New York State Court of Claims

New York State Court of Claims

145 ROUTE 303 v. THE STATE OF NEW YORK, #2005-029-483, Claim No. 101601


Synopsis


Property damage; flooding of claimant's property, which is adjacent to State highway. Flooding in September 1999 was caused by Hurricane Floyd, which was a 1 in 100-year storm. Court finds of design of drain was proper. Flooding not caused by improper maintenance of the drain. Court finds claimant failed to establish by preponderance of the credible evidence that the November 2, 1999 storm was caused by improper maintenance or that the State had notice of a dangerous condition and failed to take reasonable measures to correct it. Claim dismissed.

Case Information

UID:
2005-029-483
Claimant(s):
145 ROUTE 303 CORP. and EIDMAN AGENCY, INC. At trial, the Court granted claimants' motion to amend the caption to correct the name of the claimant corporation. The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
145 ROUTE 303
Footnote (claimant name) :
At trial, the Court granted claimants' motion to amend the caption to correct the name of the claimant corporation.
Defendant(s):
THE STATE OF NEW YORK
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):
101601
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Robinson & Associates, P.C.By: Kenneth L. Robinson, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 7, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimants seek recovery for property damage 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.

Scott Eidman testified that he is the shareholder and President of both claimants. He stated that 145 Route 303 Corp. owns a 3/4-acre parcel of property in West Nyack[1], New York, located just south of Route 59 and abutting the east side of Route 303. There are two buildings on the property, one rented as a residence and the second rented by the co-claimant, the Eidman Agency. Mr. Eidman owns the Eidman Agency which operates an insurance business at the premises. The property was purchased by Mr. Eidman's parents in 1988 and by 145 Route 303 Corp. in 1998. The witness stated that since 1988, no improvements were made to the property except some curbing that was added to the parking lot at the Town's request.

Mr. Eidman testified that adjacent to his property to the south is an Audi dealership and used car lot and across from his property on the west side of Route 303 is a landfill and transfer station. The witness stated that a stream[2] runs through the Audi dealership and used car lot through a piped culvert to the west side of Route 303. He also stated that there is a catch basin on the northern end of his property which he did not install. He stated that Route 303 is higher now than it was when he moved there. Sometime after 1988, a concrete divider was added to separate the travel lanes of Route 303 (see Exhibit 12). Mr. Eidman testified that the divider is solid and does not provide for drainage.

The witness stated that his property experiences flooding during and after rainstorms. On September 16, 1999, during a heavy rain, water accumulated in the area of the culvert at the Audi dealership. The water failed to flow freely under Route 303, flooded the Audi dealership property then his property and insurance business. He said there was approximately 1 to 1½ feet of water in his building which ruined carpets, files and supplies (see Exhibits 1 - 4 inclusive). The water continued to flow north toward the catch basin at the northern end of his property, but did not drain under Route 303. Rather, it returned south, back over his property. Mr. Eidman testified that he experienced another flood on November 2, 1999 when rainwater again moved as it had on September 16, 1999 (see Exhibits 40 - 44 inclusive).

Mr. Eidman identified Exhibit 14 as a June 6, 1996 letter written by his father (Roy Eidman) to the Department of Transportation (hereinafter DOT) regarding problems with the catch basin on the northern end of the property. He stated that it was full of road debris and was not draining excess water.

Subsequent to the September 16, 1999 and November 2, 1999 floods, Mr. Eidman again sought municipal assistance. On November 12, 1999, Roy Eidman wrote to the Rockland County Executive who in turn wrote to DOT's Regional Director (Exhibit 15). County Executive Vanderhoef wrote to DOT that "the water does not appear to be flowing through the drainage system on the landfill side of the road" and he requested that DOT investigate.

On December 30, 1999, DOT's Regional Director, Robert A. Dennison, III, responded to the County Executive's letter (Exhibit 16) stating that the drainage system originally servicing Route 303 included drainage ditches but the owner of the property had filled them in. In the letter, Mr. Dennison acknowledged that the Buttermilk Creek culvert was not functioning "as intended" and attributed the problem to the downstream development outside the control of DOT.

