Defendant has adequately demonstrated that damage to Claimant's property from 100 year flood was an act of God, not the result of negligence on Defendant's part. Claimant has failed to come forward with evidence in admissible form demonstrating either negligence on Defendant's part or notice of the allegedly defective condition. Claim dismissed.
|Claimant(s):||KATHLEEN KNOSPE, Individually and as Parent and Natural Guardian of RYAN M. KNOSPE and KEVIN T. KNOSPE, infants|
|Claimant short name:||KNOSPE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RENÉE FORGENSI MINARIK|
|Claimant's attorney:||DeMARIE & SCHOENBORN, P.C.
BY: SEAN D. SCHOENBORN, ESQ.
|Defendant's attorney:||HON. ELIOT SPITZER
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 19, 2005|
|Official citation:||9 Misc 3d 1126(A)|
|See also (multicaptioned case)|
The following papers, numbered 1 to 7, were read on motion by Defendant for summary judgment:
1. Notice of Motion, filed March 3, 2005;
2. Affidavit of Richard B. Friedfertig, Esq., sworn to March 2, 2005, with attached exhibits;
3. Affidavit of Lallman Rambali, P.E., sworn to March 2, 2005, with attached exhibits;
4. Affidavit of Sean D. Schoenborn, Esq., sworn to May 17, 2005;
5. Affidavit of Kathleen Knospe, sworn to April 29, 2005;
6. Affidavit of Philip Marcello, sworn to May 16, 2005;
7. Correspondence of Richard B. Friedfertig, Esq., dated August 25, 2005.
Claimant filed claim number 101043 on September 10, 1999 against the State of New York alleging that the State negligently designed and maintained a culvert located near Claimant's residence at 10419 Creek Road, Route 39, in the Town of Sardinia, New York. Claimant's property was damaged in floods that occurred on June 26, 1998 and July 9, 1998. Claimant alleges that her "house and property were severely damaged . . . as rain water and mud flowed into [her] house across and from Route 39" (Claimant's Affidavit, par. 4). Claimant further alleges that, in addition to damage to her real property, the floods damaged her household furnishings and other personal property. Finally Claimant alleges that she and her two children, Ryan M. Knospe and Kevin T. Knospe, have suffered psychological injuries for which they require psychiatric treatment.
With this motion, Defendant seeks summary judgment and dismissal of the claim, asserting that the heavy rainfall which led to the flooding was of such unusual magnitude that it "exceeded the design capacity of the [drainage] structure and hence lead [sic] to overtopping" (Rambali Affidavit, par. 13 ). Defendant attached numerous exhibits to its motion papers, including evidence of heavy rainfall (both before and between the two major storms) and flash flooding (Exhibit D). Defendant also demonstrated that a State of Emergency had been declared and that then President Clinton had approved Federal Disaster Assistance to the victims of the flood in the three county area in which Claimant's property was located (Exhibit E). Defendant argues that many other properties in the three county emergency area were damaged as a result of the flooding, and that Claimant's assertion that the damage was caused by an improperly designed or maintained culvert is illogical.
Lallman Rambali, P.E., a New York State Department of Transportation Regional Hydraulics Engineer, stated that the culvert system protecting Claimant's property was designed in accordance with all applicable standards. Specifically, Claimant's property was protected by a culvert designed to accommodate flooding associated with a 50 year storm. Mr. Rambali indicates, however, that the rainfall and flooding that occurred in June and July of 1998 was beyond the 50 year storm standard, and equaled that of a 100 year storm. Therefore, Defendant concludes that the damage to Claimant's property and the trauma she and her children experienced were due to the extreme weather conditions and not the negligent design, construction or maintenance of the drainage system.
The Defendant, like any other party, is responsible, in the operation and management of its institutions, only for hazards reasonably to be foreseen (see Flaherty v State of New York, 296 NY 342, 346) and the duty to exercise reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513). In any application for summary judgment, the moving party bears a heavy burden of establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). I find that Defendant has met this burden.
When the moving party has successfully met its burden, the party who opposes a summary judgment motion must "assemble, lay bare and reveal his proofs, in order to show that the matters set up in his [pleading] are real and are capable of being established upon a trial" (DiSabato v Soffes, 9 AD2d 297 at 301; appeal dismissed, 11 AD2d 660). "Bald conclusory assertions" (Ehrlich v American Moninger Greenhouse Mfg. Corp., 26 NY2d 255, 259) and the "shadowy semblance of an issue" cannot, by themselves, defeat a motion for summary judgment (DiSabato v Soffes, supra, at 300).
In opposing Defendant's motion, Claimant has failed to refute Mr. Rambali's showing that the culvert was designed and constructed in accordance with applicable standards. Claimant has not submitted an expert's affidavit indicating how the State was negligent or, assuming negligence, how such negligence was causally related to the damages Claimant and her children sustained. Further, the record before me indicates that the magnitude of the flooding was greater than the culvert could or was even designed to handle, and this caused the flooding of Claimant's property. Despite Claimant's belief that Defendant's failure to properly construct and maintain the culvert led to the damages she sustained, some sort of expert proof is required to demonstrate that the State failed to comply with contemporary standards of highway design, maintenance, repair or upkeep (Nyberg v State of New York, 154 Misc 2d 199; Klingler v State of New York, 213 AD2d 378).
Claimant does argue, however, that even without an expert, a question of fact exists, at least with regard to Defendant's maintenance of the culvert. Claimant and Claimant's neighbor, Philip Marcello, provided affidavits stating that weeds and goldenrod blocked the entrance to the culvert at or about the time of the flooding. Claimant also asserts that she believes that Defendant had notice that the culvert was blocked and not performing properly prior to June of 1998. This assertion, however, is merely speculative as Claimant has failed to provide any admissible evidence that Defendant had notice of any defect in the culvert prior to the first storm which occurred on June 26, 1998.
With regard to maintenance of the culvert, the record demonstrates that Defendant's workers inspected the culvert two times between the June 26 and the July 9, 1998 storms. Defendant argues that there is no evidence that indicates that the culvert was blocked prior to the first storm. According to Defendant, any blockage of the culvert was the result of the 100 year storm and of the flooding, not the reason for the flooding. Department of Transportation employees cleaned out the culvert on both the 5th and 7th of July 1998, but the "very heavy extended rain . . . basically undid 50% of the clean up and culvert cleaning [the DOT] had done" (Exhibit H).
Apart from Claimant's speculative assertions, there is nothing before me which indicates that the maintenance of the culvert had anything to do with the flooding of Claimant's property. Assuming, arguendo, that the culvert was not functioning properly prior to the first flood, and that this contributed to the flooding of Claimant's property, there is no indication that Defendant had notice of this condition and failed to take reasonable steps to correct it. Nothing in the record demonstrates that the State either created or had actual or constructive notice of a defective condition relating to the culvert. Without notice of the alleged defect, either actual or constructive, Defendant cannot be cast in damages (Bethel v New York City Transit Auth., 92 NY2d 348; Babbie v Boisvert, 281 AD2d 845). In fact, the storms were so severe that despite cleaning the culvert twice in the days between the two storms, the flood waters were too much for the culvert to handle.
Accordingly, it is hereby
ORDERED, that Defendant's motion for summary judgment is granted and the claim is dismissed in its entirety. The Clerk of the Court is directed to close the file.
September 19, 2005
Rochester, New York
RENÉE FORGENSI MINARIK
Judge of the Court of Claims