New York State Court of Claims

New York State Court of Claims

FATONE v. THE STATE OF NEW YORK, #2004-032-083, Claim No. 106571, Motion No. M-68534


In an action where a property owner alleges that nearby road construction caused flooding to its property over a period of months, defendant's motion for summary judgment is denied on the ground that there exist a number of unresolved issues of material fact.

Case Information

THE FATONE FAMILY HOLDINGS, L.P. The Court sua sponte amends the caption to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court sua sponte amends the caption 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:
Herzog, Engstrom & Koplovitz, PCSeth D. Finkell, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
Phelan, Burke & Scolamiero, LLP, Of CounselBy: Stacy M. Frederick, Esq.
Third-party defendant's attorney:

Signature date:
September 28, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The claim in this action alleges that between April 28 and August 3, 2002, the basement of a building on property owned by claimant was flooded and that the flooding was caused by water being channeled onto the property from construction work performed nearby by August Bohl Contracting Co. ("Bohl"), pursuant to a contract with the State Department of Transportation ("DOT"). The property that is the subject of this claim is a 15 unit apartment building located at 61 Vandenburg Avenue (Route 4) in Troy, New York. The basement of the building contains three apartments, a storage room, and a laundry facility. Discovery has been completed in this action, and a note of issue has been filed.

Defendant now moves for summary judgment dismissing the claim, asserting that there is no evidence of negligence in the performance of the work done on Route 4 and no evidence, other than the unsupported allegations of claimant's general partner, Mrs. Karen Fatone, to connect the State's construction work to the fact that surface water may have entered claimant's property. In support of the motion, the State has submitted a number of exhibits and the affidavits Timothy Farrell, the DOT Engineer in Charge of the construction project on Route 4/Vandenburg Ave. and from Irving Paris, a licensed architect.

Defendant's case: Defense counsel points to that portion of the deposition testimony of Karen Fatone (Frederick affidavit, Exhibit J), who stated that she became aware of the water damage during the first week of April when she observed water "pouring" into the building. She went outside but could find no water accumulation on the exterior of the building. Approximately two and a half weeks later, she again observed water, this time running down a staircase to the floor. Again, she looked outside but could find no accumulation of water on the exterior of the building. She stated that she also questioned her property manager, Robert Duval, who said that he also did not know the source of the water.

Tim Farrell, the DOT engineer in charge on the construction project, states in his affidavit in support of the motion, that the purpose of the construction project was to widen Vandenburg Avenue from a three lane road to a five lane road with two bike lanes. The project had been designed by an engineering firm, The Sears Brown Group, Inc. and Bohl was hired to perform the work. The project design, he states, conformed with accepted engineering practices, and the project was constructed in substantial compliance with the contract plans and drawings (Farrell affidavit, ¶4). The work performed did not, he asserts, alter the topography of the roadway or the adjoining property in such a way that surface or run-off water would be channeled onto claimant's property. Before the construction, the center of the street was the highest point in the area, with both sides sloping off to the sides, so that run-off water would drain from the road onto adjoining property. Once the project was completed, claimant's property, which was on the west side of the road, would be "on the high side of a banked curve, with all drainage flowing across Vandenburg Avenue to the East". Mr. Farrell states that at no time during the course of construction did he observe any surface water running onto the Fatone property. In addition, on those occasions when Mrs. Fatone contacted DOT to express her concerns, he personally contacted the Project Superintendent, Ed Bohl, and went with him to inspect the outside of the Fatone property. At no time did he observe any visible signs of surface or run-off water on claimant's property (id., ¶7).

Irving Paris, the licensed architect who was retained by defendant after this action was commenced, based his affidavit on the pleadings, all discovery documents, photographs of claimant's property and building, and all deposition transcripts.[1] Based on that review, it is his opinion, within a reasonable degree of engineering and architectural certainty, that the construction project was carried out in compliance with the contract plans and drawings and in accordance with accepted engineering and architectural standards. He describes the relative locations of the road and the property, both before and after the construction project, in the same fashion as Mr. Farrell. Further, he states that any pooling of water at or near claimant's apartment building was, in his opinion, caused by the 100% saturation of the ground due to a very heavy rain season. He notes that photographs of the Fatone property revealed mold and moss on the outside brick of the building, indicating to him that there had been dampness and water seepage over many years, most likely caused by water draining off the structure's roof and bouncing back up on the brick walls. He noted that the concrete walls of the building's foundation were not waterproofed and stated that, because concrete is a porous material, water and dampness could seep into the interior of the building. Mr. Paris also notes that the grade of the ground immediately around the structure's foundation, before and during the course of the construction project, placed the ground at the level of the top of the foundation. This, he said, causes water and dampness to have constant contact with the point where the foundation meets the brick exterior, allowing water and dampness to seep into the porous, non-waterproof brick and concrete. With respect to Mrs. Fatone's statements that on some occasions the water would come through the basement wall at great pressure, he stated that for that to happen the water would have to come from a pressurized source, not from run-off or surface water.