Mr. Eidman recalled seeing DOT work crews periodically cleaning out the catch basin on the northern end of his property and the Buttermilk Creek culvert, mostly removing leaves and branches. He stated that over the last five years, his property has flooded on six to eight different occasions following a heavy rainfall (see Exhibits 18 - 25 which show the catch basin and water damage to Eidman's property). Mr. Eidman offered the opinion that the culvert under Route 303 and the catch basin need to be maintained and the culvert needs to be widened. The witness stated that in July 2004, DOT maintenance workers found an exit pipe from the catch basin on the west side of Route 303 which had been clogged or buried. He does not know its exact location.

On cross-examination, Mr. Eidman stated that his father did not have any concerns that the property would flood prior to purchasing it. He stated that Buttermilk Creek overflowed due to the heavy rains on September 16 and November 2, 1999. He admitted that the majority of the water that pooled on his property came from the creek and only a small percentage was runoff from Route 303. Mr. Eidman also stated that there is a belief among local residents that the flooding was caused by the landfill built by the Town on the west side of Route 303. Finally, he acknowledged that his property is lower than Route 303.

Robert Falk, the DOT Resident Engineer for Rockland County, was called as a witness by both sides. His duties include, inter alia, maintaining highway drains. Mr. Falk uses the Highway Maintenance Guidelines (Exhibit 29) in performing his duties and stated that the guidelines call for inspections to ensure that drains are functioning as intended. Highway Maintenance Guidelines § 3.432 (Exhibit 29) provide that a thorough inspection of pipe culverts and catch basins should be made each spring after the snow and ice season has ended and after each heavy rainfall.

Mr. Falk confirmed that Route 303 in the area of the Eidman property is a fill area where the roadway is raised above the surrounding elevation. He reviewed the record plans for the construction of Route 303 (Exhibit 28) which show a typical section of roadway, not exact locations. The plans show water collection ditches on either side of the roadway, the placement of which is decided by the engineer-in-charge based upon topography. Mr. Falk did not know if there were drainage ditches built between the roadway and the Eidman property when Route 303 was constructed.

The witness marked Stations 265 and 266 on Sheet 31R of the record plans (Exhibit 28). He identified Station 266 as the area of Buttermilk Creek. The 4'x5' concrete culvert shown on the plans, which is maintained by the State, takes the creek under the roadway to the west side of Route 303. Mr. Falk stated that the culvert has been extended since 1932 but does not know if it has been widened. He testified that he has been to the culvert at Station 266 during heavy rains and has seen water up to the top of the culvert but does not recall seeing water above the culvert. He has never observed the water blocked and ponding at the culvert.

Mr. Falk marked Station 269 on Sheet 32R of the record plans (Exhibit 28). He stated that at Station 269 +19 (i.e. 19' beyond Station 269) the plans show a 24" cast iron pipe culvert 72 feet long which is intended to drain water from the east side of Route 303 to the west side. Mr. Falk said this culvert, on the northern end of Eidman's property, ties into a longitudinal drainage system installed by the Town parallel to Route 303. He does not know when the pipe was installed but does know that the tie-in was done with the State's permission. Mr. Falk admitted that there was a period of time when the State "lost track"[3] of the pipe at Station 269 +19 and did not maintain it. He said that DOT maintenance crews found the pipe and cleaned it out "within the last year". This was the second attempt to locate the pipe. The first attempt, after the September 16, 1999 storm, was unsuccessful.

Mr. Falk stated that he prepared the December 30, 1999 letter for Mr. Dennison's signature (Exhibit 16). He confirmed that the culvert which was "not functioning as intended" was at Station 266, south of Eidman's property. He stated that after heavy rains, the Hackensack River backs up, as do the streams leading to the river, so the drains do not function as originally planned. He does not believe that the culvert at Station 266 is causing the problem to Eidman's property, rather the floods result from downstream factors. The State has not asked the Town of Clarkstown to correct these problems. The witness further testified that the culvert at the northern end of Eidman's property (at Station 269 +19) was not functioning properly prior to September 1999 and had it been, it would have allowed water to travel from the east side to the west side of Route 303 under the roadway.

Mr. Falk testified that the State has maintenance responsibilities for the stream channel within the limits of its right-of-way. He does not know when the stream channel had last been cleaned of obstructions prior to the September 16, 1999 heavy rainfall. This culvert was cleaned on September 23, 1999, prior to the November 2 flood (Exhibits X and 49).

