PARTRIDGE v. THE STATE OF NEW YORK, #2000-013-002, Claim No. 90710, Motion Nos.
Purported class action on behalf of Oswego River Basin residents seeking damages
in negligence and inverse condemnation arising from 1993-1995 floods allegedly
caused by operations of New York State Barge Canal, State Thruway Authority and
Canal Corporation. Motion for summary judgment based on compliance with Court
of Claims Act §11, timeliness and res judicata granted in part and denied
in part. Motion for class action certification granted in part and denied in
W. KENT PARTRIDGE and PATRICIA C. PARTRIDGE; ROBERT R. BOLTON and ELAINE V. BOLTON; PATRICIA A. RIZZO and PATSY D. RIZZO, JUDY C. SHAW; BILL BARRETT, d/b/a FISHER BAY MARINA, and JOHN T. MOFFATT and PAMELA K. MOFFATT; Individually and in their own Interests and also on Behalf of a Class of Persons Similarly Situated; and the Additional Named Plaintiffs set Forth on Exhibit A Attached Thereto, Individually and in their own Interest
Footnote (claimant name)
THE STATE OF NEW YORK, THE NEW YORK STATE CANAL CORPORATION, and THE NEW YOUR STATE THRUWAY AUTHORITY
Footnote (defendant name)
PHILIP J. PATTI
HARTER, SECREST & EMERY, LLP
BY: A. PAUL BRITTON, ESQ. KENNETH A. PAYMENT, ESQ.
Attorney General of the State of New York
BY: ROGER B. WILLIAMS, ESQ. Assistant Attorney General
May 31, 2000
See also (multicaptioned
On January 19, 2000, the papers listed on Appendix A were read on Defendants'
motion for summary judgment and Claimants' cross-motion for class action
The Erie Canal was the world's first superhighway. When it opened in 1825
after eight years of construction, it was the longest canal in the world,
stretching 362 miles from the Hudson River in Albany to the shores of Lake Erie
near Buffalo. It had a dramatic effect on the economy of New York State and the
nation, opening what was then an untamed frontier to land-hungry settlers from
crowded eastern cities. By slashing the shipping time from Buffalo to Albany
from 28 days to just 8 days, the canal made it possible for western farmers to
send their produce to Albany and New York City. It also triggered rapid growth
in canal-side cities like Syracuse, Rochester and
Over the next 175 years, the canal was expanded, improved and rerouted in
parts, and became part of the New York State Barge Canal System (hereafter the
"Canal System" or "System"). Though its role as the principal east-west artery
in New York State has been largely supplanted by highways and railways, it
remains a valuable commercial and recreational resource. As this case
demonstrates, the Canal System, like most ambitious ventures, has created its
own set of challenges.
A. The Parties and Claims
Claimants are 281 landowners who allege that their property suffered flood
damage in the springs of 1993, 1994 and 1995 because of Defendants' management
of Canal System water levels during 1992-1995. They are pursuing claims on
their own behalf and on behalf of a putative class of individuals who own
property along the "canalized" waterways of the "Oswego River Basin" -- a region
of rivers, canals and lakes located in Central New York State that are connected
to or part of the Canal System.
that the Canal System management practices of the Defendants were negligent or
grossly negligent and effected a de facto
taking of portions of their
Defendants are (1) the State of New York, which owns the System
(see, Third Claim ¶ 10, Third Answer ¶ 1; NY Const, art
XV, §1); (2) the New York State Thruway Authority, which has had statutory
responsibility for operating the System since April 1, 1992 (see,
Canal Law §5; L 1992, ch 766, §4); and, (3) the New York State Canal
Corporation, a subsidiary of the Thruway Authority which was created in 1992 to
operate and maintain the Canal System (see, Public Authorities Law
§382; L 1992, ch 766, §31) and which, like the State and the Thruway
Authority, is subject to the jurisdiction of this Court (see,
Public Authorities Law §§361-b, 381).
B. The Pending Motions
Before me now are motions filed by each side. In their motion, Defendants seek
partial summary judgment dismissing portions of the claim on the grounds that it
(1) failed to comply with the pleading requirements of Court of Claims Act
§11; (2) was not asserted within the time limits provided by Court of
Claims Act §10; and, (3) is barred by the doctrines of stare decisis
and res judicata
. Defendants also seek dismissal of the class action
aspects of the claim, arguing that Claimants did not pursue certification in a
timely fashion and that class certification is not appropriate for this case.
Claimants oppose Defendants' motion, and, in a cross-motion, have asked me to
certify the proposed class. The parties provided me with excellent but very
in support of the
respective positions and appeared before me in Syracuse for oral argument on
June 17, 1999. Following oral argument, the parties, at my request, entered
into a stipulation dated December 10, 1999, which narrowed the issues and
greatly facilitated the resolution of the pending motions. Upon receiving that
stipulation, I placed this motion on the January 19, 2000 motion calendar.
Before turning to the motions themselves, there are three housekeeping issues
that have to be addressed. First, the parties have stipulated that certain
landowners who were named in the present claim or in one of its predecessors,
are no longer making claims (see,
December 1999 Stipulation,
Schedule A-4). Accordingly, the claims of those landowners, with one exception
are hereby discontinued
Second, James and Catherine Ling are included in the stipulated list of
landowners who are continuing to pursue claims (Schedule A-1). They were listed
in the first and second claims, but were not named as Claimants in the third and
most recent claim.
I have decided to treat
the omission of the Lings from the Third Claim as a simple oversight and to
amend Exhibit A of that claim to include them (see,
see also, Cannon v State of New York
, 163 Misc 2d 623, 626
[contrasting amendments of a claim to cure jurisdictional defects with
amendments to correct a pleading deficiency]; Schwartzberg v State of New
, 121 Misc 2d 1095, affd
98 AD2d 902 [omission of party's
name from caption not a jurisdictional defect]).
Third, the stipulations leave the status of some of the persons listed in the
present claim unclear. These Claimants are not listed in the schedule of
persons no longer making claims or in the schedule of persons who have active
For the purposes of the pending
motions, I am treating them as persons who are interested in pursuing their
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
A. Compliance with Court of Claims Act Pleading
Court of Claims Act §11(b) requires that the claim state "the time when
and place where such claim arose, the nature of same, and the items of damage or
injuries claimed to have been sustained and the total sum claimed." Defendants
argue that the Third Claim falls short of Section 11's requirements in two
respects: (1) it does not adequately identify the "place where such claim arose"
(i.e., the specific properties damaged by floods); and (2) it does
not list the "items of damage... and the total sum claimed" (Court of Claims Act
One must understand the architecture of the Third Claim to understand why it
is, according to Defendants, that the description of the place where the claims
arose is defective. The Third Claim divides the Claimants into two groups. The
first group consists of ten landowners or joint landowners who are designated as
the proposed representatives of the putative class. The Third Claim expressly
provides both the residential addresses of those Claimants and the location of
their flood-damaged property. Each such Claimant is also named in the
The remaining Claimants are not individually identified in the caption or in
the Third Claim itself. Instead, their names and addresses are listed in an
attached Exhibit A. Within the Third Claim itself, they are identified only as
"owners of real property adjoining one or more of the waterways of the Oswego
River Basin of the New York State Barge Canal System [who]... seek compensation
for damages to their riparian properties" (Third Claim¶ 9).
Defendants concede that the Third Claim meets the requirements of Section 11
with regard to the proposed class representatives (Defendants' Memorandum of Law
in Support of Motion for Summary Judgment, pp. 14-15). They maintain, however,
that the claims of all of the Exhibit A Claimants should be dismissed
because the Third Claim provides insufficient information about the "place where
such claim[s] arose" (see, Court of Claims Act §11[b]).
The problem, according to Defendants, is that some of the addresses listed in
Exhibit A do not correspond to the physical location of the Claimants'
flood-damaged property. In fact, some of the addresses are not even located in
New York State. Moreover, Claimants did not expressly allege in the Third Claim
that any of the addresses provided in Exhibit A were the locations of the
Claimants acknowledge that there are problems with the addresses listed in
Exhibit A but assert that they used the best information available when they
filed the claim and that they have worked diligently since that time to provide
Defendants with the proper locations of the affected properties
, January 21, 1999 Affidavit of Carol H. Marzec). They also
maintain that it would be inappropriate to dismiss all of the Exhibit A
Claimants if the Court were to find that the information provided about some of
those Claimants did not satisfy Section 11.
