The case proceeded to trial on April 23, 2008.
Ronald A. Bova was the first of two witnesses called to testify on the
claimant's behalf. Mr. Bova related that he has been a Consulting Engineer for
approximately twenty-five years and is a licensed Professional Engineer in both
New York and Vermont. His work history includes employment with various
engineering consulting firms as well as the New York State Department of
Transportation and the New York State Thruway Authority.
Mr. Bova was first consulted regarding Canal Street and the matters at issue
herein in 2005. Canal Street is located above the western bank of the Champlain
Canal and runs in a northerly direction approximately 1200 feet beginning at the
Fulton Street Bridge. It then turns at a "dogleg" and continues in a westerly
direction to Route 32 (TR 21) 
. The Champlain
Canal is located at the base of the western bank and runs roughly parallel to
Canal Street. A right-of-way owned by the Town of Waterford extends north
from the dogleg to the northern limits of what was once a schoolhouse and is now
owned by the Northside Fire District. Mr. Bova testified that from his review of
the records the State of New York owns the Champlain Canal.
As part of his investigation, Mr. Bova inspected the 1200-foot area of Canal
Street from Fulton Street north, took photographs and observed the banks of the
canal. He also secured the performance of soil borings, the digging of a test
pit, and preparation of a topographical survey. He testified that a
topographical survey records elevations used in preparing a cross-section of the
western bank slope. The soil boring was performed to determine the depth at
which bedrock was encountered. The test pit was dug to determine the nature of
the soils (Tr. 25).
According to the witness, the photographs received as claimant's Exhibit 1
depict the top of the western bank of the canal and were taken at various times
from the 1990's to 2001. Mr. Bova testified that these photographs reflect both
the movement of a fence and guiderail at the top of the slope and cracking of
the pavement on Canal Street (Tr. 29-30).
Exhibit 2 is an excerpt of a tax map of the area. The witness indicated that
the Town of Waterford's right-of-way extends approximately 125 feet south of the
dogleg (just north of the tip of the pie-shaped property denoted as "4" on
Exhibit 2) (Tr. 177-178), 275 feet north of the dogleg (Tr. 182), and 350 feet
down the western bank of the canal to the blue line (Tr. 176). The blue lines
located on the eastern and western banks of the Champlain Canal delineate the
boundaries of State- owned property and are reflected on a survey map dated
as well as the 2006 topographical survey
conducted at the request of Mr. Bova (Exhibits 13 and 13-A).
Referencing Exhibits 3 and 4, Mr. Bova testified that in 1870 the State called
for the enlargement of the Champlain Canal. Exhibit 3 states that the
enlargement was required to "a six-foot depth, a 58-foot surface width, and a
44-foot bottom width." Although Mr. Bova is unaware of the existence of work
orders, contracts, as-built drawings or any other documentation indicating the
performance of the enlargement work in the area at issue, he testified that
based upon his review of "record mapping", the canal was in fact widened by
approximately nine or ten feet (Tr. 46-47). According to the witness, a map
pre-dating the enlargement of the canal reflects that Canal Street continued in
a northerly direction behind what was then a schoolhouse (now a firehouse).
Maps post-dating the enlargement reflect the termination of Canal Street at the
dogleg, indicating, according to Mr. Bova, that the northern portion of Canal
Street was encroached upon by the canal enlargement thereby necessitating the
construction of the dogleg (Tr. 41-42, 47-50). Mr. Bova also referred generally
to an annual engineering report for the year 1867 reflecting improvements to be
made to the canal system (see Exhibit 5).
Claimant argues that the canal enlargement was significant because it increased
the steepness of the western bank of the canal making it more susceptible to
erosion (Tr. 42). As will be set forth in more detail below, Mr. Bova testified
that the slope of the western bank of the canal in the northernmost section of
Canal Street is a one-on-one slope while industry standards permit a slope not
Mr. Bova testified that a soil boring performed in the area of the dogleg
where Canal Street turns west toward Route 32 revealed that bedrock was first
encountered at a depth of ten feet. It also established that the "overburden"
above the bedrock was comprised of silty loam soil (Tr. 55-57, 61-62). The soil
boring was performed by Soil & Material Testing, Inc., but the one
paragraph report prepared following the test fails to reflect the location at
which the test was performed (Exhibit 8). Mr. Bova described the western bank
of the canal as composed of outcroppings of undulating soft shale covered by
what he described as "Rhinebeck silt loam" overburden (Tr. 55).
