New York State Court of Claims

New York State Court of Claims
KRESS v. THE STATE OF NEW YORK, # 2008-044-010, Claim No. 108004


Claimants own a house (the House) located at 745 Mirador Drive, Vestal, New York. The House sits at the bottom of a hill, at the top of which is State Route 26 (Route 26). A State Department of Transportation (DOT) substation (the Substation) is located on Route 26, south of and uphill from the House.

Case information

UID: 2008-044-010
Claimant short name: KRESS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 108004
Motion number(s):
Cross-motion number(s):
Claimant's attorney: McDONOUGH & ARTZ, P.C.
BY: Philip J. Artz, Esq., of counsel
BY: Joseph F. Romani, Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 10, 2008
Official citation:
Appellate results:
See also (multicaptioned case)


Lawrence Allen, a Highway Maintenance Supervisor II for DOT, testified on claimants' behalf. He described the location of various drainage ditches and pipes which channel the water runoff from the Substation's parking lot and from Route 26. The Substation drainage ditch eventually empties into the Route 26 drainage ditch (the Ditch). The Ditch was constructed in the late 1960's. It is a V-shaped ditch lined with concrete guide rail posts weighing approximately 60 pounds each. All the ditches and pipes in question are uphill from Mirador Drive and the House, and no other pipes or ditches drain into the Ditch above Mirador. The Ditch does not traverse claimants' property, nor is it intended to discharge upon or across claimants' property.

Allen stated that he was advised of a problem with the Ditch shortly after Memorial Day, 2002, a few days after a "flash flood"(1) which had occurred on May 28, 2002. He visited the site with Tom Leskowski and Peter Schultz, also DOT employees (and who also testified at trial). He observed that the water had come through the Ditch with such force that it dislodged a number of the concrete posts, leaving them standing straight up in some cases and at the bottom of the Ditch in others. He also noticed a hole in the side of the Ditch's bank, and was able to observe the path that the water took where it flowed down the hill through the hole toward the House. He instructed his employees to make repairs to the Ditch.

Allen further testified that approximately one year before this event, Claimant Susan Kress complained to him about debris coming down the hill into her yard. He first inspected the Ditch, but saw no indication that it was functioning improperly. He next inspected the "blacktop" ditch which drained the Substation's parking lot, and found that it had filled with sand, causing water to overflow and push debris and leaves down the hill. He had this blacktop ditch cleaned, which apparently resolved the problem.

On cross-examination, Allen acknowledged that, during the May 28, 2002 rainfall which was the cause of the Ditch failure, the rain was so heavy that DOT closed a portion of Route 26 near Mirador Drive for a short time due to the water washing across it. Allen further indicated that he had neither been involved in, nor was he aware of, any other repairs made to the Ditch during the course of his employment with DOT. He also stated that he had searched the records and found no indication of any other repairs. He did admit, however, that some of DOT's records had been misplaced during a move, and further acknowledged that he had not created any records regarding this particular incident.

Thomas Leskowski, DOT's Assistant Resident Engineer for Broome County, also testified. He stated that he was not familiar with the Ditch until he received word of claimants' complaint in 2002. He said he went with Peter Schultz to look at the area, although he did not recall whether Allen went with them. He described the condition of the Ditch, and stated that movement of the guide rail posts, which had been lifted and dislodged by the heavy flow of water, would have then impeded the flow of water through the Ditch, causing it to breach and overflow.

Leskowski also said he walked around claimants' property. He noticed that the driveway was cracked, but said that it was "old" and "weathered." He noticed that a set of concrete steps had shifted, but said that he had seen similar situations "constantly." He described his recollection of other areas where damage had allegedly been sustained as "fuzzy."

Peter Schultz also testified on claimants' behalf. At the time of the incident, he held the position of Assistant Resident Engineer for Broome County Highway Maintenance at DOT.(2) Schultz confirmed Allen's description of the damage done to the Ditch by the heavy flow of water, particularly with regard to the displacement of the concrete guide rail posts, as well as the path taken by the overflow down the hill. He stated that he did file a report regarding the matter, which consisted of a claim form for claimants' next door neighbors, the Curtises. Although he did recall speaking to claimant Thomas Kress regarding the damage to claimants' property, and walking around the outside of the House to view it, he did not fill out a claim form for claimants. He acknowledged that he advised Mr. Kress that, due to the dollar sum of the damages sustained by claimants, they would have to file suit in this Court. He indicated that the basis for this advice was the $5,000 limit on his authority to settle claims.

During his inspection of claimants' yard, he noticed that the asphalt driveway was cracking, although it had sustained wear and tear due to aging. He said that the stairway on the south side of the House showed cracking and settlement, but that the damage was not recent. He described it as the normal settlement of a structure as it ages. Finally, Schultz recalled that there had been "torrential rain" in the area of Mirador Drive on the day of the incident.

Claimant Susan Kress also testified. Although she was present at the time that defendant's representatives visited the premises, she did not engage in any discussions with them. Mrs. Kress described the House and premises. She also recounted that she and her husband had installed a french drain in the late 1980's, after incurring water damage in the basement due to runoff from a storm. She also said that when this prior flooding had occurred, her husband (a DOT employee at the time) had "handled it." She also testified in great detail regarding the various damage allegedly inflicted upon the property in this particular incident.(3) However, in light of the Court's decision, it is unnecessary to elaborate on that testimony.