The requirements of Section 11 of the Court of Claims Act are jurisdictional
and must be strictly construed (e.g., Finnerty v New
York State Thruway Auth., 75 NY2d 721). In evaluating whether a claim meets
those requirements, however, a broad construction should be given to the
allegations it contains:
The sufficiency of a claim is to be tested by the provisions and the purpose of
the statute. The object of the statute should be kept in mind and it should not
be given a construction that will defeat the ends of justice. No narrow rule of
construction should be applied to the wording of a claim. That construction
which preserves a bona fide claim so that its merits may be passed upon by a
competent tribunal is to be preferred as against one which rejects it without a
(Harvey Chalmers & Son v State of New York, 271 App Div 699,
affd 297 NY 690.) What is required, in other words, is not
absolute exactness, but simply a statement made with sufficient definiteness to
enable the State to be able to investigate the claim promptly and to ascertain
its liability under the circumstances (Heisler v State of New York, 78
AD2d 767; Grumet v State of New York, 256 AD2d 441; Turpin v State of
New York, Ct Cl, June 8, 1999 [Claim No. 92485, Motion No. M-58816], Read,
P.J., at 5).
I agree with Defendants that it was not enough for Claimants to say that their
damaged properties were located somewhere within the 5,122 square mile Oswego
River Basin. (see,
Third Claim ¶ 27). That area, as
Defendants point out, is about as large as the State of Connecticut (September
21, 1998 Affirmation of Roger B. Williams ¶25). Therefore, where the
addresses provided in Exhibit A did not correspond to the locations of the
Claimants' damaged property, the claims failed to comply with Court of Claims
Act §11 and must be dismissed (see, Cobin v State of New
, 234 AD2d 498, lv dismissed
90 NY2d 925; Grande v
State of New York
, 160 Misc 2d 383; Harris v State of New York and
, Ct Cl, January 6, 2000 [Claim No. 99494, Motion No.
M-60178, CM-60326] Read, P.J.).
The fact that some of the addresses did not match the flood damaged
properties does not mean, however, that all of the claims should be
dismissed. Defendants have not cited to any law that would compel such a
draconian result. Nor have they described in any detail how the incorrect
addresses that were provided for some of the Claimants thwarted their efforts to
evaluate and defend claims brought by those Claimants who did provide correct
addresses (Turpin v State of New York, Ct Cl, June 8, 1999 [Claim No.
92485, Motion No. M-58816], supra; see also,
Cannon v State of New York, 163 Misc 2d 623, supra, at
627 ["Defendant is obligated to investigate, or [to] attempt to investigate, the
accident before it claims it cannot conduct an investigation"]). In those
instances where the addresses corresponded to the location of the damaged
property, I conclude that Claimants have satisfied Court of Claims Act §11
and that their claims should not be dismissed (see, Harvey
Chalmers & Son v State of New York, 271 App Div 699, supra;
Heisler v State of New York, 78 AD2d 767, supra;
Turpin v State of New York, Ct Cl, June 8, 1999 [Claim No. 92485, Motion
No. M-58816], supra).
For those Claimants whose claims were not dismissed in Part A.1. above, the
Third Claim clearly provides an adequate description of the "items of damage"
they sustained (Court of Claims Act §11[b]). In addition to providing the
physical addresses of each of the affected properties, the Third Claim paints a
too-vivid picture of the damage that occurred:
...portions of property of each of the [Claimants] was damaged and permanently
taken by way of erosion or other damage... septic systems were flooded and
plumbing systems became inoperative... wells... [were] poisoned... raw sewage...
flow[ed] against and in some instances inside [Claimants'] homes, and.... sewage
residue, including fecal matter,... [was] deposited on lawns and gardens when
water receded. (Third Claim ¶¶ 54-56.)
Defendants correctly point out that the Third Claim does not state the "total
sum claimed" by Claimants for their losses. That omission does not mean,
however, that the Third Claim must be dismissed. A pleading may comply with the
Court of Claims Act requirements for stating a claim, even though it does not
indicate the dollar amount that the claim seeks in damages (Barski v State of
New York, 43 AD2d 767; Liberty Mutual Ins. Co. v State of New York,
121 AD2d 694; see also, Harvey Chalmers & Son v State of
New York, 271 App Div 699, supra).
Since Claimants did not fall short of Court of Claims Act §11 by omitting
a description of the "items of damage" or by failing to state a "sum claimed,"
this part of Defendants' motion is
Defendants have also challenged the timeliness of Claimants' claims -- an issue
they properly preserved by raising it with particularity in their answers to the
First, Second and Third Claims (see, Court of Claims Act
§11[c][i]; see, Scalise v State of New York, 210 AD2d
916, 917; Sinacore v State of New York, 176 Misc 2d 1; Knight v State
of New York, 177 Misc 2d 181).
1. Filing and Service of the Notices of Intention and Claims
To understand the nature of Defendants' timeliness argument, one must have a
sense of the rather evolutionary way in which the causes of action set forth in
the Third Claim became a part of this case. Claimants prepared three notices of
intention. They filed their first notice of intention, dated July 15, 1994,
with the Clerk of the Court, and personally served it upon the Attorney
General's Office on July 18, 1994. They served additional notices of
intention, dated August 5, 1994 and September 21, 1994, upon the Attorney
General's office on August 8, 1994 and September 23, 1994 and filed them with
the Clerk of the Court of Claims on August 8, 1994 and September 22, 1994.
Each of the notices of intention indicated that the listed Claimants intended
to file claims seeking damages under theories of negligence and de facto
taking for the flooding of their properties along the canals and waterways of
the Oswego River Basin of the New York State Barge Canal System during the
period from April 3, 1994 to May 7, 1994. The first notice of intention (styled
Partridge, et al. v State of New York, et al.) stated that the claims
were to be brought (1) individually by persons who were named in an attachment,
and (2) on behalf of a class of persons and entities who owned flood damaged
property along the canals and waterways of the Oswego River Basin. The
substantive content of the second and third notices of intention was identical
to the first notice of intention. These notices, which were styled Carbone
et al. v State of New York et al. and Howe et al. v State of New
York, simply identified more landowners who intended to bring claims for the
Spring 1994 flood.
Claimants filed their First Claim (styled as a Complaint) and personally served
it on Defendants on December 6, 1994. As foreshadowed by the notices of
intention, the First Claim sought damages for the Spring 1994 floods under
theories of negligence, gross negligence and de facto taking on behalf of
the named Claimants and a class of riparian landowners within the Oswego River
Basin. The First Claim also sought damages on behalf of the same landowners for
flood damage that took place in the Spring of 1993.
Claimants filed their Second Claim (entitled "Claim") and personally served it
on Defendants on August 5, 1996. It was identical to the First Claim, except
that it added and dropped a number of individual Claimants (see,
December 10, 1999 Stipulation, Schedule A-2 [listing landowners added as parties
in the Second Claim]).
Claimants filed their Third Claim (entitled "Amended Claim") and
it to Defendants, who received it on
April 16, 1997. It is identical to the Second Claim except that it seeks
damages for an additional year of flooding (1995) and adds two additional
Claimants as named parties (see,
December 10, 1999 Stipulation,
Schedule A-3 [listing landowners added as parties in the Third Claim]).
2. The Parties' Positions
Defendants argue that all of Claimants' causes of action are untimely to the
extent that they accrued more than 90 days before Claimants filed a notice of
intention or claim relating to them (see, Court of Claims Act
§10). Under Defendants' view, all claims relating to the 1993 and 1995
spring floods would have to be dismissed, as well as some of the later-asserted
claims for 1994 flood damage.
Claimants acknowledge that their claims for negligence and gross negligence are
governed by a 90-day time limitation (see, Court of Claims Act
§10). As such, they concede that the claims relating to the 1993 and
1995 flood years are untimely and must be dismissed. They argue, however, that
there are factual questions as to when the 1994 flood claims accrued that
preclude me from dismissing their negligence and gross negligence claims. They
also maintain that their claims for inverse condemnation are governed by Court
of Claims Act §10, which provides a three-year period for filing claims
for the appropriation of land by the State (see, Court of Claims
Act §10). On this basis, Claimants argue that their de facto
taking claims for each of the three flood years are timely.
