New York State Court of Claims

New York State Court of Claims

COOPER v. THE STATE OF NEW YORK, #2004-019-503, Claim No. 105163, Motion Nos. M-67338, CM-67722


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
LINDENFELD LAW FIRM, P.C.BY: Frank A. Sarat, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for partial summary judgment on the issue of liability pursuant to CPLR 3212. The defendant State of New York (hereinafter "State") opposes the motion and cross-moves for summary judgment pursuant to CPLR 3212 as well.

Claimants are property owners near the intersection of State Highways Route 10 and Route 20 in the Village of Sharon Springs, Schoharie County, New York. Each of these claimants allege property damage, real and personal, resulting from severe flooding that occurred from April 8, 2001 through April 16, 2001. Claimants allege that this flooding was due to the State's negligence in failing to properly maintain Old Maids Hole, as will be described in further detail hereinbelow. For purposes of the discussion of these motions, the court will describe the area at issue in order to place the parties' respective arguments into context:

Old Maids Hole
: Old Maids Hole (hereinafter "OMH") is an underground karst - or limestone - cave which is situated on land located in the Village of Sharon Springs. OMH is not owned by the State.[1] The entrance to OMH is visible from aboveground and is located approximately 40 to 50 feet north of Route 20. The entrance itself, as depicted in submitted photographs, is a rather modest looking ditch or hole, underneath which, however, lays a vast cavern with multiple chambers that are accessible only by ladders.

Route 20
: Route 20 is a east/west roadway constructed by the State in the 1920's. In 1937, the State installed a closed drainage system for Route 20 which directs water from Route 20 to OMH. This system drains approximately 1200 feet of Route 20 into said drainage system which ultimately leads into OMH. The State has a right-of-way along Route 20 through the Village of Sharon Springs.

Drainage Easement
: In 1937, at the same time it installed the closed drainage system on Route 20, the State purchased a perpetual drainage easement over a private parcel of land adjacent to Route 20. The purpose of the easement was to locate a culvert outlet ditch on said property to run underneath Route 20 to the entrance of OMH. More specifically, said easement states, in part, as follows:
[a] perpetual easement for the purpose of locating a culvert outlet ditch, in and to all that piece or parcel of land, situate in the Town of Sharon, County of Schoharie, State of New York, for the reconstruction of the Cherry Valley - Sharon Springs State Highway No. 8064, to be obtained from George Best (reputed owner).

The Division of Highways of the New York State Department of Public Works, its agents and contractors, doing work for the Division shall have the right to enter, excavate and do any and all such work as may be necessary.

The method or amount of work done on this land shall not be limited and all work shall be held within the limits of the piece or parcel described as follows: [description omitted].

(State's Exhibit C; emphasis added).

Bowmaker Pond
: Bowmaker Pond is located within the Town of Sharon Springs and has existed for over 70 years. Bowmaker Pond is located to the south of OMH. Route 10 runs along the westerly side of the pond. In the 1970's, Bowmaker Pond was breached causing sediment previously dammed in the pond to flow into OMH. In 1974 the Town of Sharon began to plan a reconstruction of the dam at Bowmaker Pond, but the project was never completed. The project was resurrected and completed in the late 1990's with the primary goal of providing a fishing and wildlife refuge recreational area. The Town of Sharon was the sole entity responsible for said project. Bowmaker Pond contributes to OMH flow.

Route 10
: Route 10 is a north/south roadway intersecting with Route 20. Route 10 travels along the western portion of Bowmaker Pond and travels northbound to its intersection with Route 20, the intersection of which is located to the east of OMH. Route 10 was built in 1931, including a ten-foot high embankment constructed between Route 10 and Bowmaker Pond.

Additionally, with respect to the State's past actions in and around OMH, claimants have submitted affidavits, deposition transcripts, letters, e-mails, testimonials, newspaper and newsletter clippings from various individuals and organizations, and photographs, all in an attempt to establish that the State had continuously cleared brush, debris and sedimentation from OMH for 60 years starting in the 1930's through 1991, as well as making various promises to the claimants herein in connection with such activities.