Claimant's case: In opposition to the motion, claimant contends that during the period from April to August 2002, there was intermittent rain but nothing outside the normal range of precipitation for the area and the time of year. This is confirmed, counsel indicates, by the construction project's records, which show that there had been little interference with the work due to rain (Finkell affidavit, 7, referencing Frederick affidavit, Exhibit K, p 9 [EBT of Timothy Farrell]). The Court is informed that the Fatone family had owned the property in question for 32 years and, during that time, there had never been any flooding in the building.

Claimant's counsel also challenges the statements of Mr. Farrell and Mr. Paris that the construction project was carried out in compliance with the project design and specifications, pointing to Mr Farrell's own admission that he recommended several changes to the original design (id., 13, referencing Frederick affidavit, Exhibit K, p 13). When Mrs. Fatone complained of flooding while the project was ongoing, Mr. Farrell referred the problem to a DOT construction supervisor, Mike Gray, and apparently through Mr. Gray's efforts, the City of Troy investigated the matter, taking tests of the water in claimant's building to determine if it was city water or ground water. The water was not chlorinated, and therefore it was not city water.

According to claimant's counsel, the State's specific negligence was the failure to create any water control or water channelization after it removed the grass and topsoil from the unpaved area between the roadway and claimant's property. This resulted in ruts being created in the exposed ground, which served as channels directing water onto the property. Exhibit 2 of the Finkell affidavit consists of 10 photographs that show the road construction project, concrete barriers forming a retaining wall, and on the far side of those barriers bare earth in which there are visible ruts or grooves leading down a slope, apparently toward the Fatone building.

When advised to do so, counsel states, Mrs. Fatone contacted the property's insurer, and the matter was referred to Preferred Adjustment Company ("Preferred Adjustment"). Preferred Adjustment, in turn, retained the services of Dente Engineering of Watervliet to conduct the investigation. On July 26, 2002, claimant was informed by Preferred Adjustment that Fred Dente, P.E. had submitted a report concluding that "the water entering your building is surface water run-off occurring as a result of the construction work being performed by the State of New York along Route 4 (Vandenburg Avenue)." Based on that conclusion, the insurer declined coverage because the policy excluded damage from such a cause (Finkell affidavit, Exhibit 3 [letter from Preferred Adjustment Co.]).

Claimant reports that the flooding was ultimately halted when claimant hired Tomaro Corporation to install a swale, which successfully drained off the rainwater. This, claimant's counsel contends, establishes that there was a reasonable solution that defendant could have initiated without significant cost, and consequently defendant did not make a good faith effort to solve the problem of their own creation.

In contrast to defendant's contention that no one observed any connection between the construction work and the flooding of claimant's property, claimant's counsel points to the deposition testimony of David Duval, of Dynasty Home Improvements, a firm that Mrs. Fatone had hired to manage several properties that she and her husband owned (Finkell affidavit, Exhibit 4). When asked by defense counsel if he had looked for the source of water that he observed coming into the interior of one of the apartments in June 2002, he replied that he had gone outside and seen "water coming over the bank from the construction area flowing toward the building" (id., pp 30-31).

In further opposition to the motion for summary judgment, claimant has submitted the supporting affidavit of Ernest J. Gailor, P.E., a Senior Forensic Engineer with Harlan-McGee Associates of Saratoga, Inc. Mr. Gailor visited the Fatone property and reviewed the plans for the State's street rehabilitation project. He observes that the construction site on Vandenburg Avenue was raised over 4 feet higher than claimant's property and that a retaining wall (made up of concrete barriers) had been constructed directly in front of the property. This created a "deep chasm between the property and Vandenburgh (sic) Avenue" (Gailor affidavit, ¶4). According to Mr. Gailor, the vertical gouges in the soil behind the retaining wall and the downslope from that wall channeled water onto the Fatone property. He opines that defendant failed to plan for or use any erosion control plan to prevent erosion damage after the grass was removed and exposed the topsoil on the slope. He also states that principles of basic physics would account for water entering claimant's building with force ("blowing out of the walls"), because in a heavy rain the water would go down the slope, hit the foundation wall, and as a result of the accumulated pressure, breach the foundation walls. In his opinion, any normal cement foundation would have been affected in the same way under those circumstances.

