New York State Court of Claims

New York State Court of Claims
BROWN v. THE STATE OF NEW YORK, # 2008-031-522, Claim No. 109948


Defendant's negligent maintenance of pipes was proximate cause of damage to Claimants' properties. Defendant 100% liable.

Case information

UID: 2008-031-522
Claimant(s): KATE BROWN
Claimant short name: BROWN
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 109948
Motion number(s):
Cross-motion number(s):
Claimant's attorney: DADD AND NELSON, PLLC
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 12, 2009
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case) 2008-031-523, 2008-031-524, 2008-031-525


In March 2004, Claimants Ernestine V. Austin, Mary Elizabeth Kibler, Kate Brown and Maurietta Fountain were property owners on the west side of Exchange Street in the Town of Attica, New York. Their properties were bounded on the west by Tonawanda Creek (Exhibit D). In early March 2004, land collapsed along a fault line on the west side of Exchange Street, causing damage to their properties. Claimants maintain that negligent operations at Attica Correctional Facility ("Attica") caused the land to collapse. They each filed a claim in October 2004 against the State of New York for damages on the grounds of negligence, nuisance, unlawful trespass and de facto taking of Claimants' properties. These claims were joined for trial. I held a trial on the issue of liability only on July 7 and 8, 2008. Counsel then submitted post-trial memoranda.


Claimant Ernestine V. Austin owned a single family residence at 636 Exchange Street, consisting of improvements and approximately .40 acres of land. She claims to have been damaged in the amount of $100,000.00 (Claim No. 109950; Exhibit 25).

Claimant Mary Elizabeth Kibler (née Anderson) owned a single family residence at 632 Exchange Street, consisting of improvements and approximately .615 acres of land. She claims to have been damaged in the amount of $150,000.00 (Claim No. 109949; Exhibit 31).

Claimant Kate Brown owned a single family residence at 626 Exchange Street, consisting of improvements and approximately 1.26 acres of land. She claims to have been damaged in the amount of $75,000.00 (Claim No. 109948; Exhibit 27).

Claimant Maurietta Fountain owns a single family residence at 640 Exchange Street, consisting of improvements and approximately 1.41 acres of land. She claims to have been damaged in the amount of $150,000.00 (Claim No. 109994; Exhibit 29).


Tonawanda Creek is a Class A tributary that runs generally north to south in Wyoming County through the Village of Attica (Exhibit 71). The creek has many bends and is referred to as "sinuous" at times in the trial testimony. On March 1, 2004, land to the east of the creek, at the northern end of Attica, broke at a fault line that ran south from a drainage pipe, following approximately the curve of the creek, ending at another drainage pipe at the south end, just above a sink hole (Exhibit 1, Aerial Photograph 4 ["AR-4"]). The break at the fault line created a ledge, or escarpment, that varied in depth from 2 feet to 10 feet (Exhibit 1, AR-4). The soil immediately underneath Attica and Exchange Street is called "Varysburg" and is formed over "silty and clayey bottom sediments" (Exhibit B). Varysburg, at one time, likely, was found west of Exchange Street up to the creek bed. However, the silty and clayey bottom sediments, underneath the Varysburg layer, are Caneadea - the soil found at the fault line (Exhibit B; Exhibit 2, Figure 5). Both soils are described as "unstable" in naturally occurring slopes.

According to the New York State Geological Survey Landslide Inventory Map, this area of Tonawanda Creek experiences "slumping and landsliding" incidents that are too numerous to individually document. In particular, the area is known for earth slumps, both natural and man-made, that are primarily caused by a "rotational" mechanism (Exhibit G). The topography in the area is wet and unstable. Sloughing and erosion are naturally occurring problems in such areas (Exhibit B). In fact, the creek path has changed direction five times between 1930 and 2002 (Exhibit 2, Figure 3; Exhibit D). The creek is approximately 240 feet from Exchange Street at the most northern point of the escarpment (Exhibit D). (I calculated the linear feet using the map's scale.) I note that I cannot make the same calculation at the southern end of the escarpment because the creek had flowed off the map by that point.


