

Scott J. Fotie (Fotie), the Department of Environmental Conservation (DEC) Flood Control Engineer for the district within which Claimant's property is located, supplied the construction history of the flood protection project (project), relevant to this Claim. He testified that the construction of the project, by the United States Army Corps of Engineers (Corps) occurred in 1946 and 1947. He described the project as "essentially levees along Tuscarora Creek and the Canisteo River".[1]


According to Fotie in the spring of 1950 New York State did "additional improvements to the project" along Tuscarora Creek,
The channel was widened and relocated to relieve erosion that was occurring, basically at the bank of the creek, near the Buchanan property,...the stream was moved in such a way to relieve the erosive pressure on that stream bank. The stream does a right angle turn there....that, of course, is putting a lot of erosive pressure right on that bank. The State of New York's work done in 1950 was done to soften that bend, to give more flow along the inside bend of that curve to take the pressure off the bank.

Fotie continued, "in addition to the relocation of the Tuscarora Creek channel...also 500 feet of that bank, the left bank of the Tuscarora Creek at the base of the Buchanan property and extending in both directions, was riprapped. It was armored with heavy stone, also for erosion protection".[2]

The Deed by which Claimant took title to the subject property is not in evidence, nor was any proof offered with regard to the location of the subject's south property line.


Claimant testified that he purchased the subject property "approximately" 20 years ago and that he had lived there until approximately two years prior to the date of the trial. Claimant testified that the original dwelling on the subject property was constructed "in 1880 maybe, or prior to that". According to Claimant, after he purchased the property he added an apartment with the result that he owned a "three apartment complex". Claimant's Exhibit 1 is a composite of 20 pictures which, according to Claimant, show damage to the dwelling and an exterior concrete patio which, he testified, was caused by the settling of the embankment slope on the north side of the creek, atop which the dwelling is located. Asked when the "condition of the bank became a concern to you?" he responded, "when I started noticing minor cracks on my back patio and the rocks pulling away from the base of the patio". Asked when that occurred, he responded, "Oh gosh, you're going with dates. Approximately when I noticed the cracks at the river were starting to crack and show faults, I had contacted the Department of Environmental Conservation". Asked when, he responded, "at least five years ago". It was his recollection that representatives of the DEC came to the scene, "probably eight people" and took "notes" and "measurements". Claimant testified that, after this DEC visit, he made several telephone calls to the DEC but he could not recall the names of any of the DEC representatives with whom he spoke. He recalled that he got two letters from the DEC, after the initial visit by DEC representatives, the first of which he misplaced. He believed that he received the second letter, in evidence as Claimant's Exhibit 3, at least 30 days subsequent to the DEC visit. The letter, which is actually a memorandum, is dated September 20, 1993 and Claimant was sent a copy. The memorandum is from an Allan Buddle, identified by Fotie at the trial as "my predecessor", to a Russ Wege, presumably another employee of the DEC. The body of the memorandum follows:
There has been concern about the level of protection in Addison since the Flood Insurance Study was prepared by the Susquehanna River Basin Commission. On December 11, 1992, James Johnson, Chief of the Planning Division in the Baltimore District Corps of Engineers, indicated that a reevaluation of the Addison Flood Protection Project may be included in the federal fiscal year 1994 budget.

In addition to the level of protection and the lack of backup sluice gates on the drainage structures, another problem has been discovered. On the attached drawing titled, "Emergency Bank Protection - Addison, N.Y., an area is shown where it appears that the toe of the rock slope may have undermined, allowing the rock slope to settle. The settling appears to have created a shear failure in the slope, which is showing up as a crack in the basement floor slab just inside the foundation wall. The result is the creek side wall of the three story house starting to settle deferentially from the rest of the house.

The Emergency Bank Protection, as shown on the attached drawing, was a New York State project. During the spring of 1950, the State widened and relocated the channel of Tuscarora Creek downstream from the now abandoned Baltimore and Ohio Railroad Bridge and placed 500 feet of rip rap [sic] for levee toe protection in that reach.