A test pit was dug 100 feet south of the soil boring, in the area of Canal
Street where there was cracking pavement (Tr. 57). Mr. Bova testified that the
test pit revealed no rock within a depth of six feet and determined that the
soil at the location was Rhinebeck soil (Tr. 57). In addition to the soil
boring test performed at the request of Mr. Bova, soil borings performed on the
western bank of the canal in the area of the Fulton Street Bridge by the
Department of Transportation in 2004 indicate that rock was encountered at a
depth of approximately 13 feet (Tr. 59-61; Exhibit 7).
Mr. Bova was shown a slope inspection report dated March 28, 1995 prepared by
the New York State Thruway Authority. He stated that he disagreed with various
aspects of the report, including the author's conclusion that the surface of the
slope was shale bedrock with "a thin layer of detritus, composed of soil, shale
fragments and miscellaneous fill" (Exhibit 9) (Tr. 66-68). The author of the
report also concluded that "[a]reas on the slope may experience a one to two
feet deep [sic] sliding of the surface material, otherwise the slope is
stable" (Exhibit 9).
According to Mr. Bova, evidence of what he described as alligator cracking of
the Canal Street pavement is an indication that the western bank of the Canal
is unstable and the infrastructure under the roadway is being compromised as a
result. The primary cause of the instability, according to Mr. Bova, is
erosion at the toe of the slope of the western bank, which he defined as the
area where "the slope meets the bottom of the channel. . ." (Tr. 70-71). He
described the erosion occurring at the toe of slope, and its effect, in the
Mr. Bova testified that he was aware of an event that occurred in September
2003 (Tr. 148-149) in which a "sheer failure down below the surface [of the
western bank] . . . caused the entire area then to let go down into the
channel" (Tr. 49). He opined that the sheer failure or landslide as he called
it was not due to surface water runoff but to "a combination of subsurface
ground water and the nature of the steepness of that slope at that location
prior to the '03 incident" (Tr. 151). Following this sheer failure, the Town
of Waterford made emergency repairs on the bank of the slope in the area of the
dogleg (Tr. 150-151).
In Mr. Bova's opinion, the only acceptable method of stabilizing the slope of
the canal's western bank is to install two sections of pilings - one at the toe
of the slope, and one approximately midway up the slope. In this way, according
to the expert, a one-on-two slope can be established by using riprap or a
reinforced type of earth material (Tr. 133-134). He estimated the cost of
repairs at $2,000,000 (Tr. 136).
On cross-examination Mr. Bova indicated that the eastern edge of Canal Street
forms the eastern boundary of property owned by the Town of Waterford (Tr.
169, 173-174). The town also holds a right-of-way which extends down to the
blueline on the western bank of the canal and runs approximately 275 feet north
of the dogleg and 125 feet south of the dogleg (Tr. 176-182). He testified
that approximately 600 feet of Canal Street has been damaged due to the
instability of the western slope of the Canal (Tr. 183-184, 188; Exhibit 2).
Mr. Bova testified that there were no swales or drainage structures on Canal
Street other than the drop inlet installed at the dogleg in 2003 (Tr. 187-188).
Although he testified on direct examination that the capacity of the drop inlet
was more than sufficient to accommodate the flow of water from a 100-year storm
event, he admittedly based this opinion on a mistaken understanding of
statements contained in defendants' expert disclosure regarding a Mr. Masi (Tr.
193-194). Mr. Bova conceded in this regard that water does not flow from Route
32 to Canal Street (Tr. 194)
. Although Mr.
Bova did not know the rate of water flow directed to the drop inlet installed on
Canal Street, he opined that it was no more than the rate of water flow on
Fulton Street, although he admitted he did not know the rate of flow at that
location either (Tr. 200). He also testified that he was aware that water
runoff flows to the drop inlet from "impervious" areas including the parking lot
of the tire store (north of the dogleg) and the crest(s) of Canal Street itself
With regard to the alligator cracking on Canal Street, Mr. Bova testified that
he undertook no studies to determine whether there was a roadbed underlying the
street or the thickness of the pavement (Tr. 216-217). He also admitted that
he never inquired of the Town of Waterford when it had last paved Canal Street
prior to 2003 (Tr. 188).
