COOPER v. THE STATE OF NEW YORK, #2004-019-503, Claim No. 105163, Motion Nos.
ROBERT COOPER, ELIZABETH COOPER, SCOTT DIEHL, GEORGE HIGGINS, KIMBERLY KENNEDY, VERNON KENNEDY, ALTON BELFANCE, SUSAN BELFANCE RANDAL HORNAUER, PETER HORRIGAN, FLORENCE HORRIGAN, ARUNKUMAR PATEL, and ROBERT PERILLO, d/b/a PERILLO'S RESTAURANT
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
LINDENFELD LAW FIRM, P.C.BY: Frank A. Sarat, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
January 14, 2004
See also (multicaptioned
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
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.
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 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.
: 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:
(State's Exhibit C; emphasis added).
: 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 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.
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
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.
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
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
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
(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
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).
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.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
The Court has considered the following papers in connection with these
Claim, filed November 5, 2001.
Notice of Motion No. M-67338, dated September 3, 2003, and filed September 5,
Affidavit of Frank A. Sarat, Esq., in support of motion, sworn to August 27,
2003, with attached exhibits.
Affidavit of Dana C. Chapman, in support of motion, sworn to August 29, 2003,
with attached exhibits.
Affidavit of Leland Van Schaick, in support of motion, sworn to July 31,
Affidavit of Jack Young, sworn to August 21, 2003.
Affidavit of Harrie Washburn, in support of motion, sworn to July 24,
Claimants' Memorandum of Law in support of motion, undated, with attached
Notice of Cross-Motion, Motion No. CM-67722, dated November 26, 2003, and filed
December 1, 2003.
Affirmation of James E. Shoemaker, AAG, in opposition to motion and in support
of cross-motion, dated November 26, 2003, with attached exhibits.
Affidavit of Pamela M. Eshbaugh, P.C., in support of cross-motion and in
opposition to motion, sworn to November 25, 2003.
Affidavit of Ronald C. Edwards, in support of cross-motion and in opposition to
motion, sworn to November 19, 2003.
Memorandum of Law, in support of cross-motion and in opposition to motion,
dated November 26, 2003.
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.
Reply Memorandum of Law, in support of motion and in opposition to
cross-motion, dated December 2, 2003.
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).
It is also helpful to keep in mind the policy
underlying the special relationship doctrine outlined by the Court of Appeals in
, 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.