New York State Court of Claims

New York State Court of Claims

MAGARI v. THE STATE OF NEW YORK, #2005-009-149, Claim No. 106290


This claim seeking recovery for property damage resulting from the flooding of claimant's property, alleging that the Department of Transportation improperly and negligently excavated the drainage ditch, was dismissed.

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:
BY: Michael C. Cogswell, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
December 29, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

In this claim, claimants Joseph Magari and Shirley J. Magari seek recovery for property damage resulting from the alleged negligence of the State. Claimants allege that employees of the Department of Transportation improperly excavated a drainage ditch adjacent to their property, subsequently causing flooding of their property and resulting in the loss of muck soil from their farming operation. Claimants allege that this flooding of their property constituted a trespass by the State.

The trial of this claim was bifurcated, and this decision therefore deals solely with the issue of liability.

At trial, claimant Joseph Magari[1]
testified that in 1995, he and his wife acquired a parcel of real estate, consisting of approximately 7.9 acres, located along the north side of New York State Route 49, west of Central Square in Oswego County. He testified that according to a survey (see Exhibit 1), this property had frontage along Route 49 of 502.03 feet. He further testified that he and his wife acquired this property with the intent of eventually converting the property to muck farming. He testified that this parcel had not been farmed for approximately 30 years. As a result, prior to farming this property, it would be necessary to clear the land of underbrush and woods.
In 1997, prior to clearing this property, claimant contacted the State Department of Transportation and requested that the State clean out a drainage ditch which ran along the north side of Route 49, adjacent to his property. Claimant testified that he spoke with Mr. Shirley of the Department of Transportation, who examined the ditch with claimant. Mr. Shirley then advised claimant that the State did not intend to proceed with any excavation work on this ditch. Even though his request was denied by Mr. Shirley, claimant testified that he contacted the Department of Transportation on several more occasions requesting excavation of this drainage ditch.

Testimony at trial established, without dispute, that this particular drainage ditch drained in a westerly to easterly direction, and that it then connected with another ditch which drained from a south to north direction. Testimony also established that in addition to draining surface water from Route 49, the purpose of this ditch was also to drain water from property on the opposite side of Route 49, which drained into a culvert under the road and then into the ditch.

Claimant testified that in March, 2000 he began to clear this land of brush and vegetation in order to prepare it for muck farming. On May 8, 2000 claimant contacted the Department of Transportation once again and spoke with Joseph Szczerba, the resident engineer for the Department of Transportation in Oswego County, and requested that the drainage ditch be cleared since he was ready to commence his farming operation on the adjacent property. In response, Mr. Szczerba, relying upon Mr. Shirley's prior determination, advised claimant that the department was not required to excavate this ditch.

Even though his request was denied by Mr. Szczerba, claimant continued to make several more requests to have this drainage ditch excavated, even to the point of contacting a member of the New York State Assembly to complain about the Department of Transportation's decision.

Subsequently, claimant met with Mr. Szczerba at the property on May 31, 2000, at which time Mr. Szczerba agreed to clean the vegetation from the ditch. Mr. Szczerba advised claimant that this work would be included in the Department's regular ditching schedule.

On August 1, 2000 a Department of Transportation work crew arrived at this location and began clearing vegetation from the ditch. The work crew consisted of a supervisor and seven other employees who were equipped with one pickup truck, three dump trucks, and one Gradall excavator.

According to the Department's records and the testimony of all witnesses, the crew excavated approximately 200 feet of the drainage ditch along Route 49, to a depth of approximately two to three feet and to a width of three to six feet.

Claimant testified that he was present while this work was performed on August 1, 2000, and that he requested the crew to continue their ditching operations further east along Route 49, so that the excavation would continue to the other ditch which drained in a south to north direction. As it turned out, claimant testified that the crew stopped work approximately 20 feet from the south/north ditch. Claimant testified that the failure to extend the excavation of the Route 49 ditch created a "dam"[2]
, which prevented water contained in this ditch from flowing to the south/north ditch, and instead led to an accumulation of water in the part of the Route 49 ditch which had been excavated.
Claimant then testified that approximately two weeks thereafter, on August 15, 2000, a heavy rainstorm occurred, causing a heavy volume of water to collect in the recently excavated ditch. He testified that the water formed a pool in the ditch, and subsequently overflowed, flooding his adjacent property. As a result, claimant testified that he lost approximately 18 to 20 inches of muck soil when the water on his land drained into the south/north ditch.

After this rainstorm, claimant again contacted the Department of Transportation and complained about the ditching operation, the flooding which occurred on August 15, 2000, and the property damage suffered by him as a result of the flooding. In response, the Department of Transportation sent another work crew to this site on September 14, 2000 and did additional ditching along Route 49.

Claimant testified that this Department of Transportation crew, in addition to extending the drainage ditch along Route 49 approximately 200 feet west of the original ditching operations, also ditched the remaining 20 feet east of the original work site, thereby removing the "dam" that was created during the original ditching operations. As a result of removing this "dam", claimant testified that he has not experienced any flooding since that time.

Based on the testimony of Mr. Magari, claimants contend that the State was negligent in the work it performed during the original ditching operations of August 1, 2000. Specifically, it is the position of claimants that when the work crew deepened the ditch along Route 49 it also created a "dam" when the crew did not extend the excavation to the south/north ditch, and the failure to do so ultimately led to the flooding of claimant's property, thus creating a trespass by the State.