This is a request to include investigation of the apparent slope failure along with other investigations that are being planned for this flood protection project. We would also like you to look at the problem during the annual inspection, which is scheduled for November 15. The property owner's name is Robert Buchanan. His phone number is 607-359-3877.

If there is any questions, please let me know.

(Cl. Ex. 3, [emphasis in original])[3]

Fotie saw this letter for the first time on the witness stand. Asked whether Buddle "indicates...that there is a problem with 38 Tuscarora Street property, or at least the bank at the Tuscarora Street?", he responded, "Well, he uses the word appears a number of times. He says, ‘it appears that there may have been settling'. It appears there may have, I don't see any definitive statements and I guess I would disagree with...his suppositions. But yes, I do see here that he makes a couple of suppositions".


Ray B. Bryant, (Bryant) a professor in the Department of Crop and Soil Sciences at Cornell University testified as an expert on behalf of the Claimant. He went to the subject property on October 19, 1999 on which date he met with the Claimant and viewed the property.


Asked why he went to the subject property, Bryant responded that he was "asked to assess any evidence of erosion at the base of the levee". Noting that he made "several observations" of evidence of erosion "of the face of the levee" Bryant continued,
among these were that the large rocks, that armor the face of the levee, and had been placed there originally for that purpose, were out of alignment, some of them had slid down into the stream...those that were still on the side of the levee were tilted at various angles, unlike where they would have been arranged originally. Some of the rock fragments had been there long enough that they were showing evidence of weathering due to perhaps freeze, thaw and heating and cooling contractions....

Bryant testified that he "found some voids between and underneath the rocks where soil had washed from around the rocks" and he noted "an abnormality in the shape of the face of the levee, which is interpreted as a rotational slump that was a terracette looking kind of feature". Shown Claimant's Exhibit 2, a composite of various photographs of the subject and the embankment, Bryant was asked if any of the photographs showed the "abnormality" and he responded that "it" was ten feet or so above the water level and he referenced photographs 29 and 30 as showing the condition, which he described as "a slight, sort of steepening here, a little bit of leveling and then it's steeper below that and so that little terracette shape right there is in my opinion due to a rotational slump, soil that broke away a short distance up the slope and sort of slid into its present place". Asked, with regard to the abnormality, "what does that say to you?" Bryant responded, "the soil material that is above that area is not being adequately supported. Its been cut and the integrity of the soil above that area is subject to subsidence because of the undercutting at that point", which he attributed to "lack of maintenance of the rock armoring of the levee, which has allowed the stream to erode the face of the levee...". Noting the location of the subject property near the bend in the creek, Bryant opined that "during flood events the water is high and the current is fast, there is a lot of erosional potential in a site like that". Bryant was of the view that the riprap "normally...would have been a deterrent to erosion, but in its present state, with the rocks disoriented, some of them having slipped down into the floor of the stream,...it is not currently effective". Asked if, had the riprap been "maintained", one would observe the same "erosion and undercutting" that he observed, Bryant responded, "I would say not". Asked if the embankment was "repairable", Bryant noted that it could be reconstructed but that "I think it would be very difficult to prevent future subsidence from occurring because of the damage that has already occurred. I mean, you could slow down additional erosions but I think the process of subsidence, once it's begun, is going to continue for some time in the future". Bryant defined "subsidence" as the lowering of land surface "due to some subterranean collapse", adding that he observed what he "interpreted" to be "direct evidence of subsidence...below the concrete patio that's been poured behind the house". He testified that it appeared that the patio had been poured on "a level soil surface" and that the "soil had dropped from beneath that". He then referenced photographs numbers 13, 14, 15, 18, 19 and 20 on Claimant's Exhibit 1 as indications of erosion at or around the patio. Asked, with regard to the patio support, if undercutting, erosion and subterranean collapse would account for a "two or three inch gap, which you observed?" Bryant responded, "it's possible". Asked if he could state "within a reasonable degree of scientific certainty" that the erosion he observed was the result of "lack of maintenance of the riprap?", Bryant responded, "I certainly think the lack of maintenance had contributed to that". Asked where the erosion actually occurred, Bryant testified "the erosion is occurring on the face and probably more so near the base of the levee's face...than higher up, but because of that erosion there is subsidence of the surface." Asked, "had the riprap and the interlocking rocks been property maintained, would you have seen such a degree of erosion, undercutting and collapse?", Bryant responded, "I would say it's difficult to say what might have appeared, had it been maintained, but I certainly believe that an unmaintained riprap is going to be subject to a greater degree of erosion than had it been properly maintained" adding that the erosion that he observed was "due in large part to the lack of maintenance of the riprap".