Claimant Kibler first noticed a problem in her basement at 632 Exchange Street in December 2001 when the north basement wall developed a vertical crack starting from the bottom of her basement window and reaching to about two inches from her basement floor. At its widest point between December 2001 and October 2003, she was able to fit her two fingers in, side by side. In October 2003, she had that part of her northern basement wall and all of her western basement wall "knocked out and rebuilt," which appeared to resolve any basement issues for a few months. Then, on January 17, 2004, she observed that her basement floor appeared to be separating from her newly repaired basement wall. As she monitored the situation, cracks appeared in the walls and were widening as time passed. On February 29, 2004, she and her family returned home from an outing and noticed that the septic system was not working. She observed that the septic system had "pulled apart." Her husband was able to fix it temporarily because it had "pulled apart in their basement where he was able to easily access it."

The next morning, Monday, March 1, 2004, Claimant Kibler noticed a crack in her driveway, in front of her garage, as she was leaving for work. She returned home at 4:00 p.m. that day and went to the basement to start laundry and noticed that "stones were pouring in behind the washer and dryer from the wall." This was at approximately 4:30 p.m. Claimant Kibler stated she became upset and told her husband about it, but he was not concerned. They ordered pizza around 7:00 p.m. and, when she left the house to pick it up, she noticed a "lot of commotion" at her neighbor's house to the north, 626 Exchange Street - the Brown residence, and that their windows were shattering. When she picked up the pizza, the chief of police was there and she explained that the houses were sliding off their foundations "more or less." She was upset. The chief of police promised to go and look at her house.

The police chief arrived with two men from the fire department. When she took them into her basement, more stones were falling in and now whole cement blocks were falling out of her basement wall. She packed up her family and their cat and left the house at 9:00 p.m. to sleep overnight at her in-laws' house.

Early the next morning, she rallied her family and friends and they moved as many personal items out of her house as possible in the two hour time frame she was given by the authorities. Over that two hour period, she watched her garage sink, more blocks fall out of her basement wall and her basement floor sink even further.

Claimant Kibler identified Exhibits 40 through 65, which were photographs of the four properties taken within several days of the land collapse. Her house is depicted in Exhibit 40. The black/grey horizontal line to the right, just above the land, is actually the shed that used to stand at ground level with the house. Exhibit 50 is another view of her shed, but from her neighbor's to the north, Mrs. Brown's, property. Exhibit 51 is the northwest corner of her house that essentially fell off. Exhibit 51 is a view from the south side of her house and you can clearly observe where the back basement wall and part of the basement's side wall are gone. Her garage separated from the driveway and dropped, as well (Exhibits 53, 55).

Claimant Kibler knew her neighbor Kate Brown rented her property to Mr. Payne. She explained how the Brown house was damaged using Exhibits 45, 46, 47, 48, 49, 50, 52, 58, 59, 60, 61, 62, 63 and 64. It appears that the Brown property was hardest hit by the collapse, as the whole house seems to sit on a slant and the garage is totally destroyed.

Claimant Fountain witnessed the land collapse as well. She owned the residence the farthest south on Exchange Street and was the least affected.

Her property had a gradual slope in the back towards Tonawanda Creek. She had a drainage pipe at the end of her property that ran parallel to Exchange Street. She observed that there was always a lot of water coming out of the pipe and, many times, it "smelled like a sewer." She believed it came from Attica. The flow from the pipe was strongest after a heavy rain. She noticed "bubbles" and sometimes particles of food in the outfall. The pipe sat near the top of the land. Where it ended and the water flowed, there was an approximate 15 foot drop to the rocks below, creating a waterfall effect.

In the summer of 2003, she noticed a change in her land. She had lots of water around her back yard - her grass was "lush" and green and her vegetable garden was very healthy. This was unusual because, in the past, she had to water her garden quite a bit. By the Fall of 2003, the water level had become so high that she placed plywood boards on her lawn so she and her family could walk in their backyard without slipping in the mud. Also about this time, her neighbors at 636 Exchange Street (Austin) were telling her that they thought their land was moving. She did not believe it at first but, when she went to see their property, she actually saw that the land was indeed moving. At the edge of her own property, she had evidence that something was happening because a pile of wood that was stacked there since she moved in in 1997, was falling down.

On the evening of February 29, 2004, her neighbor, Mrs. Kibler, came over to her house. She was very upset and began telling her about their basement falling in. Claimant Fountain walked over to see what was happening. Claimant Fountain noticed an eight inch drop in the front of the garage. She took a flashlight and, with two of the firemen who were at the Kiblers' at the time, followed the crack over the property, ending up at the drainage pipe behind her house. Claimant Fountain noted it was not difficult to follow the crack because there was a very obvious break or line through the snow.