Applicable law: Summary judgment is a drastic remedy that should only be granted when there are no outstanding issues of fact (Redcross v Aetna Cas. & Sur. Co., 260 AD2d 908, 913-914 [3d Dept 1999], citing to Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The Court's task is "issue finding, not issue determination," and before judgment can be granted it must be clearly ascertained that there are no triable issues of fact outstanding (Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002], citing to Matter of Suffolk County Dept. of Soc. Servs. v James M., 83 NY2d 178, 182 [1994] and Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

Negligence actions are rarely appropriate for resolution by summary judgment, as they typically involve numerous factual issues and require an assessment of whether the defendant's actions were reasonable (Davis v Federated Dept. Stores, 227 AD2d 514, 515 [2d Dept 1996]). Credibility issues cannot be resolved on a motion for summary judgment (Goff v Clarke, 302 AD2d 725, 727 [3d Dept 2003]; see also, Curanovic v New York Cent. Mut. Fire Ins. Co., 307 AD2d 435 [3d Dept 2003]), and "summary judgment is inappropriate where ... the facts governing the resolution of material issues are within the exclusive knowledge of the moving parties" (Tenkate v Moore, 274 AD2d 934 [3d Dept 2000], citing to Zwart v Town of Wallkill, 192 AD2d 831, 834 [3d Dept 1993]; see also Frame v Mack Markowitz, Inc., 125 AD2d 442, 443 [2d Dept 1986]).

The Court's function in deciding a motion for summary judgment is to determine if any issues of fact exist. In order to do this, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]). The moving party must make a prima facie showing of entitlement to judgment as a matter of law, proffering sufficient evidence, in admissible form, to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]).

There are many unresolved issues of material fact in this case, among them the reasonableness of the construction project design and decisions made about protecting adjoining property; the nature and the cause of water damage to claimant's building; the personal observations of individuals who were on the scene during the several months that construction was ongoing; and the reasonableness of the State's actions in light of Mrs. Fatone's repeated complaints. In light of the contradiction, it will be necessary for the Court to determine the credibility of the witnesses by observing their demeanor and manner of responding to questions.

It is true, as defendant argues, that the State and municipalities are granted qualified immunity from liability for roadway planning decisions unless the plan was "evolved without adequate study or lacked reasonable basis" (Weiss v Fote, 7 NY2d, 579, 589 [1960], rearg denied 8 NY2d 934). It is still necessary, however, for there to be some factual basis for concluding that the plan was reasonable and developed after adequate study. Opinions without underlying facts to support those opinions are not sufficient, and the supporting affidavits submitted by defendant contain, essentially, unsupported opinions. In addition, the affidavit of claimant's expert, Mr. Gailor, raises the question of whether the State's plans for carrying out the construction project included providing adequate protection from erosion and water runoff while the topsoil was exposed. Neither Mr. Paris nor Mr. Farrell address that critical issue. (See Evans v Stranger, 307 AD2d 439 [3d Dept 2003]["While a choice between conflicting experts is insufficient to establish municipal liability . . . plaintiff's expert engineer raised questions of fact" regarding adequacy of study leading to highway design decision]).

The Court's function when faced with a conflict within the context of a summary judgment motion is not to weigh the evidence or comment upon aspects that appear weak. The

Court's role is to recognize that sufficient conflict exists to preclude summary judgment, and that is the case here.

Defendant's motion is denied.

September 28, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for summary judgment dismissing the claim:
1. Notice of Motion and Supporting Affidavit of Stacy M. Frederick, Esq., with annexed Exhibits and Supporting Affidavits of Irving Paris, Architect, and Timothy Farrell of the NYS Department of Transportation

2. Affidavit in Opposition of Seth D. Finkell, Esq., with annexed Exhibits and Supporting Affidavit of Ernest J. Gailor, P.E.

Filed papers: Claim; Answer

[1] Counsel for claimant challenges the expertise of Mr. Paris on the ground that he is not a licensed engineer (Finkell affidavit, ¶¶40-43).