Bryant testified that the only measurement he took at the scene was the degree of the slope which he found to be 40 degrees, which he found "consistent with other parts of the levee face". Asked about his view "that there is some undercutting of the bank at the creek bed" and whether any of the photographs in evidence "depicted" this condition he responded "It would have been difficult to take a photograph because the damage primarily is below the water level".


On cross-examination, Bryant agreed that he had never observed the State of New York place riprap, he recognized that there were "new technologies" with regard to placing riprap in 2000 as opposed to the year 1950 and he did not know the cost of placing riprap. Asked the number of rocks that he observed in the creek bed, he responded, "at least three" large rocks which, he opined, seemed to be "part of the riprap that had slid into the stream". Asked if any of the photographs showed where the three large riprap rocks "came from" he responded, "not exactly". Bryant thought it "very unlikely" that the rocks that he saw in the creek bed came from somewhere other than the slope at the subject property. He thought that the "bottom of the stream itself was not characterized by large rocks" and opined that the "mechanics of stream flow dictate a certain uniformity of rock size in the bed of the stream". Thus, it was his view that the "few large rocks" that he noted in the stream "appeared to have slid down from the slope and lodged into the bottom of the stream". Asked if he could see "where they slid down from?" he responded, "I could see sufficient holes in places where there were not rocks up on the bank, where they likely came from. There were rocks missing from the riprap". Asked if the photographs showed where the riprap rocks were missing he responded, "I think what shows in the photographs is a fairly substantial grass cover, which would be minimal if the rock armor were still in place". Asked to point out on photographs found in Claimant's Exhibit 2 "where rocks are missing" Bryant referenced photograph number 30 stating, "It does not appear there is a rock in that position or between those two rocks, as examples". Bryant was of the view that grass "grows from the areas where the rock had tilted away to expose the soil surface and allow that to happen". Asked if a "rotational slump" was causing erosion, Bryant responded, "I would not attribute all of the subsidence...to that one feature....The erosion exists in other forms as well. It is not only a rotational slump, which is one form of an erosional feature, but the loss of the soil from around the rocks, the tilting of the rocks, there is other evidence of erosion".


Asked on cross-examination if he knew where water run-off from the subject residents roof "goes", Bryant responded, "nope". Asked if water off the roof "during a heavy rain" could cause damage around "the patio behind his house?" Bryant responded, "I suppose, well any water coming off across the face of the levee could contribute to an erosional process". Although Bryant thought the riprap appeared to be weathered, when asked, "the life of a wall of riprap" he responded, "I do not know". Asked if he was "attributing" the damage to Claimant's residence to a rotational slump "depicted in photograph number 30" Bryant responded "the rotational slump, indirectly, I think it is possible and in my opinion, probable". He noted that the "only clear cut rotational feature" that he could "identify" was as depicted in photograph number 30. Asked about progression in time, Bryant testified, "I think that subsidence is something, in this case anyway, I think it's occurring at a slow rate through time, relatively slow rate through time".


According to Fotie, Claimant's residence sits on a "natural grade, not on a manmade embankment or manmade structure". That clearly is the case. Photograph 24 found in Claimant's Exhibit 2, clearly demonstrates that Claimant's residence and a residence located immediately to the east of Claimant's residence rest on a natural grade and that immediately to the east of both of these residence there is a manmade levee extending to the east. Fotie testified that in 1950 there was "a great deal of erosion approaching the present Buchanan home, just to the east" and that this area of erosion "was filled". The Court finds this was the case, since this area, shown on State's Exhibit B, the Flood Control Map of the Corps is marked, "FILL". Fotie testified that it was the DEC's responsibility to maintain existing riprap and that there were "times when we installed new riprap on previously unprotected banks and times...where we have had to replace deteriorating riprap". With regard to riprap, Fotie testified,
The stone is generally not of uniform shape. In fact, it's desired to be angular....and when properly placed it will look jagged at the surface...generally the stone is placed in such a way that a toe trench, a trench is dug along the base of the slope to be protected. That's called...the toe trench and a layer of stone is put in there. That is the buttress to hold the rest of it up, the slope.