On a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). For the purposes of a summary judgment motion, the factual allegations of the opposing party must be deemed true and granted every favorable inference. (Bershaw v Altman, 100 AD2d 642, 643; Roberts v Town of Colchester, 139 AD2d 819, 820-821; Barber v Merchant, 180 AD2d 984, 986). Keeping this principle in mind, claimants' allegations relative to the State's history of clearing brush, debris and sedimentation from OMH, both above and below ground, between the 1930's through 1991 will be deemed true for the purposes of discussion herein.

The parties focus on three legal arguments in support of their respective motions, namely (1) the applicability of Highway Law § 46; (2) whether a special relationship between claimants and the State was created by the DOT's actions and promises; and (3) the State's role in diverting and increasing surface water flow into OMH. The court will take each argument in turn.

  1. Highway Law § 46
Claimants take the position that Highway Law § 46 imposed a duty on the State to maintain OMH or at least did not prevent the State from assuming such duty, while the State contends that the statute is inapplicable. Highway Law § 46, as amended in 1970, states, in pertinent part, as follows:
[a] state highway may be constructed, reconstructed or improved through a village so as to form a continuous highway on the state highway system.


For all the purposes of this section, the jurisdiction of the commissioner of transportation shall extend over the entire property affected by the provisions hereof during the period of construction, reconstruction or improvement, as such jurisdiction has been obtained or may hereafter be obtained pursuant to the provisions of this chapter. After the completion and acceptance of the work of constructing, reconstructing or improving of a state highway passing through a village, the state shall maintain and have jurisdiction over the pavement area of such highway and may assume maintenance responsibility and have jurisdiction over such other highway right of way areas as the commissioner of transportation shall determine, by official order, are necessary for the maintenance and protection of such highway facility. No additional points of access to, or exit from, such highway facility shall be made without prior written approval by the commissioner of transportation. Any sidewalks, sewers [footnote omitted], water mains, curbs, paved gutters, conduits, facilities and appurtenances that are provided pursuant to this section, shall be maintained or shall be continued to be maintained, as the case may be, by the village in which they are located, or by the agency or other unit owning or having control and jurisdiction thereof except the state shall maintain any drainage ditches and storm sewer facilities which are constructed primarily to service the state highway facility.

(Highway Law § 46; emphases added).

The statutory construction for this provision, both before and after the 1970 amendment, was addressed by the Third Department in Mason v State of New York, 180 AD2d 63. Prior to the 1970 amendment, the Third Department determined that "[t]he responsibility for maintaining drainage facilities and areas outside the traveled or commonly used portions of the highway fell upon the village wherein the roadway was located [citation omitted]." (Mason, 180 AD2d at 65). After the 1970 amendment, however, the court noted that "[w]hile the Legislature continued the villages' primary duty to maintain curbs and paved gutters, it expressly required the State to 'maintain any drainage ditches and storm sewer facilities which are constructed primarily to service the state highway facility [citation omitted]'." (Id.; emphasis in original).

In reviewing this statute in view of the circumstances of this case, it is clear that OMH is not located within "the pavement area of such highway" and, as such, does not fall within the provision of Highway Law § 46 that mandates "[t]he state shall maintain and have jurisdiction over the pavement area of such highway." (Highway Law § 46). Nor does this case fall within the purview of the final proviso of the statute since under no scenario can OMH, a pre-existing natural karst topographical feature, be considered to have been constructed in the first instance nor constructed primarily to serve the State highway facility. In fact, claimants concede this point. (Claimants' Memorandum of Law, p 9). Accordingly, the final proviso of Highway Law § 46 is inapplicable to this case.

Rather, claimants focus is on the permissive portion of Highway Law § 46 which indicates the State "[m]ay assume maintenance responsibility and have jurisdiction over such other highway right of way areas as the commissioner of transportation shall determine, by official order, are necessary for the maintenance and protection of such highway facility." (Highway Law, § 46). Claimants concede that no official order of the Commissioner of Transportation was ever issued in this matter. Nevertheless, claimants assert that the statute "[d]oes not prohibit the State from assuming such a duty by easement or by prescription." (Claimants' Reply Memorandum of Law, p 5; emphasis in original). In other words, claimants argue that the State's acquisition of the 1937 easement and maintenance history may be deemed the equivalent of an "official order". This court disagrees.