The witness stated that water in this area flows off Route 303 onto Eidman's property. On cross-examination, Mr. Falk stated that Hurricane Floyd occurred during the week of September 16, 1999. The hurricane caused widespread flooding throughout Rockland County because the pipes and drains could not handle the storm volume and intensity.

When Mr. Falk first went to the site, he could not find the drain or culvert at Station 269 +19. He stated that the inlet was buried by fill from the parking lot and pooled water. He was unaware there was a pipe buried below. He asserted that the inlet was filled in when the driveway and parking lot were expanded. When the driveway was cut into Route 303, it should have required a work permit from DOT, but no permit could be located.

Mr. Falk testified that changes and/or improvements to the Eidman property interfered with the drainage facilities. Mr. Falk stated that maintenance workers do not carry record plans since there are hundreds of miles of roads. During and after storms, maintenance workers check drains and culverts, looking for evidence of problems and clean what they observe. However, Mr. Falk noted that his staff cannot check each of the thousands of culverts in Rockland County after every rainfall. He opined that the drainage in the area is not functioning as intended because the Hackensack River floods and cannot be controlled. The witness stated that the landfill on the west side of Route 303 (across from Eidman's property) was formerly a swamp into which the stream previously discharged. He said that all drains in the area of Routes 303 and 59 lead to the Hackensack River. As a result, the drainage system periodically fails regardless of whether the State's pipes are clean or not.

Daniel C. Buzea was called by claimant and his curriculum vitae was admitted into evidence as Exhibit 48. Mr. Buzea is a principal in the firm of Leggette, Brashears & Graham, Inc., a consulting firm which studies ground and surface water conditions. Mr. Buzea has a master's degree in geology. He is not an engineer and has never designed or installed any drainage systems for a roadway, highway or property adjacent to a roadway, nor has he testified in a case regarding roadway flooding, road design or maintenance. Following the testimony regarding his background, the Court accepted Mr. Buzea as an expert to testify solely as to the geologic and hydrogeologic conditions in the area of Route 303 and Eidman's property.

Mr. Buzea visited the site in November 1999 and June 2000. On his November 1999 visit, the parking lot was full of leaves, trees and other debris. The flood water was two feet deep in the Eidman Agency building. Mr. Buzea observed the Buttermilk Creek culvert to be full of debris and sediment which were obstructing the downstream flow.

On his June 2000 site visit, Mr. Buzea determined that the debris was in the same condition and there was no change in water flow from the earlier visit. Mr. Buzea considered the weather report (Exhibit D). He stated that if the culvert and stream were not cleaned, the area would flood. He stated that Buttermilk Creek itself must be cleaned periodically and the pipe must be free of debris and sediment[4]. He opined that if the culvert at Station 266 had been widened, flooding in the area would have been prevented.

Mr. Buzea could not see the culvert pipe at Station 269 +19 or any other drainage structures on either visit. He noted that he saw no drainage ditches as he had on other highways and roads. Mr. Buzea testified that ditches would have controlled the flooding in the area and opined that if the stream were properly maintained, the flooding in the area would be reduced substantially. He also stated that if the catch basin had been working properly and both culverts were open, the drainage in the area would have improved and reduced flooding. Mr. Buzea believes that maintenance of both the stream and culvert is inadequate. He also opined that the Hackensack River had no effect on the flooding of Eidman's property because of its distance from the area.

On cross-examination, the witness acknowledged that both of his visits to Eidman's property were after floods and he did not know how long the debris he observed was in the culvert. Mr. Buzea does not know the limits of the State's right-of-way with respect to the stream and does not know who controls the stream further upstream to the east.

The witness could not determine what percentage of the Hurricane Floyd rain water would have been released onto Eidman's property if the drains at Stations 266 and 269 +19 were open and functioning properly. He stated that the majority of the flood water on Eidman's property comes from Buttermilk Creek and some is runoff from Route 303, but did not know the percentage of water from each source.

At the conclusion of Mr. Buzea's testimony, claimants rested. The State moved to dismiss for failure to prove a prima facie claim and the Court reserved decision on the motion.

Nicholas P. Pucino, a licensed professional engineer, was called by the State and his curriculum vitae admitted into evidence as Exhibit 11. Upon stipulation, Mr. Pucino was accepted by the Court as an expert in highway maintenance and design.