I will begin with what is not in dispute. The negligence and gross negligence
claims are dismissed for the 1993 and 1995 floods since the parties agree that
they are untimely. This leaves me with two basic tasks: (1) deciding whether
the negligence claims for the 1994 flood year are timely; and, (2) determining
what time limitation applies to the claims for inverse condemnation.
a. The 1994 Flood Claims
As the moving party, Defendants have the burden of producing admissible
evidence showing that the negligence and gross negligence claims are untimely
(GTF Marketing v Colonial Aluminum Sales, 66 NY2d 965, 967; Buffalo
Retired Teachers 91-94 Alliance v Buffalo Teachers Federation, 251 AD2d
968; CPLR 3212). If Defendants meet that burden, then the burden shifts to
Claimants to demonstrate that there are factual issues requiring a trial (GTF
Marketing v Colonial Aluminum Sales, supra at 968). If
Defendants fail in their initial burden however, their motion must be denied
regardless of the sufficiency or insufficiency of Claimants' papers (Winegrad
v New York Univ. Med. Ctr., 64 NY2d 851, 853; Buffalo Retired Teachers
91-94 Alliance v Buffalo Teachers Federation, 251 AD2d 968
Generally, claims for flooding damage accrue under the Court of Claims Act
when the damage can be fully ascertained (e.g., Sweet v State
of New York, 114 Misc 2d 269; Taylor v State of New York, 302 NY 177,
185; Moltion v State of New York, 193 Misc 850, 855-856,
affd 277 App Div 835, affd 302 NY 177). Typically,
this will be at or about the time that the flood waters subside, revealing the
full extent of the damage (Sweet v State of New York,
supra; Moltion v State of New York, supra).
However, there are situations where it is not possible to determine damages
until a later point in time (see, Dufel v State of New
York, 198 App Div 97, 101-102 [damages to crop land caused by flooding
cannot be calculated until end of growing season]).
Defendants argue here that all of the claims for the 1994 flood year accrued on
or about May 14, 1994 and had to be asserted within 90 days after that date in
order to be timely. Therefore, they maintain that all of the 1994 flood claims
asserted for the first time in the (September 1994) Third Notice of Intention or
in one of the three claims are untimely.
In support of their position, Defendants rely principally upon the Affidavit of
Mr. John E. Zmarthie, P.E., the Division Canal Engineer for the Syracuse
Division, who avers in pertinent part that "...after the spring freshet in 1994,
the waters in Oneida Lake receded sufficiently so that the buoys could be placed
and navigation and the other recreational uses of Oneida Lake could begin,
around May 14, 1994" ( ¶11[j]).
While Mr. Zmarthie's affidavit suggests that the flooding had abated to some
indeterminate degree by May 14, 1994, it does not satisfy Defendants' burden on
this motion. It provides no information about the water levels in any part of
the Oswego River Basin aside from Oneida Lake. It fails to describe the extent
to which the flood waters still covered Claimants' Oneida Lake properties on May
14th, and it does not reveal when it was first possible for those landowners to
ascertain the full extent of the damage (cf., Taylor v State of
, 302 NY 177, 186, supra
). The fact that the water
levels on Oneida Lake were low enough on May 14, 1994 to allow for navigation
and recreational uses simply does not address the critical issues. Accordingly,
Defendants have failed to meet their initial burden of showing that the 1994
flood claims were untimely.
This does not mean, however, that all
of the later-asserted negligence
claims should survive summary judgment. The affidavit of Mr. Daniel Ramsey,
which Claimants submitted in opposition to Defendants' motion, eliminates any
doubt that the damages suffered by Oneida Lake Claimants because of the 1994
spring flood were ascertainable by the end of the 1994 calendar year, if not
sooner (see, e.g.
, Ramsey Affidavit ¶47). Certainly, they
were ascertainable before June 1, 1995 when the 1995
spring floods had
begun to subside (see,
Ramsey Affidavit ¶ 48). Therefore,
the negligence and gross negligence claims asserted for the first time by Oneida
Lake Residents in the Second Claim (served and filed on August 5, 1996) or the
Third Claim (served and filed on April 16, 1997) are not timely and must be
In addition, the 1994 claims of
Mary Beth Dupre and Mark Dupre must be dismissed. Though those Claimants were
listed in the first notice of intention, they were not named as Claimants until
the Third Claim. Thus, their claims are untimely (see,
Claims Act §10).
b. The Inverse Condemnation Claims
Defendants argue that the inverse condemnation claims are "founded in
negligence" or alternatively trespass, and are subject to a 90-day time
limitation (see, Court of Claims Act §10 and
§10[3-b]). If Defendants are correct, then all of the 1993 and 1995
inverse condemnation claims, like the negligence claims discussed above, would
have to be dismissed because they were asserted more than 90 days after they
accrued. Claimants counter that the inverse condemnation claims are timely
because they are governed by the three-year limitation that applies to claims
for appropriation of real property (see, Court of Claims Act
Actions taken against the State of New York for flooding damage have been
resolved under the legal principles applicable to negligence claims
(see, Sweet v State of New York, 114 Misc 2d 269,
supra; Moltion v State of New York, 193 Misc 850,
supra), trespass claims (Dufel v State of New York, 198 App
Div 97, supra; 59-304 Realty Co. v State of New York, 48
AD2d 974), and de facto takings (Reese v State of New York, 190
Misc 316; Weismantle v State of New York, 210 App Div 608; Siegel v
State of New York, 138 Misc 474).
In deciding which legal principles apply here, I must look beneath the "inverse
condemnation" label Claimants have affixed to their first cause of action to
determine the "essence" or "gravamen" of their allegations (Marine Midland
Bank v Jerry Hamam, Inc., 96 AD2d 1137; Staffen v City of Rochester,
80 AD2d 16).
I conclude that the time limitation for negligence claims does not apply to
Claimants' inverse condemnation claims because the claims are framed in terms of
deliberate and intentional conduct. Claimants allege that the flooding was the
product of "purposeful decisions to subordinate the danger to the property of
the plaintiffs to other public interests" such as hydroelectric power and
commercial and recreational navigation (Third Claim, ¶¶48-49,
Whether the inverse condemnation claims sound in trespass or in de facto
taking is a much more difficult issue. The difference between these two types
of interference is a matter of degree. A de facto taking occurs when the
government has intruded upon a private landholder's property, ousted the owner
or otherwise interfered so substantially with the owner's right to use, enjoy or
dispose of the property as to amount to a constitutional taking (O'Brien v
City of Syracuse, 54 NY2d 353, 357; City of Buffalo v J.W. Clement
Co., 28 NY2d 241, 253-255; Stewart v State of New York, 248 AD2d 761;
Carr v Town of Fleming, 122 AD2d 540; Village of Tarrytown v Woodland
Lake Estates, 97 AD2d 338, 343, appeal and cross-appeal
dismissed 63 NY2d 771; Broderick v State of New York, Ct Cl,
March 16, 1998 [Claim No. 86781], Patti, J.). A trespass ordinarily entails an
invasion or interference that is shorter in duration and less pervasive in
scope, or that results in less encompassing destruction or damage (O'Brien v
City of Syracuse, supra; Carr v Town of Fleming,
supra; Stewart v State of New York, supra;
Sassone v Town of Queensbury, 157 AD2d 891).
Factual questions prevent me from determining whether the "inverse
condemnation" claims should be governed by the time limitations applicable to
trespass claims or to appropriations. I cannot tell from the record how long
the flooding affected the Claimants' individual properties or how much damage it
created. Though the parties seem to agree, for example, that the waters of
Oneida Lake were above normal from sometime in late March or early April 1993
until at least the latter part of May, the "Barge Canal Datum" figures that they
provided do not tell me how the abnormal water levels affected each Claimant's
property and for how long (cf., Taylor v State of New York,
supra, 302 NY, at 186). I do not know, for instance, whether the
Claimants' homes were submerged for eight weeks or whether they experienced a
day or two of serious flooding, followed by several weeks of slightly elevated
water levels. Facts such as these are critical if I am to decide whether the
Defendants' alleged invasion was sufficiently substantial and pervasive to
constitute a taking.
There is also too little information provided in Defendants' motion about the
erosion, well contamination, septic and plumbing system flooding, and other
damage alleged in the Third Claim for me to decide whether the first cause of
action should be treated as a trespass or a taking. In many ways, this case is
not unlike Stewart v State of New York (248 AD2d 761,
supra). There, the State argued, as it does here, that a claim
for inverse condemnation was untimely because the claim sounded in trespass.
The Appellate Division determined that there were material issues of fact as to
whether erosion damage suffered by the claimant was substantial enough to
constitute a taking (id., at 762-763; see also,
West v State of New York, 205 Misc 492 [questions of fact as to whether
flooding constituted a trespass or a taking]; American Woolen Co. v State of
New York, 195 App. Div. 698 [same]). If allegations of erosion were
sufficient to raise a factual issue about the nature of the claim in
Stewart, then they are also sufficient to raise a factual issue here.