Reference was made to the fact that Bryant measured the slope at the subject property at 40 percent which, according to Fotie "was the design slope...when it was put in. The Corps of Engineers specified and DEC constructed a 40 percent...slope...". According to Fotie he had never previously spoken to the Claimant. Fotie estimated that he had been to Claimant's property, including visits with representatives of the Corps, some ten to twelve times. He testified that he had been to the subject property the day before the trial. Asked his "observations" with regard to the concrete patio slab, he testified
There does appear to be a little bit of soil that has come out below the end lip of the concrete...it is my professional opinion that water is running off the roof of that house. It is a problem to have a large amount of water infiltrate down on a bank and run its way down. It is going to cause erosion from the top down.

According to Fotie,
The back end of that house is within ten feet of the top of the bank. It's very, very close...so basically all of the run-off from storm water, all the rain water that comes off that roof, is landing on that, either right at the edge of the concrete and flowing off or on the soil right at the top....I believe that is much more likely to be the source of that loss of a little bit of soil at the edge of the concrete.

According to Fotie, the State's responsibility for maintenance included "any work necessary to make sure that the project protects the properties from flooding, from high water". Fotie testified that the Corps inspects the property annually and had "never relinquished control". State's Exhibits C through F are documents generated as a result of annual inspections by the Corps in November of 1993, (St. Ex. F) November of 1996, (St. Ex. E) October of 1997, (St. Ex. D) and October of 1998 (St. Ex. C). These documents make reference to "RECURRENT DEFICIENCIES" and "NEW DEFICIENCIES". There is no mention in any of these documents of any problem with the slope at the subject property. On the other hand, since the Corps inspects the subject project annually, one would have thought there would be reports rendered for 1994 and 1995, as well. According to Fotie, representatives of the Corps had looked at "this spot" and "never recommended repair". Asked if he observes "any slope failure, subsidence, erosion or any other structural defect in the Tuscarora Creek bank at the location of the Buchanan property?" Fotie responded, "No I do not". Noting that he had visited the property on the day prior to the trial, Fotie testified "we walked it back and forth to look for any kind of toe erosion, rotational failure, rotational slippage, terracettes or any other descriptions you want to make of the bank, I do not see any of that. In my professional opinion that bank is functioning as was designed". Asked about "erosion at the toe of the slope" Fotie testified "I honestly do not see it and those pictures do not show any erosion at the toe of the slope". Asked about the large rocks that Bryant described as being in the creek bed, Fotie testified,
There is about 420 feet of riprap upstream of the Buchanan property. It is very clear to me...in some high water event in the past, a piece of riprap possibly washed out of that bank, but that has occurred from upstream. Having a couple of rocks in the creek of the base of the bank at the Buchanan property does not indicate that is where they came out of the bank and, in fact, I do not see anywhere in the bank adjacent to the Buchanan property where they would have come out of.

Asked about the "rotational slip or rotational failure" described by Bryant, Fotie testified
what is happening in a rotational failure is due to, usually due to, rotation on the top. You will have...in a circular fashion...the whole thing slump....Generally that is due to weight up on the top, too much weight on the top or too steep of a slope....I suppose theoretically it could, it would be very rare for it to happen from erosion at the toe. More often than not, it is due to weight above.

