New York State Court of Claims

New York State Court of Claims

HAKES v. THE STATE OF NEW YORK, #2008-044-513, Claim No. 111168, Motion No. M-72061


Court denied defendant’s motion, based on theory of limited immunity, for summary judgment dismissing claim for negligent design/maintenance of a bridge where damage to property ensued in flooding incident in which debris clogged bridge, causing creek to overflow. Defendant did not show that the bridge was designed and/or constructed in accordance with the appropriate standards in effect at the time, nor did defendant respond to claimant’s allegation that the debris was negligently allowed to build up in the creek.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 22, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant commenced this action to recover for damages to his personal property allegedly caused by flooding that took place on July 22, 2003. Defendant State of New York (defendant) answered and asserted various affirmative defenses. Defendant also filed and served this motion for summary judgment, which was originally returnable August 23, 2006. However, the Court was notified by counsel for the claimant that claimant had filed a proceeding in Bankruptcy Court and that a motion by the bankruptcy estate to abandon the claim was pending. The Court accordingly adjourned this motion without date. The Bankruptcy Court granted the trustee’s motion, and by order dated July 28, 2006, the estate’s rights in and to Claim No. 111168 were deemed abandoned.

Counsel for claimant then moved, by order to show cause, to withdraw as attorney of record. Claimant opposed the motion, and defendant took no position. This Court granted claimant’s counsel’s motion (Hakes v State of New York, Ct Cl, July 16, 2007, Schaewe, J., Claim No. 111168, Motion No. M-73187 [UID # 2007-044-557]). Claimant, having failed to procure another attorney, made several requests for adjournment of this motion, which were granted. Claimant thereafter made an additional submission, opposing this motion.

Defendant moves for summary judgment dismissing the claim, on the ground that defendant is entitled to limited immunity due to budgetary constraints. Defendant further contends that in light of those budgetary constraints, it acted with reasonable care under the circumstances by advising claimant that he needed to take precautions to protect his property, located in a flood plain, which advice was ignored by claimant.

The facts, as set forth by the claimant in his claim, are that heavy rain on July 22, 2003 caused flooding in Mead’s Creek, and that debris clogged the creek where it passes beneath State Route 17 (the Mead’s Creek Bridge), in the area of Interstate 86 and State Route 415 (Route 415). Claimant alleges that as a result of the build-up of the debris, the creek overflowed onto claimant's property, causing the damages of which he complains. Claimant expressly alleges causes of action for negligence and trespass,[1] stating that defendant negligently, improperly or recklessly designed, maintained and/or repaired the Mead’s Creek Bridge, negligently allowed debris to build up in the creek upstream of the bridge, and failed to take appropriate measures to insure safety with regard to the creek which had previously caused flooding damage to neighboring property owners.[2] In his “Affirmation in Opposition” to defendant’s motion, claimant also alleges that defendant had ample notice of the propensity for flooding in the area, due to floods in both January 1996 and November 1996.[3]

In support of its motion, defendant has submitted two affidavits by engineers employed by the New York State Department of Transportation (DOT). The Affidavit of James E. Clements, P.E., the Planning and Program Manager for the DOT Region in question, states he first became aware of problems with flooding in the area during a 2001 Regional Program Committee update in 2001. He indicates that further development of potential remedies for the problem was necessary at that point. He further states that in 2003, it was determined that the bridge needed to be replaced due to structural problems, at a preliminary cost estimate of approximately $10 million. Finally, he avers that some of the funding is available, and that the necessity for additional funding will need to be considered in the future.