Claimants suggest that case law addressing the presumption of government regularity permits this court to make this connection, but has offered no case law from which the court could conclude that a statutory reference and requirement of an "official order" means anything other than what it says. Further, claimants argue that the language of Mason left open the possibility that the State could assume the duty of maintenance in some fashion other than by an official order. Finally, the court notes claimants' own conclusion that "[i]ndeed, § 46 has been largely a red herring in this lawsuit." (Claimants' Reply Memorandum of Law, p 6). In any event, this court will not equate the State's acquisition of the 1937 drainage easement or other activities to an official order of the Commissioner of Transportation as required by the statute. This court does not agree with claimants' reading of Mason and finds the language referring to the assumption of a duty pertains to such assumption by way of official order and no other. In sum, this court finds that Highway Law § 46 is inapplicable under these circumstances and does not impose a duty on the State to maintain OMH.

  1. Special Relationship
Next, claimants argue that even if Highway Law § 46 is found inapplicable, then the State should be deemed to have created a special relationship with them to maintain OMH. More specifically, claimants assert that a special relationship was created by the following: (1) the State's removal of debris from OMH from 1937 through 1991; (2) the State's acquisition of a drainage easement in 1937; (3) the installation in the late 1930's of the closed drainage system relative to Route 20; and (4) the State's change of surface water flow relative to Route 10. In opposition, the State contends that none of these actions or events, individually or collectively, equate to the creation of a special relationship with these property owners.

It is well settled that the necessary elements for establishing a "special relationship" between a municipality and an individual are:
(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking [citations omitted].

(Cuffy v City of New York, 69 NY2d 255, 260). In accepting claimants' allegations as true, it is clear that the State removed brush, debris, and sedimentation from OMH, above and below ground, from 1937 through 1991. It is the legal conclusions that flow from these actions with which the parties disagree.

The first element requires an "[a]ssumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured". (Cuffy, 69 NY2d at 260). The third element requires "direct contact" between the State and claimants herein, although it has been recognized that this requirement should not be applied in an overly rigid manner. (Cuffy, 69 NY2d at 261). In this court's view, the common thread in these two elements, overlooked by claimants, is that the duty assumed must have been "to act on behalf of the party who was injured". Claimants' arguments relative to "direct contact" are summarized by their contention that "[t]he direct contact requirement has been satisfied by the State's extensive prior formal communication with local officials, as well as by decades of informal observation of the State's activities, conversations, and reliance by local residents upon the State's maintenance of OMH." (Claimants' Reply Memorandum of Law, p 3; emphasis added). This statement is also instructive on the first element. In other words, claimants allege that the dealings between the State and local officials (Village and/or Town) are the equivalent of dealings between the State and claimants themselves. This court disagrees.

Again, the court accepts claimants' recitation of the history of the State's clearing of debris from 1937 through 1991 and the fact that the State offered guidance and assistance to local officials after 1991 in solving the flooding problems around OMH. However, contrary to claimants' arguments, these actions did not convert the State's duty to the public at large to a duty to claimants as "adjoining land owners [as] a discreet and readily identifiable class of persons." (Claimants' Memorandum of Law, p 8). Claimants argue that the history of clearing debris; the existence of the easement; the construction of Route 10 that redirected the flow of a stream into OMH; and the pre-flood collaborations between State and local officials were all taken on behalf of claimants and are proof of this special relationship.

In this court's view, even accepting all of claimants' allegations as true, none of the State's actions referenced by claimants were undertaken on behalf of claimants, but rather in relation to the State's duty to the traveling public at large in relation to the flooding of Route 20. The majority of the contact was between the State and Village and Town officials. There is nothing in this record establishing that these local officials were acting strictly on behalf of these property owners as a finite group, rather than on behalf of the traveling public and the Village and Town citizenry as a whole. As such, this court finds that claimants have failed to establish both the first and third elements required for the formation of a special relationship.