Asked about "vegetation in and around the riprap", Fotie opined that it is "very normal, it is a natural process", adding, "we are responsible for keeping the woody growth out of riprap. Woody growth is any vegetation that gets big enough to have bark on it and basically that is getting to a size where its root system can start to pry apart the riprap".[4] In short, Fotie was of the view that "With my engineering expertise and my time in this program, I can strongly state that [the riprap] is functioning as it was designed". He was also of the view that had the State not installed the riprap and done the work in the creek bed, "I strongly believe that the house would not still be sitting there. I think all work that has been done by DEC in this area, in this vicinity, has served to prolong the life of that property". Fotie testified that he was aware that Claimant had made requests for further investigation, that the requests were ongoing and that "inspections were done regularly pretty much...to make sure things were not changing. To make sure cracks were not getting bigger or the slopes weren't slipping and in fact they were not". Asked if he disagreed with "Mr. Buddle that, from the inspection of that bank, it appears that the toe of the rock slope may have been undermined, allowing the rock slope to settle?", Fotie responded, "I do. In fact as I said before, there are no pictures here that show me any undermining of the toe that I don't see it out in the field".[5] Asked if he agreed with the statement in the Buddle memorandum that "the settling appears to have created a shear failure in the slope, which is showing up as a crack in the basement floor slab just inside the foundation wall?" Fotie testified, "I would disagree that the settling appears to have created a shear failure in the slope. This next step that is showing up as a crack in the basement floor slab, I won't address because...I do not see a shear failure there going on at all". Asked if he would "dispute" Buddle's statement that "the result is the creek side wall of the three story house, starting to settle, differentially from the rest of the house", Fotie testified,
I would disagree that....In my opinion, that settling is going on as a result of other factors out there such as a concrete slab and other heavy additions being added to the back side of that house and also the factor of the rainfall coming off the roof and saturating the soil at the top.

The photographs in evidence, apparently all taken by the Claimant, clearly demonstrate that the patio, which in point of fact extended from the residence southerly to the very top of the embankment, was cracked in a number of places (
see, Cl. Ex. 1, photographs 9, 10, 13, 14, 18, 19. and 20) Other photographs clearly demonstrate some structural damage, as a result of subsidence, to the residence. (see, Cl. Ex. 1, photographs 1, 2, 3 and 4) Since the trial of this Claim was bifurcated and the issue of damage was not addressed at the trial, these photographs are in evidence simply to demonstrate the subsidence and not the degree of the subsidence of the residence, nor the monetary damage caused thereby. Indeed, during the course of the trial on the issue of liability, the State did not take the position that there had not been subsidence of the residence, but rather defended by arguing that the subsidence was not proximately caused by a failure of the riprap slope caused by any act or omission on the part of the State. That issue of proximate cause is a difficult one because the Court found the two experts who addressed the subject, Bryant and Fotie, straightforward witnesses who simply formed different professional opinions with regard to proximate cause. The burden of proof herein is the Claimant' s and the reality is that all of the photographs found in Claimant's Exhibits 1 and 2, totaling in number 36, while they demonstrate structural damage to the residence and patio do virtually nothing to resolve the issue of proximate cause. Bryant marked two of these photographs (Cl. Ex. 2, photographs 29 and 30) to demonstrate what he regarded as visible evidence of movement on the face of the riprap embankment, whether it is called terracette, a rotational slump, a rotational failure, a subsidence or something else. The fact of the matter, however, is that these photographs demonstrate virtually nothing in that regard. It may well be the case that Bryant observed something, at the location indicated by his photograph marks, that led him to believe there had been some movement at that point on the embankment, but it is not demonstrated by the photographs. That is not surprising, in a sense, because the photographs were taken by the Claimant, not by Bryant, and Claimant makes no claim to soil and soil movement expertise. Be that as it may, it is passing strange that more precise photographs were not taken of this condition that Bryant testified he observed. Further, if the large rocks found in the creek bed at the foot of the embankment at the subject property indeed came from the embankment, it seems to the Court that it would not have been an overwhelming task to locate where those pieces of riprap had been dislodged from the subject embankment and photograph those locations. Further still, it seems to the Court that Fotie's position, that subsidence of the embankment could be caused by undermining at the toe or foot of the embankment, is a point well taken.[6] That toe may have been under water at the time that Bryant visited the property in October of 1999 but, nonetheless, it seems to the Court that some under water exploration could have been done to determine the structural integrity of the toe. Also, there are no gutters edging the roof line on the south side of the subject residence and the roof slopes down to the south. (see, Cl. Ex. 2, photographs 21, 29 and 35) Finally, it is clear that Claimant did construct "artificial additions" adding to the burden on the embankment, consisting of the apartment addition and the concrete slab. It was Claimant's burden to present proof that "that the damaged building did not contribute to the loss of lateral support". (1 NY Jur 2d, Adjoining Landowners, §§ 9 and 11) There was no such proof with regard to the subject building, building addition or the concrete patio.