Also that evening, Claimant Fountain observed what was happening at Mrs. Brown's home. She knew the tenant at that time to be John Payne. Mr. Payne was supposed to purchase the residence the next day, March 1, 2004. Claimant Fountain tried to help Mr. Payne remove his personal belongings but the house was falling at a slant down the slope toward the creek and it was too scary to walk inside. She stayed at the edge of the porch and handed items out. The porch was the first part of the house to fall.

The next morning, Mr. Payne arrived with a backhoe to "lift" the home so he could get inside and retrieve more of his belongings. Meanwhile, Claimant Brown arrived and she and Claimant Fountain watched the Brown house fall into the gully created by the landslide.

The landslide exposed a section of another pipe that ran from Attica between Claimant Kibler's and Claimant Austin's houses. Claimant Fountain observed that it was "broken with water swishing" just to the left of the Kiblers' garage. She also observed that is was "big" with a "whole lot of water." As the Kibler garage dropped, the hole she observed in the pipe became obscured.

Claimant Fountain also noticed streams of water "pouring out" of the ground where the land had broken off. Prior to the landslide, all the back yards affected sloped towards Tonawanda Creek. Now, Claimant Fountain says, it looks like it's "stepped." In addition, the drainage pipe at the end of her property looked like it dropped down, closer to the water. One other Exchange Street resident testified on Claimants' direct case, Attica's former Superintendent, James Conway.

Mr. Conway was the Superintendent at Attica at the time of the occurrence. In August 2004, he lived at 611 Exchange Street, adjacent to the facility and across the street from Claimants. He testified that Attica and its original sewer system were constructed between 1929 and 1932. In 1963, the sewer system changed when a storm water system was constructed. The original line went from Attica, under Exchange Street, between the Kibler and Austin houses. The next time the system was worked on was in 2003.

Superintendent Conway experienced problems with water at his residence. In the Spring of 2004, water collected on his front yard - enough to create a pond. After that episode, the storm water line under Exchange Street was replaced. Superintendent Conway described various water problems inside and outside the facilities. Some, such as pipes clogged with clothing and shoes, were caused by inmates. Some were the result of equipment malfunctions, like the water tank breakdown in 2000. During Superintendent Conway's tenure, there were complaints about accidental sewage discharges, odor and flooding. When the latest work began on the sewer system, a cross-connection between the sanitary and storm water systems was uncovered and rectified. Now, all sanitary sewage moves north of Attica to the Village of Attica treatment plant.

Soon after the landslide, the New York State Emergency Management Office (SEMO) sought the opinion of the New York State Department of Transportation's ("DOT") Geotechnical Engineering Bureau as to why this event occurred (Exhibit 36). Matthew Barendse, a Civil Engineer I, researched the area and gave a preliminary geotechnical assessment of why the land slid (Exhibits 2, 36). In sum, Mr. Barendse had difficulty discerning a distinct trigger for the landslide but he believed that "groundwater seepage forces play(ed) a large role here. We would speculate that groundwater, either directly or indirectly, was a major factor in this slide" (Exhibit 2). Mr. Barendse did not identify the source(s) of the groundwater (Exhibit 36, p. 26). He did provide an easily understood explanation of groundwater seepage forces, which I found helpful: "water always seeks its own level, so if you have a high point on the water table moving to a low point, it's going to flow in that direction, from high to low, and creates a seepage force" (Exhibit 36, p. 25). Mr. Barendse provided DOT with Exhibit 2 by reviewing available documentation. He did not visit the site.

Mr. Kurt Arnold is an Associate Sanitary Engineer for the New York State Office of General Services ("OGS"). He possess a civil engineering degree and has been a licensed professional engineer since 2000. Prior to the landslide, Mr. Arnold had been assigned to Attica's sanitary sewer rehabilitation project. Mr. Arnold joined the project during its late design stages as it was going out to bid. His opinion was that the plan was for a "significant" improvement in Attica's sanitary sewer system. Actual construction did not begin until 2003. The storm water system was not affected by this project.

In March 2004, DOCS asked him to investigate the landslide. Mr. Arnold visited the site and compiled the photographs and notes contained in Exhibit 1. He testified that he had intended to prepare a written report but discontinued the project when DOCS received the DOT report (Exhibit 2).(1)

Mr. Arnold sketched his best estimate of the fault lines on the aerial photos in Exhibit 1. AR-5 shows the original land contours with the fault line and abandoned storm sewer line running between the Kibler and Austin homes. AR-6 shows a magnified version of the ground with the abandoned storm sewer and the existing storm sewer. Pictures of the damage to land and improvements were attached to Exhibit 1 as Appendix B. Photograph 4, taken on March 9, 2004, shows separated pipe joints in the abandoned storm sewer, west of the fault line, close to Tonawanda Creek. Mr. Arnold observed water flowing through it.