Mr. Bova was unable to confirm the amount of erosion which allegedly occurred
on the western bank of the canal near the Fulton Street Bridge by reference to
his field notes. Although he testified on direct examination that the area now
measured only 16 feet from the foundation of the house to the top of the western
bank of the canal (whereas by scaling the 1902 map he testified the distance was
26 feet in 1902), Mr. Bova stated that his field notes contained no record of
this measurement (Tr. 247).
With respect to the measurements taken at the seven designated points along
the eastern blue line, Mr. Bova explained at trial that he selected seven points
common to both the 1929 and 2006 topographical maps and determined at each
point, using the respective scales, the distance between the eastern blue line
and what he contended was the toe of the slope of the western bank as
indicated on the respective maps. Mr. Bova stated that both maps depict the
toe of the western slope and not the waterline of the canal at the time the
respective maps were prepared. His testimony regarding what constitutes the toe
of the slope was somewhat inconsistent.
Although the locations of the blue lines are static and have not changed since
the 1929 map was created, the measurements Mr. Bova calculated from scaling both
the 1929 and 2006 topographical map to confirm the distance between the eastern
and western blue lines (as indicated on Exhibit 13-B) were different at five of
the seven points chosen by the witness
witness described points 1 and 7
13-B as "survey points" identified on the 1929 map. The blue line to blue line
distances scaled from the 1929 and 2006 maps were identical at these two
points. At point 2 Mr. Bova determined the distance between blue lines on the
1929 map was 126.25 feet whereas the distance between blue lines on the 2006
map at this location was 130.00 feet. Mr. Bova conceded that the discrepancy
between blue lines was sufficiently significant to render his measurements from
the eastern blue line to the toe of the western slope inconclusive as to the
extent of erosion at this location (Tr. 462, 464). At point 3, the distance
between the eastern and western blue lines using the 1929 map was 121.88 feet
and the distance measured using the 2006 map was 122.25 feet , a difference of
.37 inches which the witness described as insignificant. At point 4 the
distance between blue lines on the 1929 map was 112.50 feet whereas the distance
between blue lines on the 2006 map at this location was 113.75 feet. Although
Mr. Bova testified that this discrepancy was insignificant (Tr. 464), the
measurements from the eastern blue line to the toe of the western slope at this
location on the 1929 map as compared to the 2006 map were the same, i.e
no erosion was identified at that location. At point 5, the distance between
blue lines on the 1929 map was 106.25 feet whereas the distance between blue
lines on the 2006 map at this location was 110.00 feet. Mr. Bova conceded that
the discrepancy between blue lines was sufficiently significant to render his
measurements from the eastern blue line to the toe of the western slope at this
location inconclusive (Tr. 463). At point 6, the distance between blue lines
on the 1929 map was 106.25 feet whereas the scaled distance between the blue
lines on the 2006 map at this location was 110.00 feet. Mr. Bova conceded that
the discrepancy between the scaled blue line distances at this location was
sufficiently significant to render his measurements from the eastern blue line
to the toe of the western slope inconclusive with regard to the existence of
erosion (Tr. 463).
The witness testified that despite the aforementioned inaccuracies in the
scaled distances between the eastern and western blue lines derived from the
1929 and 2006 maps, the data still supported the conclusion that erosion had
occurred at the toe of the western slope. For example, at point 2 on Exhibit
13-B there was an admitted variation of 3.75 feet between the blue line to blue
line measurement taken from the 1929 and 2006 maps. Nevertheless, Mr. Bova
concluded that the 7.50-foot increase in the distance between the eastern blue
line and western toe of slope from 1929 (101.25 feet) to 2006 (108.75 feet)
indicates erosion at the toe of slope of the western bank of at least 3.75 feet
(Tr. 381). He testified that for those points where there was a significant
discrepancy in the distance between blue lines, determining the extent of
erosion by measuring from the eastern blue line to the western toe of the slope
would produce an inaccurate result (Tr. 402). Mr. Bova stated that for those
points where the distance between blue lines appeared generally accurate,
however, the concomitant measurements from the eastern blue line to the toe of
the western slope confirmed erosion of the western bank at those locations.
