New York State Court of Claims

New York State Court of Claims
KEENAN v. THE STATE OF NEW YORK, # 2007-031-032, Claim No. 113059, Motion No. M-73024


Questions of fact exist concerning whether Defendant's entry onto Claimant's property exceeded the scope of the Supreme Court order granting access. To the extent that Defendant's actions did exceed the authority granted, Claimant may have a valid cause of action for either trespass or defacto appropriation. Defendant's motion for partial summary judgment is denied.

Case information

UID: 2007-031-032
Claimant(s): DAVID KEENAN
Claimant short name: KEENAN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 113059
Motion number(s): M-73024
Cross-motion number(s):
Claimant's attorney: DANIEL M. DiMATTEO, ESQ.
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 12, 2007
City: Rochester
Official citation:
Appellate results: 57 AD3d 1504
See also (multicaptioned case)


The following papers, numbered 1 to 6, were read on motion by Defendant for partial summary judgment:

1) Defendant's Notice of Motion, filed March 7, 2007;

2) Affirmation of James L. Gelormini, Esq., dated March 6, 2007, with attached exhibits;

3) Defendant's Memorandum of Law, dated March 6, 2007;

4) "Affidavit" of David Keenan, dated March 13, 2007;

5) Affirmation of Daniel M. DiMatteo, Esq., dated March 14, 2007;

6) Filed documents: Claim and Answer.

The underlying claim, which was filed on November 30, 2006, involves real property owned by Claimant and located in the Town of Gainesville, New York. The claim purports to assert a cause of action for conversion, trespass and de facto appropriation relating to the Defendant's alleged entry, use and destruction of portions of Claimant's real and personal property. According to Claimant, on September 1, 2006, employees or agents of the State Department of Environmental Conservation ("DEC") entered his property "with heavy excavation equipment, pumps and demolition equipment. They drained the claimant's pond, killed his fish and wildlife contained in said pond. They uprooted all of the claimant's fruit and other trees. They removed and intentionally destroyed the claimant's trailers and personal property . . . They have installed trailers on the premises and created a parking lot for their equipment and have exercised exclusive dominion and control of the claimants [sic] property" (Claim, par. 3.).

With this motion, Defendant seeks partial summary judgment dismissing the trespass and de facto appropriation causes of action. In support of its motion, Defendant points out that a portion of Claimant's property, and in particular the pond located on Claimant's property, was part of an inactive hazardous waste landfill. According to Defendant, all proper steps were taken and a remediation program for the site was adopted pursuant to a Record of Decision dated March 31, 1999. Pursuant to the remediation, Defendant sought and, on December 7, 2005, received an order from Acting Supreme Court Justice Mark H. Dadd which granted Defendant "access" to Claimant's property for "the purpose of implementing the remedial program" (Defendant's Ex. 1, final par.). Defendant argues that, pursuant to Justice Dadd's order, its agents lawfully entered and remained on Claimant's land. Accordingly, Defendant asserts that Claimant may not maintain an action for trespass or de facto appropriation.

I find that Defendant has adequately demonstrated that it was duly authorized to enter Claimant's land for the purposes of implementing the remedial program. Defendant's papers also clearly demonstrate that part of the remediation called for the draining and grading of the pond on Claimant's property. These facts are uncontested by Claimant.

Claimant argues, however, that Defendant vastly exceeded the scope of Acting Justice Dadd's order and that, to the extent Defendant exceeded the authority of the order, Claimant's action for trespass and de facto appropriation is viable. Claimant has asserted, and Defendant has failed to rebut that, although the Defendant was granted access to Claimant's property, its use of Claimant's property was not just for access, but was far more extensive. According to Claimant, Defendant's contractors caused the "rampant obliteration of most plant life and animal life" (Keenan Aff., par. 10). Also, "substantial portions of Keenan's lands were bulldozed, razed and damaged by heavy construction equipment" (DiMatteo Aff., par. 11). Claimant asserts that "[i]n addition to the installation of the trailers, barriers and locked gates, the DEC and its agents have left excavators, bulldozers, pumps, fuel tanks, trailers and tanks on the premises and eliminated any use by Keenan . . . " (DiMatteo Aff., par. 14).

In any application for summary judgment, the moving party bears a heavy burden in 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). Based on the record before me, I cannot at this time conclude that Defendant's use of Claimant's land was authorized. I find that there is a question of fact concerning the use Defendant made of Claimant's land and whether or not that use exceeded the authority granted Defendant by Acting Supreme Court Justice Dadd. To the extent that Defendant did exceed this authority, Claimant's causes of action for trespass and de facto appropriation are properly asserted.

Accordingly, it is hereby

ORDERED, that Defendant's motion for partial summary judgment is denied.

June 12, 2007

Rochester, New York


Judge of the Court of Claims