Quite apart from what the Court views as these evidentiary shortfalls, however, there is a more fundamental issue presented by this Claim and that is whether this Court has jurisdiction to entertain it. Stated otherwise, is the State's third affirmative defense (
see supra, p 3) fatal to this Claim, as a matter of law.

A Claim to recover damages for injuries to property, such as found here, must be filed within 90 days after the "accrual" of such Claim, unless a Notice of Intention is served within that same 90 day period. (Court of Claims Act § 10 [3])

Returning to the Claim (
see supra, pp 1-2) one sees that the gravamen stated therein is negligence and/or continuing trespass. In the first cause of action, the negligent acts of commission complained of allegedly occurred in 1950 when the State "in its attempt" to widen the creek allegedly undermined the rock slope of the embankment at the Claimant's property. The second cause of action is for a continuing trespass, as is the third cause of action, with the added thought in the third that "[t]o obtain any redress, the Claimant will necessarily be involved in interminable litigation with said Defendant and will suffer injuries for which continuing and constant damages in successive actions at law will afford him no adequate or appropriate relief". (supra, p 2) As can be seen, the third cause of action, in effect, bemoans the unavailability of equitable injunctive relief (cf., Psaty v Duryea, 306 NY 413; Cario v Sarr, 41 Misc 2d 297), at least in this Court. (cf., Zanghi v State of New York, 204 AD2d 313)

The Third Department has held:
The phrase "accrual of such claim" in section 10 has been held to have a different meaning than the phrase "cause of action accrued", the former being defined so that statutory time limits do not begin to run until the extent of damages is ascertainable. ...[I]t cannot be said that there exists any hard and fast rule governing the determination of when damages in a given case are ascertainable.

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There is authority for the proposition, however, that where damages are "readily observable and ascertainable ***albeit***indefinite to some extent" a valid excuse for delaying the accrual of the claim is not presented (Heritage Corp. of N.Y. vs. New York State Thruway Auth., 44 AD2d 869).

(Otis Elevator Co. v State of New York, 52 AD2d 380, 382-83)

The service and filing requirements of the Court of Claims Act are jurisdictional and must be strictly construed. (
Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607)

"In case of a continuous or recurring trespass, the claimant cannot recover damages sustained more than 90 days before filing the claim or notice of intention to file a claim. (
Dufel v State of New York, 198 App Div 97; Petzold v State of New York, 202 Misc 255; Simpson v State of New York, 130 NYS2d 804)" (59-304 Realty Co. v State of New York, 48 AD2d 974, 975)

When Claimant received a copy of the Buddle to Wege memo (
supra, pp 6-7) in September of 1993 which recited, among other things, that "the toe of the rock slope may have undermined, allowing the rock slope to settle" and that "the result is the creek side wall of the three story house starting to settle differentially from the rest of the house" (Cl. Ex. 3), that was a red flag not only for the State, but also for the Claimant. Claimant logically may have waited to see what Buddle's "request to include investigation of this apparent slope failure" might have precipitated, but certainly not much beyond "the annual inspection, which is scheduled for November 15". (Cl. Ex. 3)

The Court finds Claimant's vague descriptions of telephone conferences with unknown DEC employees to the contrary, that this Claim accrued in 1993 since damages were ascertainable at that time. True, in 1993 one could foresee increasing damage to the subject property, and in particular the building, whatever the cause, but accepting that as an argument that the Claim had not accrued at that time would mean that the Claim would not actually accrue until the residence was simply a pile of rubble at some undetermined time in the future.