The abandoned storm sewer line was capped off, or bulkheaded, in 1963 (Exhibit 1, AR-7). Mr. Arnold contracted with a company to take a video of the inside of this broken, 36 inch pipe, using a robotic camera. The video was played for me and showed silt and mud in the pipe. In fact, the camera had difficulty moving through the pipe because of the silt and mud in it. Mr. Arnold also arranged to have the new sanitary sewer pipe inspected by the robotic camera. That pipe also had a separated pipe joint and Attica initiated an "in house" project to address the situation.(2)

DOCS commissioned an "Inflow & Infiltration" Study ("I & I") by OGS in 2001. An I & I study tests the integrity of a sanitary sewer system by identifying where groundwater, which is considered clean or "pure," seeps into the sanitary system. This can happen through separated joints in sanitary sewer pipes, loose and leaky covers and manholes. The situation is undesirable because it minimizes the effectiveness of the sanitary sewage treatment process. Based on the 2001 I & I findings, it was recommended that Attica rehabilitate its sanitary sewer system (Exhibit 72).

The construction of a new sanitary sewer system began in June 2003. It became apparent during the construction phase that there were "active sanitary sewer connections to the storm system" at Attica that needed to be identified (Exhibits 14, 68). The New York State Department of Environmental Conservation ("DEC") began to field inquiries from residents about odors emanating from the storm sewer outfall at Tonawanda Creek. As a result, OGS initiated an investigation of the storm sewer system that uncovered various deficiencies, such as a cross-connection between the sanitary systems in the dining hall/kitchen to a storm sewer manhole, a major pipe blockage and some broken and collapsed pipes (Exhibit 67). OGS also investigated the existing sanitary sewer system (Exhibit 72).

In January 2005, OGS contracted with an engineering firm to evaluate the system in accordance with the "Ten States Standards"; identify any deviations or deficiencies with the contract documents; and identify the cause of the "numerous blockages within the system" (Exhibit 72, p. 5). OGS had the findings of the 2001 I & I study which uncovered areas within the facility with "significant infiltration issues" and found that the majority of the sanitary sewers showed signs of "fracture, structural deterioration and/or failure. Investigations revealed extensive lengths of cracked pipe, root infiltration, breaks, bad joints and numerous obstructions throughout the facility's system" (Exhibit 72, pp. 5 - 6). The replacement of the sanitary sewer system appears to have "substantially reduced" groundwater infiltration, however, sanitary sewage blockages remained a problem (Exhibit 72, p.1).

The engineers located a direct connection between the sanitary and storm sewers at the mess hall. A six inch pipe carried sanitary sewage from both the mess hall bathroom and the kitchen to manhole 18 (Exhibit 22). From manhole 18, the pipe widened to eight inches and traveled from manholes 16 to 11 to 1, where it left Attica and traversed Exchange Street, eventually arriving at Tonawanda Creek (Exhibit 23). The sanitary sewer line that carried this sewage and storm water is depicted on Exhibit 70. Approximately eighty percent of the storm water discharged by Attica used this pipe that runs parallel to the Fountain property and then takes a 90 degree turn north, running parallel to Exchange Street to the outfall. It was in the later portion of the pipe that Mr. Arnold observed the sinkhole after the landslide.

Sinkholes may be caused by many things, for example, a defective manhole or a pipe with separated joints. Mr. Arnold could not determine the exact cause(s) of this sinkhole. The camera they sent down the pipe to record the pipe's status did not roll down far enough for a visual inspection to be made.

Claimants offered the testimony of Ernest R. Hanna, P. E., from GZA GeoEnvironmental, Inc. ("GZA"), of New York, to explain how Attica's storm sewer system caused the landslide that damaged Claimants' properties. Mr. Hanna received his professional engineering license in 1989. He managed one of the 20 offices of GZA from 1995 until the time of this trial. GZA's work was primarily geotechnical and environmental engineering and consulting. He has worked with issues regarding soils and their strength and stability for construction, phase I and II studies and remediation. He has worked on landfills, roads, bridges and sewer systems. Slope stability issues are often addressed in all of those contexts.

