New York State Court of Claims

New York State Court of Claims

KELLER v. THE STATE OF NEW YORK, #2004-029-427, Claim No. 103248


De vacto appropriation, trespass and nuisance; Court finds failure of proof as to de vacto appropriation; no wilfulness in defendant's actions to establish a trespass and none of the three elements of nuisance was established at trial.

Case Information

In the Matter of the Claim of ROYCE and DENISE KELLER, EDWARD and RENEE SABINI, CARL and DARIA BECKER and ALBERT and RAYMOND GREGG The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
DeMaggio & DeMaggio, LLPBy: David DeMaggio, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 9, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimants seek recovery for damage to their real property resulting from the alleged negligence of the State of New York. The trial was bifurcated and this decision deals only with the issue of liability.

Claimants are owners of several parcels of real estate on Riverside Avenue in Haverstraw, New York. Albert Gregg, the only claimant to testify, stated that the parcels at issue are located on the shoreline of the Hudson River, downhill from High Tor Mountain, Route 9W and the CSX Railroad Tracks (in descending order). He stated that on September 16, 1999, the date of Hurricane Floyd, he arrived home from work at about 6:00 p.m. and saw a flooding problem in the area. He received a call and was told his street was being evacuated. He and his family were taken to an evacuation center for the night. The following day, he returned and inspected the CSX Tracks and Route 9W.

Based upon the debris trail, Mr. Gregg believed that water from the culvert identified on Exhibit Q as being at Station 34+50 on Route 9W had flooded and washed debris onto the railroad tracks. He opined that water pooled upslope of the tracks and overtopped the tracks at a point uphill from his property. From there the water coursed downhill to washout a section of his and the Kellers' backyard.

Mr. Gregg also testified that on June 16 and 17, 2001, during Tropical Storm Allison, he observed water from the culvert on Route 9W at Station 34+50 flooding the railroad tracks. The water again pooled upslope of the tracks and over topped the tracks at a site above the claimants' properties. The witness stated that he never experienced this type of flooding prior to Hurricane Floyd. Mr. Gregg identified 14 photographs (Exhibits 3 - 16, inclusive) depicting the damage to the claimants' properties.

Brian Brooker, a professional engineer licensed in New York State, testified on behalf of claimant. The Court accepted the witness as qualified to give the proffered testimony.

Mr. Brooker testified that the maximum capacity of the drainage system of Route 9W is a 20-year storm[1]
. He stated that Hurricane Floyd was a 100-year storm. The witness testified that Route 9W forms a bench in the side of High Tor Mountain. Looking at Exhibit 1, a topographical and drainage map for Route 9W in this area, the witness stated that the low point on Route 9W is between Stations 128+00 and 129+00 and that there is a culvert in the area which corresponds to the culvert shown on Exhibit Q at Station 34+50. There is a drainage ditch running along the uphill or southern side of Route 9W from Station 100+00 to 133+00 (on Exhibit 1) and leading to the culvert at Station 34+50 (on Exhibit Q). There are five culverts to the east of Station 34+50 and no culverts to the west of that station.
Mr. Brooker testified that during Hurricane Floyd and Tropical Storm Allison, the capacity of the culverts was exceeded and the water ran in the drainage ditch to the lowest point of Route 9W, the culvert at Station 34+50 (on Exhibit Q). From there it traveled through the culvert and picked up debris from the road, flooding the CSX Tracks at that point. He stated that in the absence of Route 9W, water would flow directly down High Tor Mountain. Because of the configuration of Route 9W's drainage system, specifically the drainage ditch, most of the water on the north side of High Tor Mountain was directed to the area of the culvert at Station 34+50 (on Exhibit Q). The witness concluded that if Route 9W had not been built, the water would have run down the mountain to the river in a series of rivulets and would not have flooded claimants' properties.

On cross-examination, Mr. Brooker reiterated that he considered Hurricane Floyd to be greater than a 100-year storm but admitted that he did no analysis of Tropical Storm Allison and did not know what intensity the storm was. He testified that there are five culverts to the south of Station 129+00 in this area (see Exhibit 1), but they have limited capacity to drain water during heavy storms. He testified that he did not know the capacity of each culvert on Route 9W. He did not know the methods used to design the culverts and drainage system for Route 9W. He testified that every pipe has a limited capacity and that no drainage system is built for a 100-year storm. The witness admitted that drainage facilities are not generally designed to accommodate hurricanes and storms of the magnitude of Hurricane Floyd. He also admitted that since 1928 there did not appear to be any changes in roadway or drainage which materially increased the amount of surface runoff or potential for flooding the downstream properties. He testified that he did not consider the redistribution or water flow after it left the railroad's property. Mr. Brooker admitted he never inspected the railroad culverts. Finally, the witness testified that his analysis did not consider the drainage pattern of the railroad and he did not do a full analysis of the railroad and railroad culvert.