Mr. Pucino is a retired DOT engineer and is familiar with early DOT drainage designs used in numerous highway projects. He has experience in determining drainage areas, outfall locations, calculating water quantities and designing drainage systems. He has supervised drainage designs for many parkway reconstruction projects and has also investigated complaints and resolved problems concerning flooding and other drainage issues on existing parkways.

Mr. Pucino reviewed the record plans for Route 303. He visited the area on three occasions and examined drainage patterns and existing drainage facilities on Route 303. He also examined the effect of highway improvements and roadside developments on runoff downstream, reviewed the original culvert designs and analyzed the storm sewer outfall system for the area.

Mr. Pucino's visits to Route 303 revealed that the drainage and highway facilities shown on the original record plans reflect existing conditions. He testified that there is a 4'x5' concrete box culvert south of Eidman's property carrying Buttermilk Creek under Route 303. This culvert was extended on both ends with short sections of corrugated metal pipe. Mr. Pucino also identified the 24" outlet pipe on the northern end of Eidman's property which he testified was altered by the Town when the Town installed a 36" diameter outfall sewer where there was once a natural lowland flood plain.

The witness stated that the 1930's record plans indicate that the Eidman's property was once a lowland flood plain located seven feet below the roadway grade. Apparently, Eidman's property was raised about seven feet with fill as part of the site development. Mr. Pucino stated that the drainage outlet on the northern end of the property was flush with the remainder of the property when the road was originally constructed.

With regard to the parking area, Mr. Pucino testified that the 1970-1974 Record Plans provided a single driveway serving a smaller parking lot than exists today (Exhibit A, Sheet 3F10R1). He stated that the parking lot configuration was changed by the property owner some time between 1987 and 2001 when a new driveway was added and the parking lot extended northerly. He noted the differences in area and curb cuts between that shown in the pictures of the current conditions (Exhibit C) and the record plans. This documentary evidence belies Mr. Eidman's assertion that no changes have been made to the property other than "curbing".

The witness stated that the new driveway and parking lot expansion had a negative effect on the drainage in the area. The fill used to expand the parking lot spilled into the inlet area of the northerly 24" culvert. The owner of the property installed a catch basin and section of pipe which drained into the inlet. He asserted that the fill from the expanded parking lot (see Exhibit DD) impeded the drain's flow and buried the inlet.

Mr. Pucino testified that the west side of Route 303 had also been a vast lowland flood plain that was filled by the Town landfill. The 1930 record plans (Exhibit 28) indicate that the area west of the roadway dropped off at least seven feet. Prior to siting of the Town landfill, the State's drainage system emptied into this flood plain. When the Town filled in the flood plain, it installed a 36" diameter storm sewer and a narrow channel to carry the water south to the stream.

According to Mr. Pucino, the filling of areas on both sides of Route 303 has negatively impacted drainage in the entire area. On Eidman's property (the east side), it removed a water ponding and storage area which retained backup from overloaded highway culverts. On the west side, it raises tailwater surface elevations at the highway culvert outlets. During severe storms, the Hackensack River floods and causes tailwater resistance at the highway culvert outfalls reducing their capacity below free-flow conditions. All of these circumstances cause water to pool at the highway culvert inlets and increase flooding at Eidman's property.

Mr. Pucino opined that the concrete divider installed in 1991 does not increase flooding on Eidman's property. The divider does not act as a dam above the 4'x5' culvert because there is a large gap opposite Eidman's property. Mr. Pucino illustrated on the aerial maps (Exhibit Z) and the contour map (Exhibit I) that a 306-acre drainage basin drains into the Buttermilk Creek. He explained that the cumulative effect from the roadside developments and the filling of the lowlands on both sides of Route 303 increased the potential for overloading the 4'x5' culvert even during ordinary storms.

Mr. Pucino indicated that the climatological records and weather reports (Exhibit D - § 3 and § 4 et seq., Exhibits E - G) demonstrate that the September 16, 1999 storm (Hurricane Floyd) was a highly unusual event and of such magnitude that the highway culverts were impeded and overwhelmed by downstream conditions. The Weather Surveys (Exhibit D) reported that 10" - 12" of rain fell during a two-day period, including 7" to 8" in a 12-hour period. Mr. Pucino explained that from an engineering viewpoint, this storm equaled or exceeded a 100-year storm[5] and no highway drainage system is designed to handle events of this magnitude, even by present-day standards.