Mr. Hanna personally visited the landslide site three times and arranged for test borings by Earth Dimensions, Inc. in 2007. The results of the test borings are contained in a boring log and summarized by Mr. Hanna in Exhibit 33A. Mr. Hanna concluded that the soil was not loosely placed fill, but was consistent with "natural, indigenous soils below a depth of 4-feet" (Exhibit 33A). He also concluded that the water table depth was approximately six feet (Exhibit 33A). His next step was to perform a slope stability analysis.

The slope stability analysis consists of a computer calculation comparing "restraining forces," i.e. the soil at the bottom of a slope, with the "driving forces," i.e. the soil at the top of the slope plus the weight of the soil itself. Each type of soil is assigned a numerical value. These values are based on studies of upstate New York soils and their properties (Exhibit 33, p. 6). Mr. Hanna's report indicates that this slope's stability was at or above 1.5, "a generally accepted suitable factor of safety for slope stability" (Exhibit 33, p. 6). At trial, he testified the figure was closer to 2. Mr. Hanna then recalculated the slope stability by adding the water table as a variable. When he did that, the slope stability moved to near 1, meaning the slope was only marginally stable.

Mr. Hanna opined that the landslide occurred when the area experienced a "deep rotational failure." The rotational movement started at the top of the escarpment when the soil pushed down against the previously restrained soil at the toe of the slope. This caused the soil at the top to fall down, thus producing the ledge, or escarpment; pushing the soil at the slope toe up, i.e. elevating it to a higher point. Mr. Hanna agrees with DOT that water seepage forces below the ground surface were the cause of the landslide. However, Mr. Hanna thought that wet Spring conditions were not the cause, as DOT suggested, because that type of seepage would have "manifested in more shallow, sloughing disturbances as the frozen ground thaws" (Exhibit 33, p.6). He believed that the landslide was caused by a problem deeper within the slope, specifically, that the "presence of the two storm sewer pipelines . . . were substantial factors" in the failure of the slope.

In his opinion, the abandoned storm sewer line that cut down the middle of the slope, introduced more water to an already high water table. The sediment he saw on the video of the pipe supported his conclusion that the soils in that area were loosening up, thus minimizing the slope's stability. The active storm sewer at the other end also contributed by eroding the land around the point of discharge, the toe of the slope, decreasing the ability of this soil to restrain or keep the soil above it in place. Mr. Hanna testified that Attica should have either decreased the amount of water being discharged or "armored" the area.

Michael Mann, principal in McMahon & Mann Consulting Engineers, P.C., testified for the State. Mr. Mann received his master's degree in civil engineering in 1979 from the State University of New York at Buffalo and became a Professional Engineer in 1983. He worked in Pennsylvania from 1979 to 1987 in the field, then relocated to Buffalo in 1987 where he worked for GZA from 1987 to 1993. McMahon & Mann started in 1993. They employ 14 engineers, 6 of those engineers have their professional engineering licenses. Mr. Mann's engineering work since 1987 has been primarily in western New York in the areas of civil engineering and geotechnical engineering. McMahon & Mann are on retainer with OGS, however, Mr. Mann's work on this case is separate and distinct from that work.

Mr. Mann worked at Attica in 2005 on the sanitary sewer system for OGS. He was involved with the "shoring" required to keep the land around the sewer pipes from caving in on the workers. He stated he found the soil around Attica to be "problematic" and primarily silt and sand, with a high water table.

Exhibit F depicts the three main layers of soil encountered above and below the abandoned sewer pipe. The top layer is silty sand (10 feet), the pipe runs just below that layer and on top of stiff clay. The soil strength is represented by the number of strikes it takes for a hammer to drive a "sampler" 12 inches into the ground to take a boring sample. At the test boring closest to the creek, Bore Hole 1-07, the hammer starts at 9 strikes per foot just under the pipe and moves to only 5 strikes per foot at the bottom of the clay layer. From then on, the hammer travels through the soft to very soft clay layer, requiring little if any force. Mr. Mann described the texture of this soil as that of peanut butter. I note that the soils closest to Attica represented by Bore Hole 1-05 appear stronger, based on the number of hammer strikes it took to acquire that sample.