According to the witness, the existence of erosion was also confirmed by his
personal observations and, at certain of these points, through comparison of
the distance between the western blue line and the western toe of the
Stanley W. Dziarcak was claimant's next witness. Mr. Dziarcak lives at 18 Canal
Street in the Town of Waterford, a pie-shaped parcel denominated on the tax map
(Exhibit 2) as property number "4" (Tr. 472). The witness testified that he has
lived at this location since the date of his birth in 1956. His property is
located 363 feet north of the Fulton Street bridge and is bordered on the west
by Canal Street and on the east by the canal. Mr. Dziarcak testified that a
portion of his property has been eroded over time as evidenced by a comparison
of photographs taken in 1991 to photographs taken more recently (see e.g.
Exhibits 1 and 18). He testified that neither he nor his family has dumped
debris on the bank of the canal and that he has never observed surface water
collect on Canal Street or flow over the western bank of the canal. As the
result of damage allegedly occurring to his property from the effects of
erosion, Mr. Dziarcak commenced an action against the State of New York in the
On cross-examination, Mr. Dziarcak testified that his claim against the State
was discontinued at trial upon the advice of counsel (Tr. 519). This concluded
claimant's case in chief.
Defendants read portions of the examination before trial testimony of Michael
Rougia and Joseph Rougia, employees of the Town of Waterford, into the record.
Michael Rougia is an equipment operator in the Town Highway Department and has
been employed in that capacity for approximately 16 years. He testified that he
participated in the installation of the drop inlet at the low point of the
dogleg on Canal Street (Tr. 546, 548). According to the witness the purpose of
the drop inlet was to capture surface water and channel it over the side of the
western bank of the canal (Tr. 546, 547). The drop inlet according to this
witness was the only drainage structure on Canal Street (Tr. 549).
At his examination before trial Joseph Rougia testified that he too is
employed by the Town of Waterford as an equipment operator and has been so
employed for 32 years. Mr. Rougia recalled performing routine maintenance work
on Canal Street, such as brush removal and plowing since as early as 1972. He
also recalled repairing potholes and installing sanitary sewers on Canal Street
in 1975. Other than repaving the area where the sewer trench had been dug in
the roadway, Mr. Rougia recalled no other significant repaving of Canal Street.
Mr. Rougia testified that he was "on the job" when the drop inlet was installed
and that the purpose of the drop inlet was to "catch" surface water runoff (Tr.
558). He was unaware of any other drainage structures on Canal Street (Tr.
The defendants called Thomas H. McCartney to testify at trial. Mr. McCartney
is a licensed surveyor employed by the New York State Thruway Authority. He
testified that the map referred to at trial as the 1929 map was actually created
in 1925 for the purpose of establishing the blue lines on the eastern and
western banks of the canal. The map does not reflect elevations because it is a
property line map, nor does it depict the toe of the slope (Tr. 595).
According to this witness, to the extent the map reflects the edge of the water,
this is a "very indefinite line" (Tr. 594). Not only does the water level
fluctuate but the contours of the bank along the canal change so that obtaining
an accurate survey of the water's edge would require taking a "shot" about every
foot (Tr. 594).
Mr. McCartney stated that use of a scale is an imprecise method for determining
distances (Tr. 576). According to the witness "[W]e don't use scaling for
anything that needs to be accurate at all" (Tr. 576). He also testified that
the blue lines on Exhibit P are drawn with a thick pen representing
approximately three to four feet (according to scale) and to measure from the
blue line with use of a scale would be inaccurate for this reason as well (Tr.
583-584). Mr. McCartney testified regarding a survey performed in 1997 and
updated in 2006 which identified the blue lines on the canal in the area of
Canal Street. He calculated that the edge of the pavement of Canal Street is 14
feet from the blue line in the area where the drop inlet was installed (Tr.
Kenneth C. Murray, P.E. was the defendants' next witness. Mr. Murray is a
licensed Professional Engineer and has been employed as a Construction
Supervisor for the New York State Thruway Authority since 2007. Prior to his
appointment as Construction Supervisor he was an Assistant Division Canal
Engineer for the New York State Canal Corporation where he oversaw various
maintenance projects. Before joining the Canal Corporation, Mr. Murray was
employed as a Geotechnical Engineer for the New York State Department of
Transportation. The witness testified that he was informed of a "pavement
collapse" on Canal Street and performed an inspection of the site on August 21,
2003 (Tr. 640). When he arrived at the Canal Street location he was met by a
Town employee who pointed out the area of the washout, which had occurred on the
edge of the pavement (Tr. 641). The witness observed that at some point water
had actually undermined the edge of the pavement (Tr. 646). He also observed
that hay bales had been placed on the slope in addition to various debris which
had been thrown over the bank (Tr. 646). He and the unidentified town employee
discussed various options to prevent future undermining of the pavement. Mr.