Claimants rested at the conclusion of Mr. Brooker's testimony. The State moved to strike Mr. Brooker's testimony based upon his failure to fully analyze the entire drainage basin and to consider the railroad or other contributory factors. The State also moved to dismiss the claim for failure to establish a prima facie case of negligence with regard to the design of Route 9W's drainage system. In response to the motion to dismiss, claimants' counsel stated that the claim is one for intentional taking, nuisance and trespass and specifically discounted any "design" claim (which would, in this case, be shielded by the defendant's design immunity).

Turning to the motion to strike Mr. Brooker's testimony, at trial I granted the motion in part and denied it in part. I accepted the witness' testimony "as to what happens to the hydrology from the top of Hightore [sic] Mountain and the break in the ridge line down to Route 9 [W] and from Route 9 [W] flowing laterally to Station 3450" (Trial Transcript, Volume 2, Page 2[2]
). I granted the motion to strike the testimony in part "because the Witness, by his own admission, was absolutely not competent to testify as to anything that happened once that lateral flow to 34 50 was--- Well after the lateral flow at 34 50. So I am going to grant the Motion in part and disregard any statement, opinion or other matter that the Witness may have discussed, any implication, any conclusion that has to do with the hydro-genealogy or the hydrology of that, of this area, subsequent to Station 34 50 on Route 9W" (Trial Transcript, Volume 2, Pages 2-3).
Ruling upon the State's motion to dismiss, I stated "based upon that decision, I'm going to also grant in part and deny in part the Defense Motion to dismiss for failure to show a prima facie case....There are two parties---two sets of parties involved and they're really differentiated geographically, laterally. The easternmost parties Gregg and Keller, without any testimony as to the potential superseding intervening cause, that being the railroad. I find that it's more probable than not, that they would not be impacted directly. Based upon this record, I find that it's more probable than not that they not be impacted directly, had the railroad not conveyed the water back to the east where it could approach their property. Therefore, on the Defense Motion to dismiss for failure to prove a prima facie case in regard to those two, I am granting it, and the case is dismissed as to those two Claimants[3]
" (Trial Transcript Volume 2, Pages 3-5). I also note that no evidence was adduced at trial regarding any negligence in the design of the drainage system of Route 9W in this area. In addition, claimants' counsel specifically stated that "the claim is a claim for intentional taking, nuisance and trespass" (Trial Transcript, Volume 1, Page 77). Therefore, the Court finds that any cause of action set forth in the amended claim for negligent design of the drainage system has been withdrawn by claimants.
Susan Fasnacht, a professional engineer licensed in the State of New York was called as a witness by the defendant. The Court accepted this witness as qualified to give the proffered testimony.

Ms. Fasnacht testified that if Route 9W was not there, if it had never been created, the runoff from High Tor Mountain would not be harmless sheet flow during a severe storm. She stated that during storms, the runoff initially begins as sheet flow, but usually within the first 100 to 300 feet, depending on topography, changes to more of a rivulet, or "shallow concentrated flow" in engineering terms. In a 100-year storm, the drainage patterns will change due to intensity, but the water would tend to form into small rivers and find its way down as a more concentrated flow than sheet flow.

Ms. Fasnacht testified that the railroad's track drainage system was comprised of one culvert at Station 167+65 which was half filled with railroad ties. While her maps indicated a second culvert at Station 16+56, she could not find it when she visited the location in December, 2003. Exhibit N consisted of 16 photographs taken by Ms. Fasnacht during her visit in December, 2003. The witness testified that photographs 1 and 2 depict the location where the missing culvert should be. Photograph 2 depicts the area behind the Sabini and Becker properties where the missing culvert should be and there is a different type of fill material from the rest of the embankment. Photographs 13 and 14 are photographs of the culvert and reveal there are railroad ties in the culvert taking up about half of the pipe's capacity. Ms. Fasnacht opined that the fact that Route 9W would overflow during a 100-year storm would not have an impact on the properties east of the CSX railroad property because the railroad is the controlling factor in the drainage. The railroad is directing the water flow to those properties and Route 9W has no impact on how the water gets down to those properties.

On cross-examination, the witness stated that she did not know the condition of the drainage system at the CSX tracks on the date of Hurricane Floyd in 1999 since she inspected the CSX property in 2003. She stated that she believed Hurricane Floyd significantly affected the area.

Nicholas Pucino, a licensed professional engineer in the State of New York, was also called as a witness by the defendant. Mr. Pucino was accepted by the Court as an expert witness.

