New York State Court of Claims

New York State Court of Claims

HERITAGE VILLAGE v. THE STATE OF NEW YORK, #2007-015-228, Claim No. 111553, Motion No. M-73606


Claim against the State for flood damage to property allegedly caused by independent contractor on highway reconstruction project was dismissed. State did not supervise or control the means or methods of the contractor's work and no exception to the general rule against liability for acts of an independent contractor applied.

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:
Lombardi, Walsh, Wakeman, Harrison, Amodeo & Davenport, P.C.By: Paul Davenport, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Burke, Scolamiero, Mortati & Hurd, LLPJudith B. Cavanaugh, Esquire
Third-party defendant’s attorney:

Signature date:
September 11, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for summary judgment dismissing this claim pursuant to CPLR 3212. For the reasons which follow, the motion is granted. Claimant, Heritage Village Apartments, LLC, is the owner of an apartment complex on State Route 155 in Guilderland, New York, and alleges that on October 29, 2003 it sustained water damage due to the negligence of the defendant in diverting water onto its property during the course of a road reconstruction project. Specifically claimant alleges the following:
As part of the work being done on NYS Route 155, vegetation, shrubs and trees along a 10-15 foot wide area on the east side of New York State right-of-way was cleared, moved and otherwise disturbed, thereby allowing storm water runoff, dirt and silt to travel from the highway and the right-of-way and onto the property of the claimant and into the claimant's Building # 101. The dirt and silt caused the storm drains on the claimant's property to become clogged and non-functioning. The free flowing storm water runoff and the clogged storm drains resulted in substantial flooding in the claimant's Building # 101, causing damage to the building, the grounds around it and the tenants' residences, as well as loss of income to the claimant (claim, ¶ 5).
Claimant alleges that the defendant was negligent in removing a barrier of vegetation and changing the topography of the land without implementing a storm water prevention plan or any other measures to prevent the water and silt run-off onto its property (claim ¶ 7).

In support of its motion for summary judgment, the defendant argues that on or prior to the date of this occurrence it performed no work on State Route 155 in the vicinity of the claimant's property and therefore owed no duty to the claimant nor breached any duty to the claimant. In addition, the defendant argues that the conduct of the claimant in clogging or failing to unclog the drainage pipes on its property was the sole proximate cause or a superseding cause of the damage sustained .

The defendant submitted the affidavits of Charles Pafundi, the Engineer in Charge of the project, and Robert C. Meyer, the design engineer for the project. Mr. Pafundi states that, as the Engineer in Charge, he was responsible for overseeing the contractors and subcontractors on a project for the reconstruction of Route 155 from Albany to Voorheesville, New York pursuant to Contract Number D-259187. Due to the need for complex and time-consuming utility work around the area of the claimant's premises, Mr. Pafundi avers that it was decided to begin the construction of the surface of the roadway at the Voorheesville end of the roadway in order to allow the utility companies to begin their work in Albany (see defendant's Exhibit E ¶ 6). He states that according to the documents and records of this project, no construction work was performed by the Department of Transportation to change the topography of the claimant's property or the surrounding property. Mr. Pafundi stated that the defendant did not remove any vegetation from the property surrounding the claimant's property or the right-of-way abutting the claimant's property nor did it contract for the removal of vegetation from this area. Notably, no contract for the performance of the work was submitted.