Accordingly, this part of Defendant's motion is denied.
C. Stare Decisis and Res Judicata
Defendants' stare decisis and res judicata arguments are
addressed solely to the claims brought by persons who live along Oneida Lake or
Oneida River. Understanding these arguments requires some knowledge of Central
New York geography and history and a review of the parties' substantive factual
1. Geographical and Historical
Oneida Lake drains into Oneida River, which flows west from the lake for about
15 miles to Three Rivers. There, it joins the Seneca River to form the Oswego
River. The Oswego River flows north from the Oneida and Seneca Rivers into Lake
Prior to 1952, the State operated a fixed dam at Caughdenoy (the "Old
Caughdenoy Dam"), which was located on the Oneida River approximately five miles
downstream from Oneida Lake. The dam raised the level of the lake and river.
This apparently improved navigation, but did not allow sufficient water to be
released from the lake and river during high flow periods. As a result,
property owners on Oneida Lake frequently filed, and won, cases against the
State for flood-related damage.
In the early 1950's, the State removed the fixed dam at Caughdenoy. About 300
feet downstream from the Old Caughdenoy Dam, the State installed "taintor" gates
that can be raised and lowered to regulate the water level on the river and
lake. In subsequent years, the State, and later the Canal Corporation and
Thruway Authority, kept the gates lowered during the late spring, the summer and
early fall to aid navigation, but raised the gates in early December. Thus, the
taintor gates were raised at the time of the 1993-1995 floods
(see, Zmarthie Affidavit ¶¶ 9, 11, 12).
The Oneida River is not a very straight river. It actually meanders westward
in an S-shaped path from Oneida Lake to Three Rivers. To reduce the distance
that boats using the Barge Canal System have to travel, the State created a
canal, known as Anthony's Cut, which runs in a straight line across one part of
the river's S-shaped turns. Anthony's Cut begins about 1.5 miles downstream
from Oneida Lake and ends approximately two miles downstream from Caughdenoy.
It has a lock, known as Lock 23, which makes it possible for boats to be raised
and lowered to adjust for the different water levels at the two ends of the
2. The Parties' Positions
Like the water levels of the Oneida Lake and the Oneida River, much of the
defense in this cases rises and falls with the movable taintor gates.
Defendants argue that when they raised the gates in December of 1992, 1993 and
1994, they returned the lake and river to a natural state. According to
Defendants, the water levels were controlled when the gates were raised by
natural shoals located in the Oneida River upstream from the taintor gates and
not by artificial means. They assert, therefore, that they cannot be
responsible for the 1993-1995 spring floods.
Claimants challenge the idea that Oneida Lake and the upper portion of the
Oneida River should be regarded as natural waterways when the Caughdenoy taintor
gates are open. According to Claimants, phenomena other than the natural shoals
control the water levels in the lake and the upper part of the river when the
taintor gates are open. Claimants believe that the outflow of water, and in
turn its level, is affected by remnants of the Old Caughdenoy Dam.
Claimants also assert that the flooding that occurred around the lake and upper
river during the Springs of 1993, 1994 and 1995 was caused in large part by
Defendants' water management practices when the Caughdenoy gates were closed in
the Summer and Fall of 1992, 1993 and 1994. They argue that Defendants'
prescribed maximum water levels (known as the 1952 and 1993 Rule Curves) were
set too high and that Defendants routinely exceeded them during the navigation
season. Claimants also maintain that Defendants waited too long after the
navigation season ended to open the taintor gates. They say that the
combination of keeping the water levels too high and waiting too long to open
the gates caused unnaturally large quantities of water to freeze and remain
trapped in the wetlands surrounding the lake during the winter months. When the
spring freshet arrived in each of the relevant years, flooding allegedly
occurred because the wetlands were too saturated with melting ice to absorb the
Claimants also point to a number of things that they say Defendants should have
done to facilitate the outflow of water from the lake, such as dredging portions
of the Oneida River downstream from Oneida Lake. They also argue that Defendants
had a duty to mitigate the flooding once it began by opening Lock 23 on
Anthony's Cut and by exercising the State's contractual rights to open the flood
gates of a private hydroelectric dam located on the Oswego River at Phoenix,
some 28 miles downstream from the lake.
3. The Role of Stare Decisis and Res Judicata
This brings me to Defendants' stare decisis
and res judicata
arguments. Defendants assert that an earlier case, Schloop v State of New
(18 Misc 2d 485, affd
12 AD2d 880, affd,
NY2d 716) established as a matter of fact and law that when the Caughdenoy
taintor gates have been fully withdrawn from the Oneida River at the end of the
navigation season, no liability will attach for the effects of high water along
the shores of Oneida Lake. In Defendants' view, the holding in Schloop
which was affirmed by the Court of Appeals, is conclusive and binding in the
Schloop, which forms the cornerstone of Defendants' argument, was
brought by an Oneida Lake property owner whose property was damaged by an April
1955 flood. The State defended the case with proof (1) that the Caughdenoy
taintor gates were open at the time of the flooding, and (2) that the only
impediment to the outflow of water from Oneida Lake at the time in question was
the "Caughdenoy reef, a natural formation just ahead of the State dam." Former
Judge Major of this Court accepted the State's proof and absolved it of
In the absence of any proof that the State has diverted additional waters into
Oneida Lake over and above that which flowed therein prior to the Barge Canal
era, the State is not liable for any high water which is not in excess of the
elevation to which such water would have risen prior to such Barge Canal
construction. On the days in question, claimant's lands would have been flooded
if nothing had been done by the State; therefore, claimant cannot recover
damages because work of the State failed to prevent flooding [citation
(Schloop v State of New York, supra, 18 Misc 2d, at 487).
Judge Major also concluded that the State had no obligation, under the
circumstances, to open the flood gate at Lock 23 to prevent flooding:
The State was using Oneida Lake and Oneida River for canal purposes only, and
had no obligation or responsibility to maintain the flood gate at Lock 23 for
control of flood waters not caused by the State structures, and the State was
under no duty to exercise flood control. [Iodice v. State of New York,
277 App. Div. 647, affd. without opinion 303 N.Y. 740.]
4. Stare Decisis
I agree with Claimants that stare decisis does not support the dismissal
of their claims -- at least at this juncture. "The doctrine of stare
decisis provides that once a court has decided a legal issue, subsequent
[cases] . . . presenting similar facts should be decided in conformity
with the earlier decision" (People v Bing, 76 NY2d 331, 337-338
[emphasis added]; see also, People v Damiano, 87 NY2d 477,
488 [Simons, J., concurring]). Though I am constrained to apply the legal
precedents of the Court of Appeals and the Fourth Department -- where they are
applicable -- to cases that subsequently come before me, I am not bound to make
the same factual findings just because the earlier case and the case before me
arose in similar circumstances (see, Killeen v Crosson, 218
AD2d 217, 220 [holding that Supreme Court was not required to accept the
findings made in an earlier decision about pay equity among judges from
different counties where the same counties, but different judges, were involved
in the earlier decision]; see also, Reagan v Milonas, 261
AD2d 949 [same]).
Where, however, the material facts in the pending case are identical to those
considered in the earlier case, I must follow the precedent -- even though the
parties in the second case are different than the parties who litigated the
first one (see, Battle v State of New York, 257 AD2d 745,
lv denied, 93 NY2d 805 [holding that an earlier decision
concluding that the Olympic bobsled run was not defectively designed required
dismissal of a later claim brought by different litigants that asserted the same
defective design theory]; Matter of Citizens to Save Titus Mill Pond v
Planning Bd. of the City of New Rochelle, 150 AD2d 774 [holding that the
claim of certain litigants who were challenging the site plan to a marina was
precluded by stare decisis where other litigants had already
unsuccessfully challenged the same site plan on the same grounds]).
Applying the legal principles set forth above leads me to conclude that it
would be premature to decide what precedential effect, if any, the
Schloop case should have upon the resolution of the instant claims. For
me to accept Schloop as controlling precedent, I would have to conclude
that the factors that affected the water level of Oneida Lake in 1954-1955 were
identical to those that played a role in 1992-1995 -- but that is a question
that I will properly be able to answer only after a full airing and
determination of the facts (cf., Reagan v Milonas, 261 AD2d
949). Indeed, a review of the Appellate record from Schloop reveals that
there may be significant factual differences between Schloop and the
present case, and that the parties are raising issues here that the
Schloop courts may not have had an opportunity to consider.