Mr. Pucino opined that assuming the claimants' houses were built after 1928 when Route 9W was built, it is fair to say that the runoff and flooding potential today are the same as when they moved into the area. He also opined that the individual culverts were adequate or ample for a 10-year storm and possibly up to a 25-year storm, but certainly not capable of handling a 100-year storm or even a 50-year storm. Judging from climatological data, Hurricane Floyd was at least a 100-year event. Mr. Pucino stated that no highway drainage systems are designed for a 100-year storm. The witness concluded that Hurricane Floyd washed out the railroad culvert. The railroad pipes were much too small to handle any major storm and the railroad relied on its swale and a few culverts. The storm washed soil and debris down to the CSX tracks and blocked the swale, contributing to the washout of the railroad property. According to the witness, the core problem for these properties is that they are at the base of a mountain and during a severe storm things are going to wash down the mountain, not always in a neat way. Particularly in a 100-year storm, water will not flow downstream in uniform sheets. Mr. Pucino disagreed with Mr. Brooker's opinion that absent Route 9W, these properties would not have been damaged. Mr. Pucino also cited the intervening cause of the railroad which could not handle the water flow and volumes related to extraordinary storm events.

On cross-examination, Mr. Pucino testified that road designers do not generally design to accommodate 100-year storms. He also stated that repair work was done on the downhill embankment of Route 9W at Station 34+50 after Hurricane Floyd.

Recently, the Appellate Division, Fourth Department stated in
Weaver v Town of Rush (1 AD3d 920, 923-924):
"A finding of inverse condemnation or de facto taking requires a ‘showing that the government has intruded onto and interfered with the owner's property rights to such a degree that the conduct amounts to a constitutional taking requiring the government to purchase the property from the owner' (
O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). A de facto taking can consist of either a permanent ouster of the owner, or a permanent interference with the owner's physical use, possession, and enjoyment of the property, by one having condemnation powers (see Mickel v State of New York, 77 AD2d 794 [1980], affd 54 NY2d 858 [1981]; Feder v Village of Monroe, 283 AD2d 548, 549 p2001], citing City of Buffalo v Clement Co., 28 NY2d 241 [1971], rearg denied 29 NY2d 640 [1971]; Hylan Flying Servs. v State of New York, 54 AD2d 278, 280 [1976], lv dismissed 40 NY2d 908 [1977]; see also Sarnelli v City of New York, 256 AD2d 399, 400 [1998], lv denied 93 NY2d 804, 958 [1999]; Matter of Ward v Bennett, 214 AD2d 741 [1995]). In order to constitute a permanent ouster, ‘defendant[s'] conduct must constitute a permanent physical occupation of plaintiff's property amounting to the exercise of dominion and control thereof' (Reiss v Consolidated Edison Co., 228 AD2d 59, 61 [1996], appeal dismissed 89 NY2d 1085 [1997], lv denied 90 NY2d 807 [1997], cert denied 522 US 1113 [1998]; see Clement Co., 28 NY2d at 253-255)." (See Sarnelli v City of New York, 256AD2d 399; see also Stewart v State of New York, 248 AD2d 761).

Here, claimants failed to establish by a preponderance of the credible evidence, or in fact present any evidence, that there was a
permanent physical occupation of their property by the State amounting to the exercise of dominion and control thereover. Therefore, the cause of action for de facto appropriation is dismissed.
Turning to the trespass cause of action, it has been held that "trespass is an intentional harm at least to this extent: while the trespasser, to be liable, need not intend or expect the damaging consequence of his intrusion, he must intend the act which amounts to or produces the unlawful invasion, and the intrusion must at least be the immediate or inevitable consequence of what he willfully does, or which he does so negligently as to amount to willfulness" (
Phillips v Sun Oil Co., 307 NY 328, 331; see Ivancic v Olmstead, 66 NY2d 349, rearg denied 66 NY2d 1036, rearg denied 67 NY2d 754). A trespass is actionable, therefore, when there is an intent to do the very act which results in the immediate damage (see Wood v United Air Lines, 32 Misc 2d 955, affd 16 AD2d 659, appeal dismissed 11 NY2d 1053; Socony-Vacuum Oil Co. v Bailey, 202 Misc 364) notwithstanding that the act was done because of mistake or inadvertence (see Phillips v Sun Oil Co., 307 NY 328, supra; Nance v Town of Oyster Bay, 41 Misc 2d 446, mod on other grounds 23 AD2d 9), notwithstanding that the resulting damage is neither intended nor expected (see Phillips v Sun Oil Co., 307 NY 328, supra; Van Alstyne v Rochester Tel. Corp., 163 Misc 258) and notwithstanding that the trespassing conduct was not unlawful (see Rager v McCloskey, 305 NY 75, rearg denied 305 NY 924). It is not the directness of the damage but the directness of the invasion which is the test of liability for trespass and recovery for damages (see Van Alstyne v Rochester Tel. Corp., 163 Misc 258, supra, citing Huffmire v City of Brooklyn, 162 NY 584; Atwater v Trustees of Vil. of Canandaigua, 124 NY 602).
In the instant case, there is no question that the defendant, State of New York, constructed a drainage system ancillary to the construction of Route 9W in or about 1928. There can be no legitimate dispute that the construction of the drainage system was intentional and, as designed, it intentionally diverted storm water drainage flowing down from High Tor Mountain into various catch basins along the upslope side of Route 9W. Further, testimony of all expert witnesses indicated that Route 9W itself slopes downhill in a westerly direction such that water which is impounded by the Route 9W drainage system would move west over a series of catch basins to the low point located at Station 34+50. From that point, water which reached the catch basin at Station 34+50 would drain through a culvert, under Route 9W and onto the CSX property below.