Contrary to Mr. Buzea's opinion, Mr. Pucino testified that a larger highway culvert would not have prevented flooding of the site during this storm because downstream conditions would have precluded any meaningful outflow from the culvert. During Hurricane Floyd, water backed up from the Hackensack River to the Buttermilk Creek culvert. On the Flood Insurance Map (Exhibit B), Mr. Pucino demonstrated the area expected to flood during Hurricane Floyd. It was Mr. Pucino's opinion that original drainage designs conformed to the generally accepted practices which existed at the time of the Route 303 construction. The witness stated that the road has never been reconstructed in a manner which would call for a new drainage system and the original designs were reasonable considering this entire area was an undeveloped flood plain at the time of its construction.

Mr. Pucino testified that the lesser storm that Eidman alleges flooded the property was not nearly as severe as Hurricane Floyd and the southerly culvert may have been able to handle this lesser storm. Because Mr. Pucino did not have information on the short-term intensity of the lesser storm, he could not get the downstream elevations to use in his calculations. He opined that the flooding of Eidman's property in the lesser storm event resulted from the Town storm drainage system being silted, reducing its capacity. This siltation of the outlet drainage system blocked the water in the State's 24" culvert at Station 269 +19. Mr. Pucino indicated that the inlet to this culvert was also blocked by spillage from the construction of the parking lot. Mr. Pucino stated that the silting in the Town storm drains would also cause siltation in this culvert, further reducing its capacity.

Mr. Pucino noted that the maintenance records he was provided showed that DOT timely responded to drainage complaints made by Eidman. He indicated that maintenance of the drains was not a factor in the flooding damage caused by Hurricane Floyd and repeated that Hurricane Floyd caused flooding starting at the Hackensack River and that the highway culverts could not handle this event even in pristine conditions. He stated that it is quite possible that storm debris could clog the southerly culvert during this type of storm and this contingency could not be avoided. The witness opined that, within a reasonable degree of engineering certainty, the core problem with Eidman's property is its location in a flood plain where backup from the Hackensack River can inundate the land or make it impractical to drain. Mr. Pucino stated that Eidman's property is located in a basin with a hillside behind and an elevated highway in front and is therefore highly vulnerable to flooding.

On cross-examination, Mr. Pucino stated that the November 2, 1999 storm was a lesser storm than Hurricane Floyd and was less than a 15-year storm. He stated that State maintenance workers drive the roads and inspect the drains which are maintained on an as needed basis.

The claim alleges negligence by the State in the design, planning, construction and maintenance of Route 303 and the drain structures appurtenant thereto in the vicinity of Eidman's property.

Under the doctrine of qualified immunity, the State may not be held liable unless it is established that the roadway and/or drainage structures were designed without adequate study or based upon an unreasonable design decision (Friedman v State of New York, 67 NY2d 271, 284; Weiss v Fote, 7 NY2d 579). Here, the evidence established that the roadway was designed and constructed in accordance with the accepted standards of the day in the 1930s. The Court finds no credible evidence that the roadway and drainage structures were designed without adequate study or were based upon an unreasonable design decision and the State is therefore immune from liability on any design basis.

In New York State, it is well settled that a governmental unit is not required to provide a drainage system sufficient to dispose of all surface waters flowing as a result of the natural drainage, grading and paving of streets (Fox v City of New Rochelle, 240 NY 109; Prime v City of Yonkers, 192 NY 105; Friedland v State of New York, 35 AD2d 755; Klein v Town of Pittstown, 241 App Div 202; Beck v City of New York, 23 Misc 2d 1036, affd 16 AD2d 809). Liability may attach, however, if the governmental unit collects surface water into channels and discharges it onto private property (see Fox v City of New Rochelle, 240 NY 109, supra; DiRienzo v State of New York, 187 AD2d 879; Musumeci v State of New York, 43 AD2d 288, lv denied 34 NY2d 517).