Murray informed the town employee that pile driving to support the roadway
would not be an option because of the existence of shallow bedrock at that
location. Shortly thereafter, the Town installed a drop inlet which was
connected to a drainage pipe leading from the inlet down the western bank of the
canal. On September 8, 2003 the witness received notification that another
washout had occurred at Canal Street. An "asphalt kick-up gutter" and material
used to secure the pipe which led from the drop inlet had washed out along with
approximately one foot of pavement (Tr. 654-655). Thereafter concrete blocks
were placed on the western bank below the area of the washout as a means to
secure the slope below the drop inlet. Mr. Murray stated that he has received
no complaints regarding Canal Street since that time (Tr. 663).
Mr. Murray testified that wheel rutting is caused by vehicular traffic and
alligator cracking may occur when the asphalt pavement becomes old and brittle.
In his opinion, rendered with a reasonable degree of engineering certainty, the
alligator cracking on Canal Street was caused not by slope failure but by the
aging of the pavement and the effects of vehicular traffic (Tr. 674). He opined
that the pavement failure at the dogleg of Canal Street was caused by surface
water runoff which undermined the pavement at that location (Tr. 678). The
washout that occurred in August 2003 could have been prevented had the Town
installed a closed drainage system to control surface water runoff (Tr.
678-679). The washout which occurred in September, 2003, after the drop inlet
had been installed, was also due to surface water runoff which overtopped the
asphalt berm installed between the drop inlet and the top of the western bank of
the canal (Tr. 681). When he viewed the slope after the September incident, he
observed a clearly defined channel formed by water flowing over the slope (Tr.
On cross-examination Mr. Murray stated that the old Champlain Canal in this
area has not been used for navigation since 1925. It currently functions as a
reservoir for the Barge Canal between Locks 2 and 3. Although the Champlain
Canal is approximately 60 miles long, the section of the old Champlain Canal
used as a reservoir is only approximately 2½ and 3 miles in length. A
slope stability analysis was never performed on this slope because it was not
needed, according to this witness. Although the western bank of the canal was
close to a one-on-one slope (Tr. 696), it was not a steep slope because the bank
was a rock slope and not a "soil slope" (Tr. 697). Mr. Murray reiterated that
at the location of the washout, erosion was caused by "water running over the
edge of pavement and down the slope . . ." (Tr. 704).
Mr. Murray agreed that in 1885 the canal was widened, at least in part, by
cutting the rock slope (Tr. 712). While the eastern embankment was manmade,
defined by the witness as "a mound of earth built by man", the western bank was
a cut rock slope (Tr. 713-714). Thus, whereas the tow path on the eastern side
of the canal was inspected every five years, the rock slope on the western side
of the canal was not (Tr. 715).
On cross-examination Mr. Murray testified that it was not uncommon for trees to
grow initially on an angle toward the sun and then vertically (Tr. 722). He
stated that he never observed bowing of the trees caused by movement of the
overburden on the western slope.
Finally, Mr. Murray testified that when the drop inlet was first installed the
drainage pipe was stabilized by crushed stone. After the second washout
occurred in September, concrete blocks were installed to stabilize the road and
the repairs that had been made (Tr. 738).
On redirect, Mr. Murray testified that if the pavement on Canal Street failed
due to slope instability, there would be a well-defined crack in the pavement,
not the alligator cracking that exists currently (Tr. 739-740).
Dianne C. Denniston was the defendants' next witness. Ms. Denniston is a New
York State licensed Professional Engineer employed by the New York State Thruway
Authority as a Geotechnical Engineer. She has been employed in this capacity
for eight years. Prior to her employment with the New York State Thruway
Authority she was employed by the New York State Department of Transportation
for approximately eleven 11½ years. Her duties as a Geotechnical Engineer
include overseeing geotechnical issues for both the Thruway Authority and the
Canal Corporation in addition to performing design work on bridge foundations,
walls, and other structures. For canal work involving geotechnical work, she
acts as project manager as well.