Claimant Thomas Kress testified as well. Although he no longer resided at the House at the time of the flooding, he stated that he had visited there "a couple of times a week" for several years prior, and would perform various maintenance tasks at the premises. Mr. Kress testified that there had been a water problem previously, which he believed had occurred in 1995 or 1996.(4) He said that at that time, he had spoken to DOT's Broome County Resident Engineer Erickson,(5) who came to the house to look at the situation. Mr. Kress said that he and Erickson walked up to a ditch, and saw that it was filled with dirt and debris, apparently causing the water to overflow on to claimants' property.(6) Mr. Kress said he asked Erickson to reimburse claimants for their cleanup costs at that time.

Mr. Kress stated that he was present when Leskowski and Schultz visited the scene and inspected the Ditch, the day after the water damage. Mr. Kress said he showed them the various items of damage around the exterior of the property, although they did not enter the House. He stated that he went with them to inspect the Ditch, and said that it was filled with debris. Mr. Kress also elaborated in detail regarding the alleged damage to the property.

This is not a case of nuisance (see Hernigle v State of New York, Ct Cl, Dec. 20, 2005, Fitzpatrick, J., Claim No. 105457 [UID # 2005-018-496]), nor one of trespass (see Zutt v State of New York, Ct Cl, July 27, 2006, Scuccimarra, J., Claim No. 109154 [UID # 2006-030-017], affd 50 AD3d 1133 [2008]), as there is no allegation that defendant's conduct was either intentional or wilful. Rather, claimants' theory of liability is that the Ditch was "improperly and negligently designed and or installed and or maintained and which [ditch] was insufficient to handle the volume of water."(7) However, some sort of evidence would be necessary - and was not presented - to show that defendant's allegedly negligent behavior was not in compliance with the applicable standards, and thus led to the damages sustained by claimants (see Knospe v State of New York, Ct Cl, Sept. 19, 2005, Minarik, J., Claim No. 101043, Motion No. M-69815 [UID # 2005-031-077]).

Claimants have completely failed to meet their burden of proof in this regard. No evidence whatever was elicited regarding the design or construction of the Ditch, other than that it was apparently constructed in the late 1960's. Certainly there was no testimony that the Ditch was based upon an unreasonable design or was itself designed without adequate study (see e.g. Weiss v Fote, 7 NY2d 579 [1960]; 145 Route 303 v State of New York, Ct Cl, Apr. 7, 2005, Mignano, J., Claim No. 101601 [UID # 2005-029-483]). Moreover, there was no showing that the installation was improper or negligent or that the capacity of the Ditch was insufficient so as to constitute negligence (see 145 Route 303 v State of New York, supra). Claimants testified that they owned the House for more than 15 years prior to the date of this flooding. The only other incident during that time of water flowing out of this particular ditch and onto claimants' property was when the Ditch was obstructed by debris, which occurred sometime between the late 1980's and the mid-1990's, depending on which claimant's testimony was accurate. That one occurrence is obviously not adequate to show that the Ditch had insufficient capacity to handle an appropriate volume of water.

Claimants' final contention is that the Ditch was inadequately maintained. However, no proof was submitted in that regard either. Although Mr. Kress testified that a ditch above his property was filled with debris at least six years before the accident, DOT employee Allen testified that he had inspected the Ditch a year prior to this particular incident, and it was clear. In the absence of any showing that the State had actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct it, no liability can attach (see 145 Route 303 v State of New York, supra).

The claim is therefore dismissed on the merits. Any motions not previously determined are hereby denied. Let judgment be entered accordingly.

June 10, 2008

, New York


Judge of the Court of Claims

1. All quotes are taken from the Court's recording of the proceeding, unless otherwise indicated.

2. At the time of the trial, Schultz was employed with DOT as a Civil Engineer I in the Planning Department.

3. For the record, none of the allegedly necessary repairs had been performed as of the date of the trial except for carpet cleaning in the basement, although claimants did have estimates for replacement of various items, including the basement carpet, a portion of the driveway, and a set of concrete stairs. Moreover, testimony elicited upon cross-examination indicated that all the items for which recovery was sought were at least 15 years old at the time of the flooding, and thus presumably subject to substantial depreciation.

4. This incident, which occurred in 1995 or 1996 according to Mr. Kress, is apparently the same flooding referenced by Mrs. Kress as occurring in the late 1980's. Both claimants testified that a french drain was installed behind the House after this flooding. According to Mr. Kress, that drain served only to direct water from the House's gutters to the street.

5. On cross-examination, Mr. Kress stated that he had not remembered Erickson's name when he was deposed prior to trial, but that he remembered the name at a later time.

6. While the ditch viewed by Mr. Kress and Mr. Erickson may have been the Ditch which overflowed in this case, there was no testimony to that effect. It should be noted that, as previously set forth, the testimony of various DOT employees indicated that the water problem at the House the year before occurred due to obstructions and material in a different ditch.

7. Claim, 5.