Mr. Szczerba, previously referred to as the Resident Engineer for the State Department of Transportation for Oswego County, testified that he was the Resident Engineer who authorized the cleaning of the drainage ditch along Route 49, after meeting with claimant on May 31, 2000. He testified that the cleaning of the ditch along Route 49 was authorized by him only after persistent badgering by claimant, and was done solely to "appease" claimant. After authorizing this work, Mr. Szczerba testified that he then directed Richard McLaughlin, a Department of Transportation employee who is now retired, to mark the area for ditching and to incorporate this project into the department's ditching schedule.

Kenneth Crouch, a Department of Transportation employee, testified that he was the supervisor of the work crew on August 1, 2000, which performed the initial ditching operations. He testified that this work consisted of approximately 200 feet of excavation and cleaning of the ditch within the State's right-of-way along Route 49, adjacent to claimants' property. He testified that during any ditching operations, as supervisor, he would instruct the Gradall operator to excavate between marks previously placed on the road, and that it was his responsibility to insure that the crew remained within those marks.

Danny Hall, a Department of Transportation employee who operated the Gradall on both dates (August 1, 2000 and September 14, 2000) when ditching work was performed along Route 49 at the Magari farm, testified that he simply dug from one arrow to the next in performing these ditching operations. He had no specific recollections on exactly where those marks were placed in the road.

Miles Blodgett, a Highway Maintenance Supervisor with the Department of Transportation, was in charge of the work crew which went back to the site on September 14, 2000, following the flooding of claimant's property. He testified that he had been instructed by Mr. McLaughlin to "finish the job" along Route 49. He had no recollection that any excavation work was performed on that part of the ditch that tied into the south/north ditch, and that the work crew simply worked between arrows which had been marked on the road.

In sum, there is no dispute that the initial ditching operation performed on August 1, 2000 cleared and deepened the drainage ditch adjacent to claimants' property for approximately 200 feet along Route 49. From the testimony, as well as the photographs taken by claimant and placed in evidence, it is clear that this work did not extend east all the way to the south/north drainage ditch. Contrary to the testimony of Mr. Magari, the testimony from the Department of Transportation employees indicates that when a work crew returned to the site in September, 2000, the additional ditching on that date took place to the west of the original ditching operations. There is no testimony from any Department of Transportation employee, or any evidence in the department's records, that any ditching work was done on the easterly side of the original ditching operations, which would have connected the west/east ditch to the south/north ditch.

Under the doctrine of qualified immunity, the State may not be held liable unless it is established that the drainage system was designed without adequate study or was based upon an unreasonable design decision (
Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). In this case, claimants do not allege that the ditch was negligently designed or constructed. Claimant does contend, however, that the State negligently maintained the drainage ditch when it performed its ditching operations on August 1, 2000, leaving a 20 foot "dam" which prevented proper drainage of accumulated water.
The evidence produced at trial, however, established to the satisfaction of the Court that the specific area to be ditched had been marked by a Department of Transportation employee, and that the work crew stayed within these markings when performing its ditching operations. Aside from the testimony of Mr. Magari, there was no expert testimony to establish that either the initial markings or the work performed was done in a negligent manner. In fact, testimony from the members of the ditching crew established that proper ditching procedures required them to stay within roadway markings in order to avoid the possible presence of underground pipes, cables, or wires. The decision by the Department of Transportation work crew to cease ditching operations at the roadway marker, and not continue beyond the delineated area to connect with the south/north ditch, must be found to be a reasonable decision under the circumstances.

Furthermore, when the Department of Transportation sent another work crew to this site in September, 2000, following the flooding of claimant's property, the evidence suggests that these ditching operations were performed west of the original ditching operations performed on August 1, and that no ditching operations were performed by the State to remove the "dam" east of the original ditching work as alleged by claimant.

Claimants have produced no evidence sufficient for this Court to second-guess the decision of the State engineer in determining which section of the drainage ditch was to be cleared. There was no expert testimony to establish that the State erred in not continuing the excavation to the south/north ditch, or that the failure to do so was the proximate cause of the flooding which subsequently occurred on claimants' property. The Court notes, with interest, that this flooding occurred after claimants had cleared their property of vegetation and trees in March, 2000. The Court therefore finds that claimant has not established, by a preponderance of the evidence, that the State was negligent when it performed ditching operations along Route 49 on August 1, 2000.

With regard 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).
In the instant claim, there was no evidence introduced at trial to establish that the overflow which occurred on August 15, 2000 resulted from willful conduct on the part of the State, or such negligent conduct which would amount to willful conduct (
Phillips v Sun Oil Co., supra). The initial ditching operations had been commenced at the express insistence of Mr. Magari. Moreover, even Mr. Magari testified that the flooding occurred on one occasion, and one occasion only. When informed of the flooding by Mr. Magari, the Department of Transportation responded in a reasonable manner and reasonable time by sending a work crew out to perform additional ditching operations. According to the testimony of Mr. Magari, no additional flooding has occurred since that time. The Court finds that none of these actions taken by the State constitute negligence amounting to willfulness sufficient to establish a trespass cause of action.
Accordingly, based upon the foregoing, the Court finds that claimant has failed to establish his cause of action for negligence and trespass by a preponderance of the evidence. Therefore, in accordance with the foregoing, this claim must be dismissed.

Any and all motions made at trial upon which decision was reserved are now denied.


December 29, 2005
Syracuse, New York

Judge of the Court of Claims

[1] Claimant Shirley J. Magari did not testify at trial. Any references to "claimant", unless otherwise specified, are therefore attributable to the testimony of Joseph Magari.
[2] Unless otherwise indicated, all references and quotations are taken from the Court's trial notes.