Ms. Denniston testified that in preparation for her testimony in this case, she
performed several site visits, walking on Canal Street, Fulton Street, Route 32,
the western bank of the canal, the tow path on the eastern bank of the canal,
and the immediate vicinity of the dogleg on Canal Street (Tr. 747-748). She
examined the 1885 plans for the canal enlargement, various surveys of the area
and consulted with a Geologist and a Surveyor. She testified that the western
bank of the canal from Fulton Street north to the firehouse is essentially
composed of rock. She determined by reference to a geological survey map
(Exhibit X) and through consultation with a geologist that the type of rock on
the western bank of the canal is greywacky, a mixture of sandstone and hard
shale - "almost a slate" (Tr. 753, 757). Through the process of weathering over
a period of 10,000 years, a maximum of five feet of material was placed on top
of the rock slope.
According to this witness, rock slopes may be cut "almost vertical", depending
upon the type of rock (Tr. 760). "[A] one vertical on one horizontal is a
relatively flat slope for a rock cut. They can - they can go steeper than that"
(Tr. 760). The acceptable inclination for a soil slope is generally one
vertical on two horizontal, or flatter depending upon the type of soil (Tr.
760-761). According to the plans for the enlargement of the canal at this
location, the canal was going to be widened "a little bit" (Tr. 761). After the
rock slope was cut, it would have been a "bare rock face" (Tr. 770). Ms.
Denniston also observed the western bank of the canal in the area where Canal
Street meets Fulton Street, specifically the area of the brick house where Mr.
Bova testified there had been ten feet of erosion since 1902. She physically
measured the distance from the foundation of this house to the bank of the
canal. While Mr. Bova testified that he measured this distance to be sixteen
feet, Ms. Denniston testified she measured the distance to be 24 feet (Tr.
The witness testified at length regarding the photographs she took at the
western bank of the canal. She testified that photographs numbered 3, 5, 8, 9
and 20 of Exhibit G reflect the extensive filling and dumping that has occurred
at this site (Tr. 778-780). Photographs 14, 16, and 44 of Exhibit G show the
rock outcroppings on the slope, some of which are visible at the north end of
the bank near the Dziarcak property. She also observed and photographed the
sediment fan at the base of the Town's drainage pipe (Tr. 781; Exhibit G-23;
Ms. Denniston testified that she observed "overburden" on the face of the
slope, which she defined to include both organic and inorganic material (Tr.
792). Extremely high fill stores had been placed at the northern end of the
slope and she rendered the opinion that "the slope is internally stable with the
exception of the fill" (Tr. 793). She testified that the overburden or fill, as
she referred to it alternatively, was not stable and could slide down the rock
face into the canal and cause a loss of support for the firehouse parking lot at
the northern end of Canal Street (Tr. 794).
On cross-examination Ms. Denniston stated that at the time of her first
inspection of the area, which was memorialized in her report of April 17, 2006,
she performed no soil borings or test pits and had no survey maps or
topographical maps in her possession. She was, however, accompanied by a
geologist, although no reference to that fact is contained in her report (Tr.
796). Ms. Denniston testified that neither a soil boring nor a test pit could
be performed on the slope (Tr. 804, 806). She was also examined with respect
to her statement in the report that the trees on the slope do not appear to be
leaning. Upon review of a photograph depicting leaning trees on the bank
(Exhibit 12), she stated that what she meant was that the trees were not
"leaning back". She explained that if there was slope instability "[a] deep
seat itself would take the root mass and tilt the tree back" (Tr. 798). She
stated that she does not always perform soil borings and that she was able to
determine through her observation of the outcroppings of rock throughout the
entire western bank of the canal that it was a rock slope (Tr. 800). She
reiterated that the slope was internally stable with only superficial shallow
movements (Tr. 802). Ms. Denniston disagreed with Mr. Bova's conclusion that
the overburden of the western bank is composed of Rhinebeck soil which she
described as deep clay soil deposited by water. According to Ms. Denniston,
the geologic history of the area proves that such soil was swept away and
replaced by other soil (Tr. 810). On redirect, the witness testified that the
soil on this slope was shallow based upon the fact that she observed rock both
on top of the slope and throughout the face of the slope (Tr. 813).