At first blush, it would appear that the intentional actions of the State would give rise to liability pursuant to the case law cited
supra. However, a closer look at the circumstances involved indicates that it was not the diversion of water, per se, that caused the intrusion onto claimants' properties but rather it was the overflow of that water during extraordinary storm events which overwhelmed the design capacity of the system.
Having determined that the "intrusion" in question resulted from overflow and not from the basic design of the drainage system, which all experts (including claimants' expert) testified functioned properly, the trespass analysis now turns to whether or not the creation of the overflow was willful or "so negligent as to amount to willful" (see
Phillips v Sun Oil Co., 307 NY 328, supra). I conclude that it was not.
The testimony of all experts indicated that the design of roadway drainage systems generally comprehend capacity for a storm intensity of the 10 to 20-year storm event. All testimony of the experts conclusively showed that no roadway drainage system is designed to handle a 100-year storm event and that the failure to so design does not constitute a violation of good and proper engineering practices. The Court has no idea what the standards were in 1928 when the Route 9W drainage system was originally designed and installed, however, they are irrelevant since even in the year 2004 a drainage system would not be designed to handle storm events of the intensity of Hurricane Floyd and Tropical Storm Allison. As a result, none of the evidence in the record demonstrates that the capacity limitations of the instant storm drainage system are in any way negligent. They certainly do not constitute negligence amounting to "willfulness". Therefore, in finding that it was the overflow from an extraordinary storm event which caused the intrusion onto claimants' properties, I find a total lack of the requisite willfulness (whether by intention or negligence) necessary to hold the defendant liable in trespass under the case law cited
supra. As a result, claimants' actions for trespass are hereby dismissed.
Finally, the cause of action sounding in nuisance is likewise unavailable to claimants. The New York State Court of Appeals stated in
Copart Inds. v Consolidated Edison Co. of N.Y. (41 NY2d 564, 569):
"Despite early private nuisance cases, which apparently assumed that the defendant was strictly liable, today it is recognized that one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities (Restatement, Torts 2d [Tent Draft No.16], § 822; Prosser, Torts [4
th ed], p 574; 2 NY PJI 653-654; see Spano v Perini Corp., 25NY2d 11, 15; Kingsland v Erie Co. Agric. Soc., 298 NY 409, 426-427; Wright v Masonite Corp., 237 F Supp 129, 138, affd 368 F2d 661, cert den 386 US 934)."

In view of this Court's prior analysis of the proper design and capacity of the Route 9W drainage system and the lack of negligence or intent on the part of the State in causing the overflow which damaged claimants' properties, the Court concludes that claimants have failed to establish by a preponderance of the credible evidence any of the three elements required to establish a cause of action in nuisance. Therefore, this cause of action is also dismissed.

The claim is hereby dismissed in its entirety. All motions made at trial upon which decision was reserved, are now denied. The Chief Clerk is directed to enter judgement accordingly.

September 9, 2004
White Plains, New York

Judge of the Court of Claims

[1] A storm of such magnitude that it has a one in twenty probability of occurring in any given year.
[2] The trial transcript was typed by two typists employed by Tri-State Reporting, Inc. East. Each typist labeled the volume she prepared as Volume I. The Court will refer to the transcript from June 7, 2004 as Volume 1 and the transcript from June 9, 2004, the second day of trial, as Volume 2.
[3] It is noted in claimants' post-trial memorandum, claimants' counsel requested that I reconsider this decision dismissing claimants Gregg and Keller. In reviewing the record, I find that the testimony of all experts indicated that the Route 9W drainage system actually diverted water away from claimants Gregg and Keller by taking overflow to the west a substantial distance before sending it through the culvert to the CSX property. Indeed, it was the swale and drainage system on the CSX property which then brought the same water all the way back to the east before it overflowed and impacted upon the Gregg and Keller properties. In the absence of any testimony or consideration of this superceding intervening cause, I granted the motion to dismiss as to Gregg and Keller. In view of the ultimate decision of this Court on the merits which apply equally to all claimants, restoration of claimants Gregg and Keller would be moot and unnecessary.