New York State Court of Claims

New York State Court of Claims

PARTRIDGE v. THE STATE OF NEW YORK, #2000-013-002, Claim No. 90710, Motion Nos. M-58210, CM-58893


Synopsis


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 part.

Case Information

UID:
2000-013-002
Claimant(s):
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
Claimant short name:
PARTRIDGE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, THE NEW YORK STATE CANAL CORPORATION, and THE NEW YOUR STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
90710
Motion number(s):
M-58210
Cross-motion number(s):
CM-58893
Judge:
PHILIP J. PATTI
Claimant's attorney:
HARTER, SECREST & EMERY, LLP
BY: A. PAUL BRITTON, ESQ. KENNETH A. PAYMENT, ESQ.
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
BY: ROGER B. WILLIAMS, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 31, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision



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 certification.

INTRODUCTION

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 Utica.[1]

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.[2] They allege that the Canal System management practices of the Defendants were negligent or grossly negligent and effected a de facto taking of portions of their riparian properties.

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[2]).

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 voluminous submissions[3] 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.

PRELIMINARY ISSUES
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 noted below,[4] are hereby discontinued (see, CPLR 3217[b]).[5]

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.[6] 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, CPLR 2001; 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 York, 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 claims.[7] For the purposes of the pending motions, I am treating them as persons who are interested in pursuing their claims.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
A. Compliance with Court of Claims Act Pleading Requirements

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 §11[b]).

1. Location

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 caption.

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 flood-damaged property.

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 (see, 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.[8]

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 trial.

(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 York, 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 Brooklyn College, Ct Cl, January 6, 2000 [Claim No. 99494, Motion No. M-60178, CM-60326] Read, P.J.).[9]

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).
2. Damages

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 denied.[10]


B. Timeliness


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 mailed[11] 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[3]). 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[3]). 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[1], which provides a three-year period for filing claims for the appropriation of land by the State (see, Court of Claims Act §10[1]). On this basis, Claimants argue that their de facto taking claims for each of the three flood years are timely.

3. Analysis


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 supra).

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 New York, 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.[12]

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 dismissed.[13] 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, Court of Claims Act §10[3]).


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[3] 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 §10[1]).

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, 57-58).

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 positions.

1. Geographical and Historical Perspective[14]

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 Ontario.

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.[15]

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 cut.

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 additional water.

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 York (18 Misc 2d 485, affd 12 AD2d 880, affd, 10 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 present controversy.[16]

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 liability:
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 omitted].

(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.]
(id. at 487.)
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 denied.
5. Res Judicata

The doctrine of res judicata[17] is 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 Harrington, 225 AD2d 1080, 1081; Matter of Braunview Associates v Unmack, 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 apply.

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 Co., supra).

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, 966).

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 merits.

2. Application of Court of Claims Act §11(a) to Unnamed Class Claimants


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., supra).

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, Court of Claims Act §8). There are indications in the legislative history of CPLR article 9 that class actions against the State were contemplated,[18] 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 certified.

B. Application of Class Certification Criteria


CPLR 901(a) sets forth the prerequisites for bringing a claim as a class action:
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 relevant factors:

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 actions;

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 action.

(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).

1. Numerosity

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[1], 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).

2. Predominance


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 diluvial conditions.

3. Typicality

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 River.

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[2]). 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 certification.

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 further

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 further

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
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims


APPENDIX A
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, P.E.

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


APPENDIX B
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

Barbato, Violet

Barrett, Judy

Berger, Maureen

Bettile, Jerome

Blakely, Kelly

Blood, Richard

Boyea, Edna

Brown, Deborah

Bzdick, William

Cahill, Joseph

Carbone, T.D.

Carnevale, Robert and Suzanne

Carpenter, Sandra

Cecile, Daniel and Lisa

Cimulla, John

Coleman, Wiliam

Congden, Phil

Conley, Thomas

Cooper, Arthur

Copeland, Joseph and Rowlinda

Counterman, Rolland and Judith

Cross Lake Boat Club

Daggert, Glenicee

Dempsey, Arthur J., Sr. and Frieda M.

Dempsey, Art and Julie

DePasquale, Anthony

Dixon, Gene

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

Foland, Gene

Frizzi, Alfred and Eileen

Galtieri, James and Joan

George, Al (Oak Orchard Campgrounds)

Greiner, Helen

Haggas, Walter and Bette

Hall, Ricky

Harrell, Hubert

Hart, Gerald

Herthum, George and Donna

HJL, HJ

Holoczenki, Borip

Honle, Robert

Hooper, Robert

Hopkins, Dorthea

Horvath, A. L.

Howe, Curtis

Hubel, Joseph

Inter Area Action - McIntosh, H

Isgar, Jean

Jarvis, Clayton

Jaynes, William and Dorothy

Jennings, John J.

Kentkowski, Lawrence E.

Kernan, Edward

Kinanch, Paul and Pauline

Koch, John and Teresa

Koscielniak, John and Pat

Ladd, Mike

Lanni, Frederick

Lapoint, Edward and Patricia

Largeny, Arthur and Marie

Larrabee, Marleen

Latocha, William and Ann

Loutore, Joseph

Leaye, Anthony

Leimer, Gene and Elaine

Leip, Mildred Frances

Lester, Thomas

Lindauer, Ruth

Lueck, Elaine

Marcellus, Clyde

McCraith, Daniel J.

McDonald, Vince

McGilley

McGregor, Ralph and Pamula

McIntosh, Donna

Medgj, Thomas

Midway Marine, Hart, Gerald L.