Mr. Pafundi sets forth in his affidavit that on October 29, 2003 he received a telephone call from a representative of the claimant regarding flooding on its property. Mr. Profundi inspected the property together with the claimant's groundskeeper and they were unable to determine the cause of the flood. He states that there was no "significant" flow of debris or silt from Route 155 onto the property and that there was no "significant" flow of water from Route 155 onto the property that carried debris or silt (defendant's Exhibit E ¶ 15). Mr. Profundi states that he later learned from an undisclosed source that the flood was caused by a clogged drain on the claimant's property and that the drain became clogged due to the actions of some other entity (defendant's Exhibit E ¶ 16). Mr. Meyer states in his affidavit that the roadway near the claimant's property required complex and time consuming utility work which was to be completed before the construction of the roadway, a fact which was discussed in a meeting with the various utilities in January of 2003. He states that "[a]fter construction and utility work on the project was well underway, I was informed that Heritage Village experienced flooding on October 29, 2003" (defendant's Exhibit F, ¶ 6) . Mr. Meyer avers that "[t]o the best of my knowledge, DOT/NYS had not yet performed construction work in the vicinity of Heritage Village such as to disturb the pre-existing topography along the right-of-way abutting their property and Route 155" (defendant's Exhibit F, ¶ 7). Based upon his inspection of the property in November of 2003, Mr. Meyer states that the buildings which sustained the flood damage are at a lower grade than the surrounding lawn and an open-ditch drainage system was not directing water away from the buildings. He states that it was his observation that the outflow opening "could" become easily blocked by debris if not carefully maintained and the inlet pipes on the patios appeared susceptible to clogging with leaves (defendant's Exhibit F, ¶ 12). He also states that it is "possible" that the area where the property maintenance crew deposited leaves and grass clippings into the woods is where the discharge drainage pipes "should" be located (defendant's Exhibit F, ¶ 14). He states that after a period of time leaves and grass clippings "could" rise to a level that would block the discharge of water from the drainage pipes causing the water to back up into the area from which it had been drained (defendant's Exhibit F, ¶ 14) . Mr. Meyers then states the following in the final paragraph of his affidavit:
Additionally, it should be noted that the utility companies were scheduled to relocate a gas line and lay a new phone line in the vicinity of Heritage Village. The phone work would have included boring under the roadway. Boring is a process whereby work is performed underneath a roadway without disturbing the surface of that roadway. However, in order to engage in this work under the roadway, a significantly large pit needs to be created on the shoulder of the road to allow the proper machinery to be placed below the surface of the roadway. This large access hole could change the topography of the area (defendant's Exhibit F, ¶ 16 [emphasis added]).

Additionally, Mr. Meyer states that a large utility box, which he believed belonged to Verizon, had been placed where swales connected to channel water away from the buildings and was large enough to block it (defendant's Exhibit F, ¶ 13).

In opposition to the motion, the claimant submitted affidavits from James T. Burns, a partner in Heritage Village Apartments, LLC, and Henry V. LaBarba, a Professional Engineer. Mr. Burns avers that "the utility relocation work performed along the State of New York's right-of-way along Route 155 as part of the State's road reconstruction work completely altered the topography in that area" (affidavit of James T. Burns, ¶ 4). Annexed as Exhibit A to Mr. Burns' affidavit are photographs which he states depict the area of the flooding and the absence of vegetation which existed prior to the start of the work. Mr. Burns also avers that the utility relocation work changed the grade, making the flooded area significantly lower than the roadway and sidewalk. He states that during the construction, no remedial measures were utilized to prevent flooding. Based upon his personal observations Mr. Burns states that prior to the construction work there was never any flooding in this area because the water flowed along the roadway into the existing storm drainage system on Route 155. After October 29, 2003, Mr. Burns observed the flow of water from Route 155, over the right-of-way and, "instead of continuing down to the existing drainage system, it changed course and ran over the area where the utility work was performed and where the topography was changed, and into our apartment complex, inundating Building # 1" (Burns affidavit, ¶ 7).

Mr. LaBarba states that based upon his review of the project documents as well as his personal involvement in the negotiation of a temporary easement on behalf of the claimant the roadway improvement project for State Route 155 included that portion of the roadway in front of the claimant's premises and the relocation of utility lines on the State's right-of-way adjacent to claimant's property. He states that he was called to the premises on October 29, 2003 and observed that the water had run through the right-of-way owned by the State of New York, flooding the claimant's property . Mr. LaBarba opined that the flood was caused by the removal of vegetation and top soil from the right-of-way, which changed the topography of the land and caused the flow of water onto the claimant's property. Based upon his review of the project documents, Mr. LaBarba states that the utility reconstruction project was part of the NYS DOT Project # D-258197 and was overseen by the State of New York. He opined that the defendant was negligent in failing to implement a design or plan to prevent the occurrence of flooding on the claimant's property. "As there were no silt fences, hay bales, temporary drainage or other remedial measures to divert storm water from flowing onto Heritage Village property after the removal of the natural barrier, the rain water from the October 29, 2003 storm flowed from the right-of-way onto the property, flooding the apartment complex" (LaBarba Affidavit, ¶ 18).

The defendant sufficiently established its entitlement to summary judgment as a matter of law by demonstrating that it performed no work in the area where the claimant's premises was located and the flooding allegedly occurred. According to the defendant, the only work performed in the area prior to the incident was the relocation of the utility lines by a utility company over whom the defendant exercised no supervision or control.