Mr. Bova testified on rebuttal regarding the process utilized to scale the 1925
With the enactment of Section 120 of the Canal
, the State waived its immunity for
tortious conduct arising out of the use or management of its canals provided
that an individual or entity would be liable upon the same facts (Naramore v
State of New York,
285 NY 80, 84 ; Reed v State of New York
108 NY 407).
Thus, the State intended to
assume the same measure of liability in the use and management of its canals as
that "incurred by individuals or corporations engaged in similar enterprises,
and to afford to parties injured the same redress which they would have against
individuals and corporations for similar injuries" (Sipple v State of New
, 99 NY 284, 288 ). The sole inquiry therefore is "whether the
facts proved would render an individual liable if established against him"
(Reed v State of New York
, 108 NY at 411; see also Mohawk
Carpet Mills, Inc. v State of New York
, 267 App Div 707 , affd
296 NY 609 ). This the claimant failed to do.
With reference to the first cause of action for negligence, claimant failed to
establish that the defendants were negligent or that any such negligence was a
proximate cause of its damages. First, the Court is unpersuaded that either
the 1929 map or the 2006 topographical map actually depict the location of the
toe of slope of the western bank. Under the facts and testimony presented, it
is as likely the lines to which Mr. Bova measured in an effort to establish
erosion represent the waterline and not the toe of the slope of the western bank
of the canal. Neither map specifically identifies a line as representing the
toe of the slope and Mr. Bova's testimony on this issue was conclusory at
Second, the Court is also unpersuaded that the proof submitted at trial
supports the central premise advanced by Mr. Bova, and hence the claimant, that
erosion at the toe of the slope of the western bank between 1929 and 2006 caused
a cascading effect by which the overburden, deprived of support, slid down the
western bank of the canal. It is alleged that the consequent loss of support to
Canal Street resulted in damage to the roadway which continues and will continue
into the future, if not abated.
To demonstrate the occurrence of erosion at the toe of the slope claimant's
expert measured like distances from defined points on the 1929 map and the 2006
topographical map. Mr. Bova measured the distances between the eastern blue
line and the toe of the slope of the western bank at each of the designated
points using the scales for the 1929 and 2006 maps. Any enlargement, over time,
of the distance between the eastern blue line and the toe of the slope of the
western bank as shown on the 1929 and 2006 maps was said to be evidence of
erosion along the western bank of the canal.
Using the same scaling process, Mr. Bova also measured the distance between the
eastern and western blue lines which he described as static and unchanging over
time. According to claimant's expert the scaled measurements between the
eastern and western blue lines on the maps should be identical. As was brought
out on cross-examination, however, Mr. Bova's measurements of the distance
between the static, unchanging eastern and western blue lines were admittedly
inaccurate for four of the seven points selected for comparison. Why these
distances, which remained constant between 1929 and 2006, were not identical was
never explained at trial.
The mere fact that the blue line to blue line measurements differed when they
should have been the same calls into question the entire process by which
claimant's expert purported to determine the extent of erosion along the western
bank of the canal, i.e., through comparison of the distances between the
eastern blue line and the toe of the slope of the western bank as scaled from
the 1929 and 2006 maps. Presumably, Mr. Bova used the same data and processes
to produce the inaccurate blue line to blue line measurements as he did to
produce the eastern blue line to western toe of slope measurements. It must be
remembered that these distances were originally identified very precisely by Mr.
Bova, in several instances to the hundredth of an inch using, in the case of the
1929 map, a scale in which one inch equals 100 feet. The lack of precision in
evidence the expert originally presented in such precise terms, when combined
with the unexplained nature of the admitted inaccuracies in the blue line to
blue line measurements, renders the proof offered by the claimant in this regard
both unreliable and unconvincing.
Defendant's expert surveyor, Mr. McCartney, testified persuasively that using
the scale on a map, as the claimant's expert did here, is an imprecise method
for determining distance. While the scaling technique utilized by Mr. Bova was
arguably necessary in measuring distances relative to the 1929 survey map, it is
unclear why no field measurements were taken in preparing the 2006 topographical
map. Having decided to map the area in question, the recording of distance
measurements as part of the mapping process would seem a simple and utilitarian
step. However, instead of recording actual measurements in the field, the
topographical map was prepared by Chazen Engineering and submitted to Mr. Bova
who then added "[t]he annotations with numbering and dimensioning" (Tr. 107).
Reliance upon the scaling technique to determine the distance between points on
the 2006 topographical map is inherently less reliable than distances
determined in the field. Why the relevant measurements were not recorded as
part of preparing the 2006 map was also not explained at trial.