For example, Claimants' submissions suggest that the water levels Defendants
maintained on the lake during the 1992-1994 navigation seasons were often more
than a foot higher than they apparently were during the 1954 navigation season
(compare Ramsey Affidavit, Exhibit C, to Schloop Appellant's brief at 3,
Schloop Respondent's brief at 2). If keeping the water levels high until
early December contributes to ice buildup and affects the spring time absorption
capacity of the lake as Claimants argue, then this difference could be factually
and legally significant.
Claimants also point to some factual circumstances, not apparently considered
by the Courts in Schloop, that could have affected the rate of outflow
from Oneida Lake and the upper portions of the Oneida River. Significant among
these would be the remnants of the Old Caughdenoy Dam, any silt buildup caused
by Defendants' operation of the Barge Canal System, and the role that the State
played in deciding whether to allow a hydroelectric dam to be built on the
Oswego River at Phoenix in 1990. Assuming that these human influences affected
the outflow from and the flood absorption capacity of the lake and the upper
river region, then legal conclusions reached in Schloop about Defendants'
responsibility for the flooding and its obligation to use Lock 23 (or other
means) to facilitate flood abatement might have no application here.
None of Claimants' theories discussed above have, of course, been proved or
disproved at this juncture --but that is just the point. It is impossible for
me to say on the present record whether the holding in Schloop is binding
upon me or even relevant to my resolution of this case. Therefore Defendants'
request to have this case dismissed on the basis of stare decisis is
5. Res Judicata
The doctrine of res judicata
equally inapplicable. Res judicata
, also known as claim preclusion,
holds that, as to parties in a litigation and those in privity with them, a
judgment on the merits by a court of competent jurisdiction is conclusive of the
issues of fact and questions of law necessarily decided therein in any
subsequent action and forecloses the parties from relitigating those issues or
from raising issues or defenses that might have been litigated in the first suit
(Gramatan Home Investors Corp. v Lopez
, 46 NY2d 481, 485; Castaldo v
, 225 AD2d 1080, 1081; Matter of Braunview Associates v
, 227 AD2d 937).
This State has adopted a transactional analysis approach in deciding res
judicata issues (Matter of Hodes v Axelrod, 70 NY2d 364, 372;
O'Brien v City of Syracuse, 54 NY2d 353, 357, supra;
Schwartzreich v E.P.C. Carting Co., 246 AD2d 439, 441). Once a claim is
brought to a final conclusion, all other claims arising out of the same
transaction or series of transactions are barred, even if they are based upon
different theories or seek a different remedy (O'Brien v City of
Syracuse, supra; Matter of Hodes v Axelrod,
supra; Schwartzreich v E.P.C. Carting Co.,
supra). In evaluating what "factual grouping" constitutes a
"transaction or series of transactions" one must evaluate how the facts are
related in time, space, origin or motivation, whether they conform a convenient
trial unit and whether their treatment as a unit conforms to the parties'
reasonable expectations (Smith v Russell Sage College, 54 NY2d 185,
192-193; Matter of Reilly v Reid, 45 NY2d 24, 29; Matter of Hodes v
Axelrod, supra, at 372-373).
Even assuming an identity of parties or privity between Agnes Schloop and
Claimants that case cannot have a res judicata effect upon the instant
case. The "transaction" or cause of action that was before this Court in
Schloop was a 1955 flood, not the 1993-1995 floods at issue in the
present litigation. Although the two sets of floods may be "related" in the
sense that they took place in the Oneida Lake region, they are so thoroughly
removed from one another in a temporal sense that they cannot be regarded as a
"convenient trial unit." Accordingly, res judicata preclusion does not
6. Collateral Estoppel
Collateral estoppel is a species of res judicata, but it has its own
distinguishing characteristics. Unlike res judicata, collateral estoppel
does not require a showing that the issue arose from the same cause of action or
the same transaction as the prior litigation. All that is necessary is that the
identical issue was necessarily raised and decided in the earlier action
(Gramatan Home Investors Corp. v Lopez, 46 NY2d 481,
supra). The doctrine is grounded upon concepts of fairness,
however, and should not be rigidly or mechanically applied where it would be
inequitable to do so (People v Roselle, 84 NY2d 350, 357; D'Arata v
New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664).
Generally speaking, the application of collateral estoppel against a particular
party requires proof (1) that the identical issue was necessarily decided in the
prior action, (2) that the party was also a party to the prior proceeding or was
in some way in privity with the party against whom the prior finding was made,
and (3) that the party to be precluded from relitigating the issue (or his
privy) had a full and fair opportunity to litigate the matter in the earlier
action (D'Arata v New York Cent. Mut. Fire Ins. Co., supra;
Matter of Juan C. v Cortines, 89 NY2d 659, 667). The burden of
demonstrating that the issues raised are identical rests with the proponent of
the estoppel (Ryan v New York Telephone Co., 62 NY2d 494, 501;
D'Arata v New York Cent. Mut. Fire Ins. Co., supra at 666)
while the burden of demonstrating that there was no full and fair opportunity to
litigate rests with the opponent of collateral estoppel (D'Arata v New York
Cent. Mut. Fire Ins. Co., supra; Ryan v New York Telephone
Applying these principles to the current case, I find that Defendants have not
shown that Claimants should be collaterally estopped. It is not clear to me,
for reasons described above in the discussion of stare decisis, that the
parties are now litigating the "identical issue" that was before this Court in
Schloop (see, People v Roselle, supra,
84 NY2d at 357).
Nor is it clear that Agnes Schloop was in privity with Claimants. Although
privity has been described as "an amorphous concept not easy of application"
(Matter of Juan C. v Cortines, supra, at 667 [citing
D'Arata v New York Cent. Mut. Fire Ins. Co., supra];
Gramatan Home Investors Corp. v Lopez, supra, 46 NY2d, at
486), it is typically found to exist where the party against whom collateral
estoppel is asserted is a successor to a property interest, where it controlled
or participated in the prior action though not a formal party to it, or where
its interests were represented by a party to the prior action (Matter of Juan
C. v Cortines, supra, at 667-668).
In the present case, it has not been shown that any, much less all, of the
present Claimants succeeded to Agnes Schloop's interests. Nor is it evident or
even likely that any of the Claimants controlled or participated in the prior
action. Although Defendants argue that Claimants were "represented" in the
prior action by Agnes Schloop, the fact remains that hers was a single claim by
a single landowner seeking damages of no more than $650.00 (see,
Schloop v State of New York, 18 Misc 2d 485, supra). Her
claim was not brought as a class action on behalf of all of the Oneida Lake
homeowners, much less as a claim on behalf of all Oswego River Basin riparians.
As such, it is not apparent that in pursuing her claim, Schloop actually
"represented" any riparian interest other than her own. Thus, it would be
unfair to bind Claimants to the result of that litigation (see,
David v Biondo, 92 NY2d 318, 323-324; Marx v Cuomo, 128 AD2d 965,
CLAIMANTS' MOTION FOR CLASS ACTION CERTIFICATION
A. Threshold Issues
In evaluating the class certification motion, I must navigate waters that are
not well-traveled. Fortunately, they are not totally unchartered. At least
four other class action lawsuits have been brought in the Court of Claims
(see, Brown v State of New York, 89 NY2d 172,
modfg 221 AD2d 681, later proceeding 250 AD2d 314;
St. Paul Fire and Marine Ins. Co. v State of New York, 99 Misc 2d 140,
150; Bertoldi v State of New York, 164 Misc 2d 581; Diaz v State of
New York, Ct Cl, Feb. 4, 1994 [Claim No. 87034], Benza, J.). In two of
these cases, the class allegations were found to be sufficient and classes were
certified (see, Brown v State of New York, Ct Cl,
Aug. 21, 1997 [Claim No. 86979, Motion No. M-55344], Hanifin, J., mod on
other grounds, 250 AD2d 314; St. Paul Fire and Marine Ins. Co. v
State of New York, Ct Cl, Aug. 27, 1980 [Claim Nos. 62098 and 60598-A,
Motion No. M-23920], Weisberg, J.).
Defendants do not here argue, as the State has in the past, that this Court
lacks jurisdiction to adjudicate class action lawsuits (see,
Bertoldi v State of New York, supra, 164 Misc 2d,
at 585). They accept the applicability of CPLR article 9 to claims pending in
this Court, but argue that a class cannot be certified because (1) Claimants did
not make a timely motion for certification, and, (2) the Third Claim does not
satisfy the requirements of Court of Claims Act §11 for the vast majority
of the proposed class of Oswego River Basin landowners. Claimants argue that I
have the discretion to extend the deadline for class certification motions and
further assert that the pleading requirements of Section 11(a) do not apply to
the members of the proposed class.