Claimant alleges a "continuing trespass" in his second cause of action and a "continuous trespass" in his third cause of action. (
see supra, p 2) The nature of such a continuous or continued trespass is, in the Court's view, hard to discern. The first problem, of course, is that the Court has no idea where the subject's south property line was located relative to the embankment. Beyond that, however, it is difficult to understand how the factual presentation of the Claimant herein gives rise to a trespass claim. On the contrary, Claimant's basic complaint (assuming that the embankment is on the Claimant's property) is that State representatives did not come on to the embankment and maintain and repair the riprap. In terms of trespass, therefore, something is topsy-turvy here and this is particularly so since there is absolutely no proof that any of the work that the Corps did or the State did in riprapping the embankment or excavating in the channel actually increased the potential for erosion on the subject property. Fotie is almost certainly correct in stating that had the work not been done, Claimant's residence would not be there today. In other words, the incursions by flood waters from the creek against the embankment were trespasses by the powers of nature, not the State.

The Court has viewed the proof in this Claim with two other theories of recovery in mind. With regard to each, the Claim was untimely filed. Under the first, loss of lateral support, the Claim would have accrued at the time that damages had been sustained. (
see, Sherover Constr. Corp. v City of New York, 162 Misc 893; 75 NY Jur 2d, Limitations and Laches, § 196) Thus, under the lack of the loss of lateral support theory, the Claim accrued in 1993 when damages were ascertainable and thus the Notice of Intention served on September 23, 1998 (see supra, p 3) was untimely as a matter of law. The second possible theory considered, although it is a stretch, is a de facto appropriation. (cf., O'Brien v City of Syracuse, 54 NY2d 353) If we, in some respect, regard the episodic flood waters from the creek against the embankment as somehow representing periodic trespasses on the part of the State of such intensity and frequency, and so egregious that a de facto appropriation occurred, it occurred when the Claim accrued and that was when the damages were reasonably ascertainable. (cf., Sweet v State of New York, 114 Misc 2d 269, 271, and the cases cited therein; Pennsylvania Egg Carton Corporation v State of New York [Court of Claims, DeIorio, J., filed June 1, 1978]) Again, that was in 1993. Thus, even if this Claim came within the purview of Court of Claims Act § 10 (1) setting the filing period for an appropriation by the State at three years from the date of accrual, the subject Claim filed in December of 1998 was untimely as a matter of law.

Since the third affirmative defense in the State's Verified Answer sets forth the jurisdictional defense that the notice of intention was served September 23, 1998, the Claim filed December 18, 1998, was untimely. This defense has been preserved and the Claim must be dismissed.


In light of the foregoing, the Claim is dismissed.


ENTER JUDGMENT.


September 28, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
Unless otherwise indicated all quotations are from the Court's trial notes or from the trial electronic recording cassettes.
[2]
State's Exhibit B is a map, "revised June 1972" apparently prepared by the Corps, which illustrates Tuscarora Creek as its alignment changes from north to east. It shows riprap that was placed on the north embankment of the creek and it also shows two areas of excavation in the creek bed. One area of excavation is the inside 90Εangle of the elbow or inside bend of the creek at the point of change in flow direction from north to east. In effect this excavation apparently softened the arch or curve on the east and then south side of the creek as it changed it's direction at that point. The other area of excavation, a much smaller area, was located at the base of the embankment along the north side of the creek and at the base of the illustrated riprap placed on that embankment, immediately below Claimant's property, which is marked with a blue "X" on the exhibit.
[3]
State's Exhibit B (see, fn no. 2, p 5) is entitled "EMERGENCY BANK PROTECTION - ADDISON, N.Y.". There is no "attached drawing" attached to Exhibit B, but it is reasonable to infer that State's Exhibit B is a copy of, or at least similar to, the drawing.
[4]
Both sides agree that periodically inmate crews from the State's correctional system would be brought to the project scene to clear vegetation.
[5]
Noting that Bryant had testified that the creek water level was such that the toe of the slope could not be observed at the time he viewed the property, Fotie testified, "I am not sure how that could be because we were in a major drought last year and the...creek has never been lower".
[6]
Pertinent here is Bryant's testimony that he was asked to assess evidence of erosion at the "base" of the levee (see supra, p 8) and that "the damage primarily is below the water level. (see supra, p 10)