In addition to the above, although Mr. Bova explained that movement of water
was a catalyst for the erosion occurring at the toe of the western slope, he
never measured the speed of the water in the canal. Nor can claimant's
expert's conclusion that erosion was occurring on the western bank be supported
by reference to the present distance from the house foundation near Fulton
Street to the top of the western bank as compared to the distance scaled from
the 1902 map. While Mr. Bova testified that there had been ten feet of erosion
at this location, he failed to record the present distance from the foundation
to the bank in his field notes. Ms. Denniston, on the other hand, testified
that the distance is 24 feet, which the Court finds more compatible with the
distance reflected in the photograph received as defendants' Exhibit G-1.
Furthermore, the expert's contention that the one-on-one slope of the western
bank was too steep given the composition of the overburden present was
unsupported by testimony regarding the standards in effect in 1885, the time the
canal was widened. Ms. Denniston, a Geotechnologist, testified in this regard
that the slope was comprised of rock and that after it was cut for the canal
enlargement, it was a "bare rock face" (Tr. 770). It was her opinion that a
rock slope can be much steeper than the one-on-one slope found on the western
bank of the canal. In any event, the Court finds that claimant failed to
establish, in the absence of credible proof of erosion at the toe of the slope,
that the one-on-one slope configuration was a proximate cause of any damages
sustained by the claimant.
The Court credits defendants' experts' explanation for how and why the pavement
on Canal Street was washed out. Ms. Denniston explained that extremely large
amounts of fill had been added to the northern section of the western bank. It
was the absence of drainage structures on Canal Street combined with the natural
topography of the area which caused surface water to flow to the low point of
Canal Street and overflow the bank of the canal, according to both Ms. Denniston
and Mr. Murray. In fact, Mr. Murray testified that following the September 2003
washout of Canal Street, he observed a clearly defined channel created from
water flowing over the slope. Although the September 2003 washout of Canal
Street occurred after the drop inlet on Canal Street was installed, claimant's
expert's opinion that the drop inlet was more than sufficient to withstand a
100-year storm event was undermined on cross-examination by reference to the
fact that in reaching this conclusion he relied on defendants' expert's report
regarding the rate of water flow onto Route 32, not Canal Street where the drop
inlet was located. Additionally it appears that the drainage pipe to the drop
inlet which was installed by the claimant was improperly supported, a fact which
has since been remedied by the installation of cement blocks. While, Mr. Bova
testified that the presence of alligator cracking on the surface of Canal Street
indicates a loss of lateral support for the roadway, his opinion is less than
persuasive on this point in that he failed to determine the composition of the
roadbed underlying Canal Street, the thickness of the pavement or the date Canal
Street had last been paved prior to 2003.
Based on the foregoing the Court finds claimant failed to establish by a
preponderance of the credible evidence that the defendants were negligent in
the ownership or operation of the canal or that any such negligence was a
proximate cause of its damages.
As the result of this determination, claimant’s remaining causes of
action must fail. Claimant's second cause of action for loss of lateral support
is based on the common-law doctrine that generally requires an adjacent
landowner to preserve the lateral support of the adjoining property (New York
Steam Co. v Foundation Co.
, 195 NY 43 ; Radcliff’s
Ex’rs v Mayor of City of Brooklyn
, 4 NY 195
As set forth above, claimant failed
to establish that the loss of lateral support to Canal Street was proximately
caused by defendants’ negligence in the ownership or operation of the
Claimants third and fourth causes of action for nuisance and trespass must fail
for the same reason. A claim for nuisance requires an interference with the
right to use and enjoy property (Copart Indus. v Consolidated Edison Co. of
N.Y., 41 NY2d 564 ; Chenango, Inc. v County of Chenango, 256
AD2d 793 ). Likewise, a trespass is defined as "the invasion of a
person's interest in the exclusive possession of land" (Copart Indus. v
Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 ; see
also Congregation B'nai Jehuda v Hiyee Realty Corp,, 35 AD3d 311
). Claimant failed to establish any act by the defendants which
interfered with the right to use and enjoy its property or otherwise constituted
an intrusion upon its interest in exclusive possession. Lastly,
claimant’s fifth cause of action for breach of the public trust must fail
as the claimant failed to establish that the defendants caused an interference
with any public right (Matter of Town of Coeymans v City of Albany, 284
AD2d 830 ; Town of Riverhead v Long Is. Light. Co., 258 AD2d 643
Based on the foregoing, the Court concludes that the claimant failed to prove
its case by a preponderance of the credible evidence. Accordingly, the claim is
Let judgment be entered accordingly.