I will address each of these issues below.
1. Timeliness of Certification Motion
"The explicit design of article 9... is that a determination as to the
appropriateness of class action relief shall be promptly made at the outset of
litigation" (O'Hara v DelBello, 47 NY2d 363, 368). Toward that end, CPLR
902 states that the proponent of class certification "shall move" for
certification "[w]ithin sixty days after the time to serve a responsive pleading
has expired..." (CPLR 902). Where a class certification proponent fails to move
within 60 days, I have discretion to dismiss the class action allegations
summarily (Hernandez v Gateway Demolition Corp., 263 AD2d 467;
Kensington Gate Owners v Kalikow, 99 AD2d 506). I also have discretion
to extend the deadline at any time for good cause shown (3
Weinstein-Korn-Miller, NY Civ Prac ¶902.03; see also,
Meraner v Albany Medical Ctr., 211 AD2d 867, lv dismissed
85 NY2d 968; CPLR 2004).
I find that there is good cause in this case for extending the deadline and for
permitting Claimants' motion to be considered on its merits. Though Defendants
assert that they have been prejudiced by Claimants' delay in bringing the
motion, they have not provided any support for their assertion. Moreover, it is
already clear that a very large number of landowners will remain as Claimants,
whether or not the class allegations are dismissed. Therefore, the Court has an
interest of its own in evaluating whether class certification offers a superior
means of managing this litigation (see, CPLR 901). Accordingly, I
hereby grant Claimants' request for an enlargement of time to move for
certification, and will now consider their application for certification on its
2. Application of Court of Claims Act §11(a) to Unnamed Class
First, I must consider who is potentially eligible to be included in the
proposed class. Conflicting views have been expressed by Judges of the Court
about the application of Court of Claims Act pleading requirements to unnamed
class members. In Bertoldi v State of New York (164 Misc 2d at 585-586,
supra), retired Judge Weisberg reasoned that the pleading
requirements of the Court of Claims Act were trumped by the more liberal
provisions of CPLR article 9. In Brown, on the other hand, Judge Hanifin
took a different approach. He analogized class actions in the Court of Claims
to class action cases arising under the General Municipal Law §50 and
Education Law §3813 and held that each class claimant had, at a minimum, to
be named as a party in the claim to meet the jurisdictional pleading
requirements of Court of Claims Act §11(a) (Brown v State of New
York, Ct Cl Aug. 21, 1997 [Claim No. 86979, Motion No. M-55344] Hanifin, J.,
Having reflected upon the issue carefully, I agree with Judge Hanifin's
analysis and conclude that each potential class member must satisfy Court of
Claims Act §11. In my view, strict adherence to Section 11 in class
actions is compelled by Court of Claims Act §8. There, the State
conditioned its waiver of immunity upon compliance with Court of Claims Act
article 2 -- the article in which Section 11 is found (see,
of Claims Act §8). There are indications in the legislative history of
CPLR article 9 that class actions against the State were
but there is nothing in the
legislative history that suggests that article 9 was intended to alter the
conditions that the State placed upon its immunity waiver.
Accordingly, I hold that the potential class can only include those Claimants
who were found to have complied with Court of Claims Act §11 in the earlier
part of this decision. I now consider whether a class should be
B. Application of Class Certification Criteria
CPLR 901(a) sets forth the prerequisites for bringing a claim as a class
One or more members of a class may sue or be sued as representative parties on
behalf of all if:
1. the class is so numerous that joinder of all members, whether otherwise
required or permitted, is impracticable;
2. there are questions of law or fact common to the class which predominate
over any questions affecting only individual members;
3. the claims or defenses of the representative parties are typical of the
claims or defenses in the class;
4. the representative parties will fairly and adequately protect the interests
of the class; and
5. a class action is superior to other available methods of the fair and
efficient adjudication of the controversy.
(CPLR 901[a].) In evaluating whether these criteria have been met and whether
certification is warranted, the Court must take into account, among other
1. The interest of members of the class in individually controlling the
prosecution or defense of separate actions;
2. The impracticability or inefficiency of prosecuting or defending separate
3. The extent and nature of any litigation concerning the controversy already
commenced by or against members of the class.
4. The desirability or undesirability of concentrating the litigation of the
claim in the particular forum;
5. The difficulties likely to be encountered in the management of a class
(CPLR 902.) Whether a lawsuit qualifies as a class action is a determination
that ordinarily rests within the sound discretion of the court (Small v
Lorillard Tobacco Co., 94 NY2d 43, 52). While each of the criteria
enumerated in CPLR 901 must be met, the Court should construe the requirements
liberally and in favor of certification when to do so is in the interests of
justice and efficient judicial administration (see, Lauer v New
York Telephone Co., 231 AD2d 126, 130; Brandon v Chefetz, 106 AD2d
162, 168-170; Friar v Vanguard Holding Corp., 78 AD2d 83).
I find that Claimants have satisfied the numerosity requirement. Even with the
dismissal of certain landowners' claims in the first part of this decision, the
putative class would affect more that 150 claimants.
While there is no "mechanical test" to determine whether numerosity has been
met (see, Friar v Vanguard Holding Corp,
supra), Professor Moore has found that classes in excess of 40
typically satisfy the requirement (3B Moore's Federal Practice, ¶23.05,
quoted in 3 Weinstein-Korn-Miller, NY Civ Prac ¶901.09). The class of
claimants certified in Brown had only 67 Claimants (see,
Brown v State of New York, Ct Cl Aug. 21, 1997 [Claim No. 86979, Motion
No. M-55344] Hanifin, J. supra).
For the owners of the properties on Oneida Lake or on Oneida River upstream
from the taintor gates, I conclude that the common questions of fact pertaining
to general causation predominate over questions that affect only individual
Claimants. The claims of those property owners turn in large part on whether
Defendants' operation of the taintor gates, its dredging practices on the river
and its failure to remove the Old Caughdenoy Dam remnants played a role in the
high water conditions in the springs of 1993-1995. Individual issues of
specific causation and damages can be determined, if necessary, after the
general causation issues have been tried and resolved.
I do not find, however, that common questions of fact predominate for the other
eleven claimants. Nothing in the record suggests to me that the flooding that
occurred downstream from the taintor gates or in areas not drained by the Oneida
River were affected by any of the issues described above. The only general
liability issue that unifies these Claimants with those from Oneida Lake and the
upper Oneida River is the role that the Phoenix Dam may have played in the
The claims of the proposed class representatives, who are all Oneida Lake
landowners, are typical of the claims of the other Oneida Lake landowners and
upper Oneida River landowners.
Their claims are not, however, typical of the claims of the two Oneida River
Claimants who own property below the taintor gates and dam remnants. Nor are
they typical of the nine Claimants who own land not drained by the Oneida
In fact, the claims of the non-Oneida Claimants may be at odds with the claims
of the Oneida River and Oneida Lake Claimants. The capacity of the Oswego
River, which drains the entire basin, is finite. Theoretically, steps that
Defendants could have taken to increase drainage on the Seneca River could have
taxed the capacity of the Oswego River and interfered with drainage of the
Oneida River and Oneida Lake. If that were true, then the Oneida Lake class
representatives would have an incentive not to emphasize potential Seneca River
flood control measures in presenting this case at trial.
4. Adequacy of Representation
I find that proposed class representative, W. Kent Partridge, would provide
fair and adequate representation of the Oneida Lake and Upper Oneida River
Claimants. According to the Affirmation of Claimants' counsel, Mr. Britton, Mr.
Partridge is President of Concerned Property Owners Against Flooding, an
advocacy organization that has investigated the causes and consequences of
floods in the region (Britton Affirmation, ¶8). During consideration of
the class certification motion, I was impressed with his personal interest and
active participation. I believe that he is committed to carrying this case
through to completion. The law firm Claimants have retained, Harter, Secrest
& Emery, is the third largest firm in Rochester and has an excellent
reputation for handling complex litigation. In addition, the Harter, Secrest
& Emery attorneys who have been handling this case have expertise in the
litigation of flood damage claims, having previously handled a federal court
class action on behalf of Ontario Lake riparians (see, Ketchum
v United States, No. CIV-010ST, WDNY, March 16, 1988 [Telesca, J.]). I
find that they will diligently represent Claimants' cause.
As noted above, I have concerns that the interests of the proposed class
representatives may not be the same as Claimants who do not live on Oneida Lake
or on the Oneida River north of the taintor gates. It would not be appropriate
for Mr. Partridge, or any of the other proposed representatives, to represent
those other Claimants.