Miller, Francis and Leona

Monroe, Roger and Patricia

Morse, Philip

Mulhern, Lawrence & Sandra

Murray, Frank

Murray, Gersch

Murray, Leita

Murray, Rita

Nagy, Bertha and Gabriel

Nichols, Robert

Nole, Vince and Nancy

Oneida Lake Enterprises and David Spies

Individually

Orlowski, Francis and Carol

Paetow, Michael and Sharon

Pawlicki, John and Pauline

Pendorf, Mary

Perilla, Tony

Pinkarski, F.W.

Porter, Robert

Prawl, Gerald

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

only)

Ranz, John and Joanne

Reicher, John

Renne, Bernadette

Reschke, Joseph and Rose

Riggeri, Arnid

Rudy, Tony and Colleen

Ruscitto, Joseph and Antoinette

Rusitto, Joseph and Gina

Rustrom, Robert

Ryder, Caroline

Salanger, Robert

Schlegel, Robert and Rita

Schneible's Inn, Carpenter, S.

Schneible, Ann and Lyial

Schulf, Edward

Sciechrtam, Ralph

Shaw, Denise

Skinners Harbour Boatyard

Speickhoff, Catherine

Spies, David & Susan

StAngelo, Beverly

Stark, Ted

Sunset Park Campgrounds

Szuba, Thomas and Susan

Taddeo, Frank

Tasse, Thomas

Ten, Eye, J.

Thelen, Peter and Shirley

Thompson, B.

Tohil, Charles

Turtle, Joseph A.

Urlik, Henry H.

Warren, Jean

Wattenbe, Stewart and Maureen

Whidden, William and Mary

Wilhowski, Fred

Willes, Ray

Winks, Keith

Winks, Keith and Phyllis

Wos, Ronald

Wozniczka, John and Patricia

Yannock, Beverly

Zaborowski, Henry and Mary

Zerrillo, George and Maryrose

APPENDIX C

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

Aleschus, John

Balduf, Gordon

Berdan, Donald and Dorothy

Bielicki, Thomas and Patricia

Blood, Patricia

Bridge, David and Elfrieda

Cardillo, Michael P. and Kathleen

Celestian, Katherine

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

Dietz, John

DiFlorio, Robert E. and Irene

DiMino, Mary Ann

Eastman, Nancy

Ellinger, A.E.

Eno Point Campers Association, c/o Ronald

Gassler

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.

Mura, Amy

Nicolini, Norman E.

Nolan, Dennis and Jeannine

Palmieri, Walt and Donna

Parker, John and Philomena

Proietta, Fred J.

Rogers, Murray

Schillo, Margaret

Schramm, Joseph P.

Scott, Ronald and Mary Lou

Stackhouse, Kendall

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

Marina, Inc.)

Whitmoyer, Barbara A.

Wiezalis, Carl and Sheila

APPENDIX D
1994 Negligence and Gross Negligence Claims

Dismissed on the Grounds of Untimeliness

Anderson, Sam

DePerno, Adeline M.

Hudson, Mark and Josephine Townsend

Monroe, Deborah

Wolf, Patrick and Judith


APPENDIX E
Members of Certified Class

Acchione, Dan and Diane (Joni)

Ackerman, Robert and Barbara

Ackerman, Jess and Roberta H.

Aero Marina

Argy, Robert W. and Eileen

Baniak, Ron

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)

Chrislin, Alexander

Davidson, Kevin and Judy

Davis, Richard

Dean Cummins

DeFeo, Joseph and Lisa

DiFlorio, Edward

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

Property Owners)

Georgianna, Joseph

Goetz, Marie

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

Mitchell, Christine

Mnich, Raymond and Helen

Moffatt, John and Pamella

Mott, Marian

Mula, Donald

Mura, John D. and Mary

Myers, Dolores

Neer, John and Patricia

North, Grant and Linda

Panebianco, M. and Constance

Partridge, W. Ken and Patricia

Petroff, Thomas and Geraldine

Piraino, Al J.

Reck, George

Richards, James J.

Rizzo, Vic and Patsy

Rizzo, Patricia and Patsy

Roberts, Susan J.

Ruffo, Deborah

Schmid, Paul

Schreppel, William

Schultz, William and Eunice

Shaw, Judy

Shortell, Jeanette

Shupe, Marshall and Marlene

Sinclair, David and Anna Marie

Snyder, Joseph and Kathryn

Soukup, Joseph and Margaret

Stassi, Thomas

Steinback, Jack and Betty

Stone, John D.

Sutton, John J. and Beverly

Thompson, Gayle

Togni, Ronald

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



APPENDIX F
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 Lake)

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)





[1]
The information contained in this paragraph derives from the web site of the Corn Hill Waterfront & Navigation Foundation, www.sampatch.org.
[2]
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 ¶¶ 26-27).
[3]
Appendix A lists the papers and materials that form the record before the Court on this motion.
[4]
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 claims
[5]
The Claimants whose claims are dismissed pursuant to this portion of the decision are listed in Appendix B.
[6]
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.
[7]
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.
[8]
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.
[9]
The Claimants whose claims were dismissed pursuant to this ruling are listed in Appendix C.
[10]
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 facto 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 York, 271 App Div 699, 702-703, supra; Schwartzberg v State of New York, 121 Misc 2d 1095, supra).
[11]
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 §11[c][ii]).
[12]
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, Exhibit K to Defendants' exhibits in support of summary judgment at 4).
[13]
The Claimants affected by this ruling are listed in Appendix D.
[14]
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.
[15]
E.g., Haskell v State of New York, 13 NYS2d 192, affd 258 App Div 930, affd 283 NY 612; Taylor v State of New York, 302 NY 177, supra.
[16]
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.
[17]
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.
[18]
See, 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.