In opposition to the motion, claimant submitted the affidavit of Mr. LaBarba who opined based upon his review of the project documents – copies of which were not submitted to the Court– that the utility work was part of the improvement project for State Route 155 and included that portion of the roadway in front of the claimant's premises. As a general rule, however, a party who retains an independent contractor is not liable for the independent contractor's negligent acts (Kleeman v Rheingold, 81NY2d 270 [1993]). The commonly accepted rationale for the rule is that absent the right to supervise and control the manner or method by which the work is performed, the risk of loss is more sensibly placed on the contractor (id. at 273; Duffy v Wal-Mart Stores, Inc., 24 AD3d 1156 [2005]). Here, there is no evidence that the defendant supervised or controlled the manner or method by which the utility company performed its work so as to overcome the application of the general rule. Nor has an exception to the general rule been raised which would permit the conclusion that the defendant is vicariously liable for the conduct of the utility company[1]. To the contrary, case law supports the conclusion that, in this context, the defendant did not have a nondelegable duty with respect to the negligent performance of the contractor's work (Morris v State of New York, 10 AD2d 754 [1960]; Strickland v State of New York, 13 Misc 2d 425 [1958]; cf. Lopes v Rostad, 45 NY2d 617 [1978]). Accordingly, no basis exists to hold the defendant vicariously liable for the conduct of the utility company.

Claimant argues alternatively that pursuant to Highway Law § 30 (14) the defendant is liable for the damage to its property caused by the highway reconstruction project. This section, entitled "Acquisition by the state of property required for the construction and reconstruction of state highways and structures thereon", provides the procedure to be used by the State in acquiring property for the purpose of constructing or reconstructing state highways. It also contains a provision for damages to property not acquired by the State as follows:
14. If the work of construction or reconstruction of any highway project shall cause actual damage to property not acquired as above provided, the state shall be liable therefor, but this provision shall not be deemed to create any liability on the part of the state not already existing in law. Claims for such damage may be adjusted by the commissioner of transportation, if the amounts thereof can be agreed upon with the persons making such claims, and any amount so agreed upon shall be paid as a part of the cost of the construction or reconstruction of such highway project as prescribed by this section. If the amount of any such claim is not agreed upon, such claim may pursuant to the eminent domain procedure law, be presented to the court of claims which is hereby authorized to hear such claim and determine if the amount of such claim or any part thereof is a legal claim against the state and if it so determines, to make an award and enter judgment thereon against the state, provided, however, that such claim is filed with the court of claims within three years after the final acceptance of the work by the commissioner of transportation (emphasis added).

In those cases in which this section has been utilized as a predicate for liability, as the title of the section denotes, the highway construction which allegedly caused the damage to property not acquired followed an appropriation of property by the State for the purposes of highway construction (see State of New York v Posillico, Inc., 277 AD2d 753 [2000]; DSS Enters. v State of New York, 162 AD2d 1027 [1990]; Williams v State of New York, 34 AD2d 101 [1970]; cf., Selig v State of New York, 10 NY2d 34 [1961]. Indeed, review of the bill jacket reflects that the statute was enacted for the sole purpose of authorizing the State to acquire title to lands for state highway purposes and to establish the manner of acquisition (see Senate Introducer Letter in Support dated March 20, 1944, Bill Jacket, L 1944, ch 544). Nothing in either the statute or the bill jacket reflects that it was the intent of the legislature to create a nondelegable duty on the part of the State, which did not otherwise exist, with respect to property damage occurring outside the context of an appropriation. This conclusion is made more definitive by the inclusion of the statutory caveat that "this provision shall not be deemed to create any liability on the part of the state not already existing in law" (Highway Law § 30 [14]). As there is no basis to conclude that the State was subject to a nondelegable duty under the facts of this case the defendant may not be held liable for the alleged negligence of the utility company over whom it exercised no supervision or control. Accordingly, the defendant's motion for summary judgment is granted and the claim is dismissed.

September 11, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion dated June 21, 2007;
  2. Memorandum of law of Judith B. Cavanaugh dated June 21, 2007;
  3. Affirmation of Judith B. Cavanaugh dated June 21, 2007 with exhibits;
  4. Affidavit of Charles Pafundi sworn to June 21, 2007 with exhibits;
  5. Affidavit of Robert C. Meyer sworn to June 21, 2007;
  6. Affidavit of Paul E. Davenport sworn to July 6, 2007;
  7. Affidavit of Henry V. LaBarba sworn to July 5, 2007 with exhibits;
  8. Affidavit of James T. Burns sworn to July 6, 2007 with exhibits;
  9. Undated Memorandum of law of Paul E. Davenport filed July 6, 2007.
  10. Affirmation of Judith B. Cavanaugh dated July 9, 2007.

[1]. The Court of Appeals in Kleeman v Rheingold (81 NY2d at 274), identified three exceptions to the general rule: (1) negligence of the employer in the selection of the contractor; (2) employment for work that is inherently dangerous; and (3) instances in which the employer is under a specific nondelegable duty.