5. Superiority and CPLR 902
I conclude that adjudicating this claim as a class action is superior to
allowing it to proceed without certification. Certification assures that all of
the class members will get adequate notice of the pendency of the claim and a
written explanation of their rights (CPLR 904, 907). It also allows me to
evaluate the fairness of any compromise reached by the parties -- a concern in
any litigation of this size (see, CPLR 908).
I have also considered the factors listed in CPLR 902. For reasons described
above, I conclude that the Claimants who do not own property on Oneida Lake or
on the Oneida River upstream from the taintor gates may have an interest in
pursuing their claims separately. Since there are only a few such Claimants and
none are proposed class representatives, I believe that their interests are best
served by severing their claims and trying them separately. For the Claimants
who live upstream from the taintor gates, all of the CPLR 902 factors point to
Based upon the foregoing, it is hereby
ORDERED that a class is certified consisting of those Claimants listed on the
attached Appendix E, all of whom allegedly owned property adjoining Oneida Lake
or on Oneida River upstream of the Caughdenoy Dam and sustained damage to said
properties due to flooding in the spring of 1993, 1994 and 1995; and it is
ORDERED, that the claims of the Claimants who are listed on the attached
Appendix F shall be severed into a separate claim, bifurcated into liability and
damage phases and tried separately from the class claims; and it is
ORDERED, that W. Kent Partridge shall be appointed as representative of the
class; and it is further
ORDERED, that the trial of the class action shall be bifurcated, with a unified
trial on general causation to be tried separately from individual issues of
causation and damages; and it is further
ORDERED, that counsel shall confer for the purpose of establishing a proposed
notice of class certification and a proposed schedule for the completion of
discovery and shall appear before the court for a case management conference on
July 19, 2000, at 10:00 a.m. in Rochester.
May 31, 2000
HON. PHILIP J. PATTI
Judge of the Court of Claims
Papers Relied Upon in Connection with this Motion
Notice of Motion; Affirmation of Roger B. Williams, Esq; Affidavit of John E.
Zmarthie, P. E.
Defendants' Memorandum of Law in Support of Summary Judgment
Defendant's Exhibits in Support of Summary Judgment
Claimants' Notice of Cross-Motion for Class Certification; Affirmation of A.
Paul Britton, Esq. and Annexed Exhibit
Affidavit of Daniel Ramsey and Annexed Exhibits
Affidavit of Carol Marzec and Annexed Exhibits
Memorandum of Law on Behalf of Claimants in Opposition to Motion for Summary
Judgment and in support of Cross-Motion for Class Certification
Defendants' Reply Affirmation to Cross-Motion; Affidavit of John E. Zmarthie,
Affidavit of Jean-Pierre Minois, P.E.
Defendants' Reply Memorandum of Law
Defendants' Supplemental Exhibits in Support of Summary Judgment
Video Tape Submitted by Claimants
Affidavit of W. Kent Partridge, Filed June 1, 1999
Affidavit of James A. Besha, P.E., filed June 7, 1999
Stipulation of the Parties Signed by Claimants on August 11, 1999 and Signed by
Defendants on December 10, 1999
Claimants Dismissed Pursuant to CPLR 3217(b)
Albro, Richard and Constance
Anchorage Marina, Plum
Anderson, Lynn and Maureen
Armani, Robert and Marilyn
Banks, Michael and Margie
Carnevale, Robert and Suzanne
Cecile, Daniel and Lisa
Copeland, Joseph and Rowlinda
Counterman, Rolland and Judith
Cross Lake Boat Club
Dempsey, Arthur J., Sr. and Frieda M.
Dempsey, Art and Julie
Doyle, Maureen and Michael
Dutcher, Sirley Mae
Eastwood-Shedd, Charles and Eunice
Farrar, Neil and Marilynn
Fiorini, Anthony and Sylvia
Fisher, Charles E.
Flanagan, Donald and Kathleen
Frizzi, Alfred and Eileen
Galtieri, James and Joan
George, Al (Oak Orchard Campgrounds)
Haggas, Walter and Bette
Herthum, George and Donna
Horvath, A. L.
Inter Area Action - McIntosh, H
Jaynes, William and Dorothy
Jennings, John J.
Kentkowski, Lawrence E.
Kinanch, Paul and Pauline
Koch, John and Teresa
Koscielniak, John and Pat
Lapoint, Edward and Patricia
Largeny, Arthur and Marie
Latocha, William and Ann
Leimer, Gene and Elaine
Leip, Mildred Frances
McCraith, Daniel J.
McGregor, Ralph and Pamula
Midway Marine, Hart, Gerald L.
Miller, Francis and Leona
Monroe, Roger and Patricia
Mulhern, Lawrence & Sandra
Nagy, Bertha and Gabriel
Nole, Vince and Nancy
Oneida Lake Enterprises and David Spies
Orlowski, Francis and Carol
Paetow, Michael and Sharon
Pawlicki, John and Pauline
Pynn, James B. ( J & S Marine)
Qolan, Dennis and Jeannine
Quinlan, Jim and Penny
Ramsey, Dan (listed as "Shaw Ramsey on
Complaint-claim belongs to Judy Shaw
Ranz, John and Joanne
Reschke, Joseph and Rose
Rudy, Tony and Colleen
Ruscitto, Joseph and Antoinette
Rusitto, Joseph and Gina
Schlegel, Robert and Rita
Schneible's Inn, Carpenter, S.
Schneible, Ann and Lyial
Skinners Harbour Boatyard
Spies, David & Susan
Sunset Park Campgrounds
Szuba, Thomas and Susan
Ten, Eye, J.
Thelen, Peter and Shirley
Turtle, Joseph A.
Urlik, Henry H.
Wattenbe, Stewart and Maureen
Whidden, William and Mary
Winks, Keith and Phyllis
Wozniczka, John and Patricia
Zaborowski, Henry and Mary
Zerrillo, George and Maryrose
Claimants Whose Claims are Dismissed for Failing to Identify
the Location of Their Property Correctly
Adams, Leo A. and Helen
Alden, Michael and Mary Kay
Berdan, Donald and Dorothy
Bielicki, Thomas and Patricia
Bridge, David and Elfrieda
Cardillo, Michael P. and Kathleen
Chapman, Douglas S.
Cimilluca, Samuel and Theresa
Coffey, Gary and Linda
Cook, Donald J. and June M.
Copeland, Warren E. and Jane G.
Cross, William and Elizabeth F.
Cross Lake Park, c/o Dean Cummins
Culkin, Richard and Marion W.
DeMario, Samuel J. and Vera A.
Devan, Richard and Margaret
DiFlorio, Robert E. and Irene
DiMino, Mary Ann
Eno Point Campers Association, c/o Ronald
Farrugia, Joseph and Jane
Fremac Marine, c/o Katherine M. D'Agata
Goeke, John D. and Theresa Miller
Hall, Neil C. Jr. and Louise R.
Hutchinson, Robert and Susan
Johnnies Pier 31, c/o John Hadyk
Kalb, Clifford M.
Lake Oneida Beach Property Owners
Larmer, Carlton E.
Ling, James and Catherine
Mace, Richard E. and Barbara
Marion, Donald F and Sarah
Marx, Eric L. and Karin L.
McComb, Margaret and Dann, Douglas
Mehlek, John P.
Mills, Marty S. and Russell L.
Morgan, Philip L. and Susan T.
Nicolini, Norman E.
Nolan, Dennis and Jeannine
Palmieri, Walt and Donna
Parker, John and Philomena
Proietta, Fred J.
Schramm, Joseph P.
Scott, Ronald and Mary Lou
Still, Jeffrey and Patricia
Stupp, George W. Jr.
Tanner, Robert and Linda
Thompson, Charles and Susan M.
Vanderwerken, Gerald and Debbie
Weatherstone, William and Anne
Webster, Lee and Dawn
White, Paul (Horseshoe Island Pirate's Cove
Whitmoyer, Barbara A.
Wiezalis, Carl and Sheila
1994 Negligence and Gross Negligence Claims
Dismissed on the Grounds of Untimeliness
DePerno, Adeline M.
Hudson, Mark and Josephine Townsend
Wolf, Patrick and Judith
Members of Certified Class
Acchione, Dan and Diane (Joni)
Ackerman, Robert and Barbara
Ackerman, Jess and Roberta H.
Argy, Robert W. and Eileen
Barrett, Conrad and Patricia (Jack)
Bolton, Robert R. and Elaine V.