Mr. Mann began his investigation of the landslide in the Fall of 2007. Prior to this investigation, he had worked at two other slope failures on the creek, one in Clarence, Erie County and the other in Lockport, Niagara County. He stated the soils in those locations were similar to the soils at the Attica site. He opined that the natural weakness of the soil around the creek combined with the movement of the water in the creek creates the opportunity for these types of land failures.

He testified that these landslides typically occur at bends in the creek. The water erodes the soil at the outside of the bend; the water deposits soil at the inside of the bend. The erosion on the outside of the bend removes soil from the toe of the slope, decreasing the slope toe's ability to hold the slope in place ("restraining force").

Exhibit D is a combination of topographical maps of the area from 1930, when Attica was under construction, and 2005. The creek in 1930, represented in red on the exhibit, possessed a softer bend and the slope appears gentler and more gradual. By 2005, the creek takes a sharp turn west and the slope is "stepped" and disjointed. Mr. Mann opined that soil "slumps" in the area since 1930 caused the creek to change course by soil being pushed down and blocking the original course until the creek moved to its location in 2005.

Mr. Mann concluded that three naturally occurring conditions caused the slope failure. He opined that the sand deposit over the very soft clay was a very bad combination that "overburdened" or destabilized the slope because the soft clay was not strong enough to hold up the upper layer of soil. He also believed that the creek's erosion action at the toe of the slope further destabilized the slope by weakening the soil at the toe. Lastly, he opined that the high water table caused the sandy soil at the top of the slope to fill up with water, making it too heavy to be supported by the soft clay underneath.

I found both experts credible.(3) They agreed on the primary mechanism for the slope failure that produced the escarpment; a rotational movement involving a weakened slope toe and a heavy overburden. They presented a reasonable disagreement as to why the restraining forces at the toe of the slope weakened to the point of failure. Mr. Hanna posited that the two sewer lines and the extra water these pipes introduced into the soils because they were broken and disjointed, increased the weight of the soil at the top of the slope, overpowering the slope toe, resulting in the failure. He dismissed the idea that the creek played a role in weakening the toe slope because it was too far away from the fault line.

Mr. Mann posited that the erosion action at the creek bend weakened the slope toe. The soil at the top of the slope was naturally heavy due to the high water table. This added weight, in addition to the soil's propensity to retain groundwater, overwhelmed the slope toe, causing the failure. Mr. Mann admitted on cross-examination that the two sewer pipes could have been a contributing factor.

I note that neither expert adopted the theory that the Spring thaw caused the failure.

I accept the fact that the creek's erosion action caused the landslides or slumps described in Exhibit G, the Landslide Inventory Map. However, I do not believe that the creek was close enough to this particular landslide to be the cause of it. The topographical maps in evidence show the many "steps" or slumps closest to the creek bed. Elevation changes are more gradual as the slope approaches Exchange Street. The creek curves closest to the escarpment at the northern point. The escarpment and the creek move southwest from there, the escarpment gradually and the creek sharply. Approximately one-third of the way down the escarpment, the fault line and the creek turn. This spot coincides with the site of the abandoned sewer line. The fault line ends at the active sewer line (Exhibit 1, AR-5).

The 1930 and 2005 Topographic Maps (Exhibit D) show the abandoned pipe discharging into the 1930 creek bed. From 1930 to 2005, the creek changes course, moving west, at the point of the outfall from this pipe. It appears that the creek course moved even further west after the existing sewer line was built in 1963. The creek's present course has it flowing right off Exhibit D, above the outfall from the current active sewer line. I find that the construction and maintenance of these two sewer lines caused the March 1, 2004 landslide. Now, the issue becomes whether or not Defendant can be held liable for the damage to Claimants' properties.

Claimants sued on four legal theories; nuisance, trespass, defacto appropriation and basic premises liability.

With regard to Claimants' assertion that they have an action based on trespass and private nuisance, I find the case of Hernigle v State of New York (Ct Cl, December 20, 2005 [Claim No. 105457], Fitzpatrick, J., UID No. 2005-018-496) instructive:

"An action for trespass requires a showing of intentional or reckless entering upon another's land by a person, thing, or substance resulting in actual or constructive possession (Brown v Arcady Realty Corp. 1 AD3d 753; Farrell v Stram 228 AD2d 880). The resulting damage need not be intended; however, the invasion or intrusion must be intentional or an immediate and inevitable consequence of Defendant's conduct which is wilful or so negligent as to be the equivalent of wilful (Phillips v Sun Oil Co., 307 NY 328, 331)."