Defendant also submitted the Affidavit of A. Paul Kieda, P.E., the Regional Hydraulics Engineer for that DOT region. Kieda states that the bridge in question was built in 1967. He acknowledges that Route 17 had to be closed in the area of the bridge in January 1996 due to flooding, and that traffic was diverted. An analysis was subsequently performed (in 1998) which indicated that the bottom of the bridge needed to be raised by “approximately 5' in order to meet the current NYSDOT recommended design clearance standards of 2' above a 50 year flood.”[4] Kieda further acknowledges that the area flooded again on July 22, 2003, the date referenced in the claim, and that a post-flood inspection indicated that the flood waters rose 0.5 meters above the bottom girder of the bridge, and further that “a significant amount of debris accumulated around the pier.”[5] Kieda states that he has discussed the matter with his superiors between 1996 and 2003, and notes that raising the bridge structure itself will also necessitate raising the accompanying approaches of Route 17, at substantial cost.

On a motion for summary judgment, the moving party must present evidence in admissible form which establishes its right to judgment as a matter of law, while the opposing party must present proof that demonstrates the existence of a factual issue (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]). If the movant does not meet its burden, the motion must be denied regardless of the sufficiency of the opposing papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Moreover, for the purposes of a summary judgment motion, the factual allegations of the opposing party must be deemed true and be granted every favorable inference (Bershaw v Altman, 100 AD2d 642, 643 [1984]).

With these guiding principles in mind, it is apparent that defendant’s motion must be denied.  First, there has been no showing or even any assertion by defendant that the bridge was originally designed and constructed in accordance with the standards accepted at the time of construction (see Cipriano v State of New York, 171 AD2d 169, 173 [1991], lv denied 79 NY2d 756 [1992]). Accordingly, the existence of a question of fact is clearly indicated by claimant’s allegation of negligent design and/or construction. Additionally, claimant alleges that defendant negligently allowed debris to build up in the creek, contributing to the overflow of its banks and adding to the flooding problem. Defendant has not responded to this particular allegation.

Claimant also alleges the existence of a dangerous condition, of which defendant had prior notice due to the previous flooding. In its motion papers, defendant essentially acknowledges this condition and its prior knowledge thereof, with the statements in the affidavits that the bridge had structural problems and that it was too low to meet the flood clearance standards. It is well-established that liability may result when the State has actual or constructive notice of a dangerous condition, and yet fails to correct or warn of that condition (Farrell v State of New York, 46 AD2d 697 [1974]; Freund v State of New York, 137 AD2d 908 [1988], lv denied 72 NY2d 802 [1988]). Defendant's allegations that it warned claimant, via a letter dated July 15, 1997,[6] are inadequate for purposes of this motion. That letter advised claimant that his installation of a drainage pipe with a 30-square-foot waterway opening was not sufficient to accommodate design flows for that drainage channel.

While that letter might suffice as a warning if defendant had shown that the sole proximate cause of the flooding on claimant’s property was the size of the drainage pipe claimant installed, rather than improper design or maintenance of the bridge, no such showing was made. In fact, claimant alleges that this drainpipe, located south of Route 415, had nothing to do with the flooding that caused his damages, as said flooding was apparently north of Route 415. While claimant’s allegation in this particular instance may - or may not - be accurate, it reveals yet another question of fact to be determined at trial.

Defendant’s Motion No. M-72061 for summary judgment dismissing the claim is denied.

February 22, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on July 7, 2006; Affirmation of Joseph F. Romani, AAG, dated July 5, 2006, and attached Exhibits A through E.

2) Defendant’s Memorandum of Law dated July 5, 2006.

3) Claimant’s undated “Affirmation in Opposition”, and attached exhibits.

Filed papers: Claim filed on July 22, 2005; Verified Answer filed on August 18, 2005.

[1]. The Court notes that claimant has also implicitly set forth a cause of action for nuisance.
[2]. Claim, ¶ 6.
[3]. “Affirmation in Opposition” to Motion for Summary Judgment, ¶ 5.
[4]. Affidavit of A. Paul Kieda (Defendant’s Motion, Exhibit E), ¶ 5.
[5]. Affidavit of A. Paul Kieda (Defendant’s Motion, Exhibit E), ¶ 6.
[6]. Defendant's Motion to Dismiss, Exhibit C.