Brann, Kenneth J and Diane E.
Bratek, Paul and Sherri
Carter, Isbelle A.
Cerone, Donna (Edwards)
Davidson, Kevin and Judy
DeFeo, Joseph and Lisa
Dolinsky, John J. and Elizabeth M.
Dolley, Marie E.
Doolittle, Ivy B.
Dungey, James R. and Patricia L.
Dzikowski, Lucy M. and John
Farrell, Bernard A. and Julia
Foland, Charles F. and Denise M.
Frizzi, Mary T.
Furgeson, Anna M.
Gagliot, Donna L. (Lake Oneida Beach
Greenwood, Bryce J. and Dorothy H.
Groff, Robert C. Jr. and Michelle A.
Gussak, Murray and Patricia
Hall, Earl N. and Joan A.
Hayduke, Daniel D. and Cathleen
Himpler, Ben and Laura
Hughes, Robert J. and Wilhelmina
Jennings, Robert G. and Shirley
Kellogg, Milton, A.
Langenmayr, Arthur L. and Muriel
Larochelle, W.C.I., II and Virginia
LaTocha, John H.
Latoure, John (Seth)
Lodico, Frank J.
Long, John J.
Lowe, William F. and Rose M.
Lussier, Mae D. Rizzo
MaCadam, James A.
Macheda, James R.
Martino, John J. and Josephine M.
McCormick, Terry E. and Marjorie J.
McHale, Robert F. and Sandra S.
Megnin, William C. Jr. and Lynda E.
Metz, Peter G. and Suzanne
Mnich, Raymond and Helen
Moffatt, John and Pamella
Mura, John D. and Mary
Neer, John and Patricia
North, Grant and Linda
Panebianco, M. and Constance
Partridge, W. Ken and Patricia
Petroff, Thomas and Geraldine
Piraino, Al J.
Richards, James J.
Rizzo, Vic and Patsy
Rizzo, Patricia and Patsy
Roberts, Susan J.
Schultz, William and Eunice
Shupe, Marshall and Marlene
Sinclair, David and Anna Marie
Snyder, Joseph and Kathryn
Soukup, Joseph and Margaret
Steinback, Jack and Betty
Stone, John D.
Sutton, John J. and Beverly
Turk, Lee and Sharon
Vinette, Raymond and Nancy
Wahl, Richard and Sandra
Willis, Jerry and Linda
Willis, Robert and Ruth
Young, William and Linda
Zanio, Kenneth P.
Zelesnik, John and Betsy
Persons Whose Claims Are Severed from the Class
Beacon Bay Marina (Cayuga Lake)
Bano, Steven A. (Seneca River)
Garnett, Robert R. (Seneca River)
Gordon, George H. and Thea (Cross Lake)
Jackson Farms, et al., Attention: Dale Trevor (Seneca River and Cross
Lobevero, Richard (Oneida River, Downstream from Taintor Gates)
Monroe, Deborah J. (Oneida River, Downstream from Taintor Gates)
Nadelen, Paul and Barbara (Seneca River)
Riverforest Park, c/o Corrado Gerard (Seneca River)
The information contained in this paragraph derives from the web site of the
Corn Hill Waterfront & Navigation Foundation, www.sampatch.org
As defined by Claimants, the Oswego River Basin is bounded (1) in the west by
Lock 30 in Macedon along Ganargua Creek; (2) in the south by Montour Falls and
Watkins Glenn on Seneca Lake and by Ithaca on the shores of Cayuga Lake; (3) in
the east by the eastern shores of Oneida Lake; and (4) in the north by the
shores of Lake Ontario (Third Claim ¶¶ 21-25). It includes Seneca,
Cayuga, Oneida, Canandaigua, Keuka, Owasco, Onondaga, Skaneateles, Otisco and
Cross Lakes, as well as the Clyde, Seneca, Oneida and Oswego Rivers (Third Claim
Appendix A lists the papers and materials that form the record before the Court
on this motion.
The joint claim of Samuel J. and Vera A. DeMario is listed both on the schedule
of parties who are no longer pursuing claims and on the schedule of parties
whose claims remain active (see,
December 1999 Stipulation,
Schedules A-1 and A-4). I would appreciate it if the parties would clarify the
DeMarios' status. For this motion, I am treating them as parties with active
The Claimants whose claims are dismissed pursuant to this portion of the
decision are listed in Appendix B.
The parties use different names to refer to the operative claim, which is dated
April 10, 1997. Claimants styled this pleading as the Amended Claim, but
Defendants refer to it as the Second Amended Claim because a "Complaint" and a
"Claim" preceded it. For clarity purposes, I will refer to it as the Third
Claim, a term that the parties adopted in their stipulation.
The list of Claimants who fall into this category includes: Sam Anderson, Paul
and Sherri Bratek, Gary and Linda Coffey, and Adeline M. DePerno, John Dietz,
Mary Ann DiMino, Nancy Eastman, Joseph and Jane Farrugia, Mark Hudson and
Josephine Townsend, Robert and Susan Hutchinson, Jackson Farms, Richard
Lobevero, Deborah J. Monroe, Kendall Stackhouse, Thomas Stassi, Jeffrey and
Patricia Still, Paul White, Patrick and Judy Wolf.
Claimants also contend that Defendants waived any objections that they had to
Claimants' compliance with Court of Claims Act §11[a] because of a
so-ordered stipulation that the parties entered into in June 1998 to resolve a
Motion to Compel or Preclude. I have reviewed that stipulation and conclude
that it does not resolve the pleading issues before me in this motion.
The Claimants whose claims were dismissed pursuant to this ruling are listed in
Court of Claims Rule 206.6, which Defendants cite in their papers, does not call
for a different result. Subdivision (b) basically restates the requirements of
Court of Claims Act §11(b) by directing the parties to submit a schedule of
the items of damage claimed and the amount of each item. Subdivision (d), which
requires a specific description of the affected property, including its location
and quantity, applies to formal appropriations, but not necessarily to de
takings or negligence claims. Moreover, noncompliance with a court
rule would not render the Third Claim jurisdictionally defective or necessitate
dismissal (see, Harvey Chalmers & Son v State of New
, 271 App Div 699, 702-703, supra
; Schwartzberg v State
of New York
, 121 Misc 2d 1095, supra
As Defendants interposed no specific objection in their Answer to the Third
Claim to the manner
in which the Third Claim was served, any such
objection is waived (see,
Court of Claims Act
Defendants also rely to some extent upon the statement in Claimants' notices of
intention that the 1994 flood "damages became ascertainable after water levels
subsided from above flood stage on or about May 7, 1994." However, Claimants
have made clear in their response to Defendants' Notice to Admit Truth of Fact
that the waters did not fully recede and the damages did not become fully
ascertainable for weeks or months after that date (see,
to Defendants' exhibits in support of summary judgment at 4).
The Claimants affected by this ruling are listed in Appendix D.
The information contained in this section is derived primarily from four
sources: the September 21, 1998 affidavit of Roger B. Williams; the January 21,
1999 affidavit of Daniel L. Ramsey, II; 1989 Reconnaissance Report for Oneida
lake prepared by the U.S. Army Corps of Engineers (Defendant's Exhibit U); and
the 1999 Caughdenoy Dam Study prepared by TAMS Associates, Inc. (Defendant's
Exhibit S). There were some variations in the geographical information
contained in those reports that were not material to this motion.
E.g., Haskell v State of New York
, 13 NYS2d 192,
258 App Div 930, affd
283 NY 612; Taylor v
State of New York
, 302 NY 177, supra.
Defendants have also submitted proof tending to show that the old Caughdenoy dam
remnants and the Phoenix hydroelectric dam do not contribute to flooding in
Oneida Lake or the upper Oneida River area. Claimants have submitted evidence
tending to show that there are material issues of fact that preclude resolution
of these issues by summary judgment.
In invoking the doctrine of "res judicata
", Defendants did not make clear
whether they were limiting their argument to claim preclusion, or whether they
were using the term in its broader sense to invoke both claim preclusion and the
related but analytically distinct doctrine of collateral estoppel
(see, Gramatan Home Investors Corp. v Lopez
, 46 NY2d 481,
485; Siegel, NY Prac § 442, at 714-715 [3d ed]). I will assume for the
purposes of this motion that Defendants are relying upon both theories.
New York State Department of Social Services, Memorandum
Accompanying Comments on Bills Before the Governor for Executive Action dated
June 13, 1975 at 2; New York State Department of Mental Hygiene, Recommendations
Memorandum dated June 3, 1975 at 2.