The evidence at bar established that the State used the culverts at Stations 266 and 269 +19 to collect surface water and direct it under the roadway to the west side of Route 303. This system was clearly intended to direct water away from Eidman's property. While it has been established that water flooded Eidman's property, the Court finds that claimants have failed to prove their claim of improper construction and maintenance. Mr. Buzea testified that both times he visited the area, he saw debris in the stream and culverts and opined that the State did not properly maintain either the stream or the culverts. However, both occasions followed storm events and he was not able to ascertain how long the debris (leaves, tree limbs, etc.) was in the stream and culverts. While the evidence did establish that the defendant "lost track" of the pipe on the northern end of Eidman's property and that the State could have better maintained that structure, the Court finds that claimants have failed to establish by a preponderance of the credible evidence that the alleged negligent maintenance was a proximate cause of the flooding of the property. Every witness, including Mr. Eidman, testified that the blocked culvert at Station 269 +19 was a minor and secondary contributor to the floods at issue and the main concern of all involved was clearly the Buttermilk Creek culvert. Finally, it is demonstrably clear that either Mr. Eidman, or a predecessor in title, took actions which buried and impeded the northern culvert thereby contributing to the malfunction at that location to at least the same extent as defendant.

Based upon the evidence adduced at trial, the September 1999 storm (Hurricane Floyd) was a 100-year storm which exceeded the design capacity of the system. It was not improper maintenance, but the extraordinary storm event which caused the September 1999 flooding of Eidman's property.

As to the November 2, 1999 storm, at one point Mr. Pucino testified that the storm was less than a 15-year storm and at another that it was less than a one-year storm. The Court has considered finding that the State did not properly maintain the culvert prior to the November 1999 storm and whether a finding of negligence for that flood is indicated. However, on September 23, 1999 (one week after Hurricane Floyd), DOT completed a work order cleaning the blocked culvert on Route 303 "opposite the Clarkstown landfill (Buttermilk Creek)" with a backhoe (Exhibit X; see also Exhibit 49) less than six weeks before the November 1999 storm. Absent any evidence that the State had notice of debris collecting in the culvert or stream between September 23 and November 2, 1999, the Court cannot conclude that negligent maintenance of the culvert and stream was the proximate cause of the November flooding of Eidman's property. Although in the December 30, 1999 letter (Exhibit 16) the State noted that the culvert at Station 266 was not functioning as intended, this was due to downstream conditions at the Town landfill over which the State had no control rather than improper design or maintenance by the State.

Claimants have also failed to establish by a preponderance of the credible evidence that the State had actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct it. There was no testimony that any surface water was channeled to the stream by the State's culverts or that the State introduced any water in excess of the natural capacity of the stream (see Musumeci v State of New York, 43 AD2d 288, supra).

Finally, the Court has considered whether any act or omission by the State has created a trespass upon Eidman's property.

It has been held that "[t]respass 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 Airlines, 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 the drainage system ancillary to the construction of Route 303 in or about 1932. 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 from Route 303 into two culverts along the side of the roadway. The intended result of this system was, therefore, diversion of water from Eidman's property.

Having determined that the "intrusion" in question did not result from the basic design of the drainage system, the trespass analysis now turns to whether or not the creation of the overflow was willful or "so negligent as to amount to willfulness" (see Phillips v Sun Oil Co., 307 NY 328, supra). I conclude that it was not.

The testimony of Mr. Pucino indicated that the design of roadway drainage systems generally comprehend capacity for a storm intensity of the 10 to 20-year storm event. He testified 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. Other than Mr. Pucino's statement that the drainage system met the then current standards, there was no evidence as to what the standards were in the 1930s when the Route 303 drainage system was originally designed and installed. However, they are irrelevant since even in the year 2005 a drainage system would not be designed to handle storm events of the intensity of Hurricane Floyd. The evidence in the record does not establish 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 in September 1999 which caused the intrusion onto Eidman's property, the Court finds 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 above. In addition, since claimants failed to establish the cause of the November 1999 flooding was the State's negligent maintenance of the culvert and stream, the Court cannot find that the water flooded Eidman's property as a result of the State's willful conduct. As a result, any claim for trespass is also dismissed.

Therefore, in accordance with the foregoing, the claim is dismissed. All motions made at trial upon which decision was reserved are now denied. The Chief Clerk is directed to enter judgment accordingly.

April 7, 2005
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1]West Nyack is a hamlet in the Town of Clarkstown. Throughout this decision it will be referred to as the Town of Clarkstown or the Town.
[2] Later testimony identified this stream as Buttermilk Creek.
[3] All quotes, unless otherwise indicated, are from the Court's Trial Notes.
[4] It is noted that the record indicates that the State's right-of-way includes little, if any, of the creek bed itself.
[5] Defined as a storm event which has a 1 in 100 probability of occurring in a given year.