Furthermore, even if claimants had established these elements, the court finds that the fourth element is lacking, namely whether claimants justifiably relied on the State's affirmative undertaking. The Court of Appeals has described this fourth element as:
[t]he essential causative link between the "special duty" assumed by the municipality and the alleged injury. Indeed, at the heart of most of these "special duty" cases is the unfairness that the courts have perceived in precluding recovery when a municipality's voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced him either to relax his own vigilance or to forego other available avenues of protection [citations omitted].

(Cuffy, 69 NY2d at 261).

Here, the court finds that claimants have failed to establish that their injuries were the result of their justifiable reliance on the assurances and actions - or inactions as the case may be - of the State. (Cuffy, 69 NY2d at 263). For purposes of discussion, the court will divide the State's actions into those that took place prior to 1991 and those that took place after 1991. By claimants' own admissions they were well aware that the State had stopped maintaining OMH in 1991. This flood did not occur until April 2001. As such, for approximately a decade claimants were aware that the State was no longer clearing OMH. The State's decade long abandonment prohibits a conclusion that claimants could have justifiably relied on actions that took place a decade earlier. In this court's view, the State has established as a matter of law that claimants' injuries in 2001 were not the result of any justifiable reliance on any State assurances, actions and/or inactions that took place before 1991. (Cuffy, 69 NY2d at 263).

Claimants also argue that their injuries were the result of their justifiable reliance on the State's assurances and actions after 1991 relative to the State's involvement in continuing remedial efforts. Again, the court disagrees. As noted above, many of the so-called assurances and actions pointed to by claimants were made between State employees and Village and Town officials, not between the State and claimants. Further, the post-1991 studies and investigations into remedial actions were undertaken by the State for the benefit of the public at large traveling over the nearby State roadways and not for the benefit of these property owners. The fact that these property owners may have ultimately benefitted from such remedial plans does not convert claimants' reliance into a justifiable reliance.[2] Consequently, the court finds that claimants have also failed to establish a justifiable reliance on any State action after 1991 and, as such, have failed to establish a special relationship between them and the State regarding maintenance of OMH.

Finally, inherent in this court's analysis above is the determination that the State was acting within its police power to protect the public at large. The State was acting to protect the traveling public at large, not merely the instant property owners. For instance, assume for a moment that this area existed as described (claimants' properties, OMH, Bowmakers Pond), but without Routes 10 and 20. Under such circumstances, there would have been no basis for the State's involvement. In other words, the common element throughout the history of OMH and the State's involvement are the presence of the State highways. That claimants benefitted from the State's attempts to keep Route 20 free from flooding does not in and of itself create a special relationship between the State and claimants. Consequently, the court finds no special relationship between the State and these claimants. In sum, this court finds that "[t]he duty assumed constituted nothing more than a general duty to provide protection to the public at large from a potentially hazardous [condition] pursuant to the State's police powers." (Miller v State of New York, 277 AD2d 770, 770-771).
  1. Alteration of Surface Water Flow
Claimants' position relative to this point may be summed up by their statement that "[t]he preponderance of the evidence does show that the State's activities did increase the flow rate to OMH and did decrease its capacity." (Reply Memorandum of Law, p 5). More specifically, claimants argue that two projects by the State have altered the flow of surface water draining into OMH, thereby increasing the flow and resulting in the 2001 flood. (Affidavit of Dana C. Chapman, P.E., pp 5-8). First, claimants point to the 1200 foot culvert system for Route 20 built by the State in 1937 which drains water into an open ditch on the south side of the roadway and flows in a southerly direction through the ditch into OMH. Secondly, claimants assert that the State increased the flow into OMH in 1931 when it built Route 10 along the western shores of Bowmaker Pond. According to claimants, the new highway required the construction of a ten-foot high embankment which blocked the water flow to the west forcing it north into OMH.

The State does not deny that a portion of the Route 20 drainage system flows into OMH. However, the State argues that Route 20 is only one of many possible causes of sedimentation entering OMH including Bowmaker Pond, construction projects in the watershed, and county, town and village roadways. (Affidavit of Pamela M. Eshbaugh, P.E., ¶ 16). Moreover, Ms. Eshbaugh avers, among other things, that "[t]he watershed area is 908 acres. Of this, New York State highway pavement is 11 acres, or 1.2% of the entire watershed area." (Affidavit of Pamela M. Eshbaugh, P.E., ¶ 14).

