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
, 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
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
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
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
. He opined that if the
culvert at Station 266 had been widened, flooding in the area would have been
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
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
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
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
and no highway
drainage system is designed to handle events of this magnitude, even by
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
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
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,
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
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.