Judge Fitzpatrick found that, despite the State's conduct that caused a significant amount of water to invade Claimant Hernigle's property, there was no evidence that the State intentionally or willfully diverted surface waters from the State constructed drainage system onto the property. Nor did Judge Fitzpatrick find the requisite intent for a nuisance action based upon those facts.

"The basis for a nuisance action is interference with the use and enjoyment of land (Copart Inds. v Consolidated Edison Co. of N.Y., 41 NY2d 564). The interference can be either intentional and unreasonable or negligent and reckless, but it must be a substantial interference (Christenson v Gutman, 249 AD2d 805, 807; Copart Inds. 41 NY2d at 569)." (Hernigle v State of New York, supra).

The interference is intentional when defendant acts with the purpose of causing the interference and knows the result of that conduct. Judge Fitzpatrick did not find that the State intended its drainage system to interfere with the use and enjoyment of Claimant Hernigle's land.

Defendant did not willfully or intentionally intrude on Claimants' properties or willfully interfere with Claimants' enjoyment of their properties. Therefore, Claimants' claims based on trespass and nuisance are dismissed (cf. Zutt v State of New York, Ct Cl, July 27, 2006 [Claim No. 109154], Scuccimarra, J., UID No. 2006-030-017).

I must also dismiss Claimants' claims for defacto appropriation. A claim for defacto appropriation accrues when the condemnor (Defendant) physically enters the land (Carr v Town of Fleming, 122 AD2d 540, 541). Here, that would be 1930 for Claimants Kibler and/or Brown and approximately 1963 for Claimant Fountain, the respective years these sewer lines were constructed. The statue of limitations on a defacto appropriation is three years (CPLR 214; Court of Claims Act 10). Claimants' causes of action based on defacto appropriation are time barred.

However, it is well established that "[t]he State - just as any other party . . . is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (Flaherty v State of New York, 296 NY 342, 346), the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506).

While the facts in this matter do not fit neatly into the normal "premises liability" theory of negligence, New York courts have consistently held that "an owner of property may not collect surface water into channels and discharge it onto another's property" (DiRienzo v State of New York, 187 AD2d 879, 880; see also Buffalo Sewer Authority v Town of Cheektowaga, 20 NY2d 47; Kossoff v Rathgeb-Walsh, Inc., 3 NY2d 583; Musumeci v State of New York, 43 AD2d 288).

Clearly, Defendant had a duty to maintain and repair its sewer and water pipes (Pet Products, Inc. v City of Yonkers, 290 AD2d 546; Biernacki v Village of Ravena, 245 AD2d 656). If Defendant had actual or constructive notice that the pipes were malfunctioning or had deteriorated, and failed to make reasonable efforts to inspect and repair the pipes, it can be liable for the resulting damages (DeWitt Properties, Inc. v City of New York, 44 NY2d 417).

I find that Defendant did have the requisite notice. Defendant had actual notice based on the results of the I & I Study (Exhibit 72, pp. 5 - 6; Exhibit 66); DEC's intervention after neighbors complained of odors emanating from the pipe outfall(s), as well as the "pool" that developed in Mr. Conway's front yard that necessitated a pipe repair prior to the landslide. Also, the fact that Defendant was already in the process of totally revamping Attica's sewer system is evidence that Defendant knew, or should have known, that the dangerous condition existed. Defendant's failure to correct these problems was the proximate cause of the landslide that directly damaged Claimants' properties. I find Defendant 100% liable.

All motions upon which decision was reserved at the time of trial are hereby denied.

A trial on the issue of damages will be held as soon as practicable.


January 12, 2009

Rochester, New York


Judge of the Court of Claims

1. Apparently, DOCS received the DOT report unsolicited. DOCS declined to continue funding Mr. Arnold's OGS investigation based upon receipt of Exhibit 2.

2. Apparently, it had yet to be completed at the time of trial because Attica still needed to acquire easements to accomplish the work.

3. At the close of Claimants' case, Defendant moved to dismiss because Mr. Hanna failed to express his opinion to a reasonable degree of engineering certainty. I note that experts need not express their opinions using "magical words" if the totality of their opinion testimony indicates that they intended to express their opinion with a sufficient degree of certainty (Matott v Ward, 48 NY2d 455, 463; Weisenthal v N.Y. State Bd. of Regents, 249 AD2d 712, 714 - 15). I find that Mr. Hanna testified with a sufficient degree of certainty, therefore, Defendant's motion to dismiss is denied.