Here, the court finds that the opposing experts have differing views of the interplay of these various natural resources and roadways with respect to their impact on the surface water flow into OMH, as well as its drainage capacity. In other words, on this issue the court is presented with a classic "battle of the experts," that does not lend itself to judgment as a matter of law to either party. (Miah v New York City Hous. Auth., 193 Misc 2d 601, 607). As such, in view of the "competing and contradictory conclusions" as to the causes of the increased flow and decreased capacity of OMH, the court finds that questions of fact exist warranting denial of summary judgment on the sole issue of the State's alteration of the surface water flow into OMH. (Harrington v City of Plattsburgh, 216 AD2d 724, 725).

Finally, the court will address claimants' contention that proof of subsequent repairs is admissible at trial for purposes of establishing the State's control and maintenance responsibilities of OMH. In view of this court's determination herein that the State does not have ownership or control over OMH, the sole remaining issue for trial relates to the State's alleged alteration of surface water flow into OMH. As such, this court finds that subsequent repairs are neither material nor relevant with respect to said sole remaining issue.

Accordingly, in light of the foregoing, it is ORDERED that claimants' motion for summary judgment, Motion No. M-67338, is DENIED; the State's cross-motion for summary judgment, Motion No. CM-67722, is DENIED IN PART and GRANTED IN PART in accordance with the foregoing.

The court will schedule a conference with counsel for the purpose of scheduling a trial on the sole remaining issue in this matter.

January 14, 2004
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with these motions:
  1. Claim, filed November 5, 2001.
  2. Notice of Motion No. M-67338, dated September 3, 2003, and filed September 5, 2003.
  3. Affidavit of Frank A. Sarat, Esq., in support of motion, sworn to August 27, 2003, with attached exhibits.
  4. Affidavit of Dana C. Chapman, in support of motion, sworn to August 29, 2003, with attached exhibits.
  5. Affidavit of Leland Van Schaick, in support of motion, sworn to July 31, 2003.
  6. Affidavit of Jack Young, sworn to August 21, 2003.
  7. Affidavit of Harrie Washburn, in support of motion, sworn to July 24, 2003.
  8. Claimants' Memorandum of Law in support of motion, undated, with attached appendix.
  9. Notice of Cross-Motion, Motion No. CM-67722, dated November 26, 2003, and filed December 1, 2003.
  10. Affirmation of James E. Shoemaker, AAG, in opposition to motion and in support of cross-motion, dated November 26, 2003, with attached exhibits.
  11. Affidavit of Pamela M. Eshbaugh, P.C., in support of cross-motion and in opposition to motion, sworn to November 25, 2003.
  12. Affidavit of Ronald C. Edwards, in support of cross-motion and in opposition to motion, sworn to November 19, 2003.
  13. Memorandum of Law, in support of cross-motion and in opposition to motion, dated November 26, 2003.
  14. Reply Affidavit of Frank A. Sarat, Esq., in support of motion and in opposition to cross-motion, sworn to December 2, 2003, with attached exhibits.
  15. Reply Memorandum of Law, in support of motion and in opposition to cross-motion, dated December 2, 2003.

[1]The actual owner of the land on which OMH is situated is described by claimants as follows: "[l]ocated on private property, the deed held by an absentee landlord. Various people interviewed in the course of claimants' investigations have referred to a rabbi or a rabbinical society, but the actual owner has never played any practical role in the maintenance and drainage of the OMH." (Claimants' Memorandum of Law, p 2).
[2]It is also helpful to keep in mind the policy underlying the special relationship doctrine outlined by the Court of Appeals in Cuffy, namely to prevent unfairness when a municipality has lulled a party into inaction. (Cuffy, 69 NY2d at 261). Here, claimants have not pointed to any single act that they refrained from taking because of the State's actions. In other words, claimants were never, individually or collectively, going to undertake any remedial actions of OMH on their own. As such, there is no proof that claimants were lulled into inactivity because of the State's actions and/or promises.