Claimant sought damages based upon flooding which occurred after a rain storm, contending that the State negligently installed and maintained certain ditches and culverts along a State highway. The Court found that there was no evidence that the State violated any engineering or design standards, nor did it have any actual or constructive notice of the condition which resulted in the flooding, and therefore dismissed the claim.
|Claimant short name:||ROZENFINE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||VICTOR ROZENFINE, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Michael R. O'Neill, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 29, 2010|
|See also (multicaptioned case)|
Claimant has brought this claim alleging that the State negligently installed and maintained ditches, culverts, and streambeds along State Route 96, and that as a result the foundation walls of his residence were substantially damaged by floodwater during a rainstorm on June 1, 2006. In addition to the damage to his foundation walls, claimant also alleges that his furnace, hot water heater, water conditioner, computer, dehumidifier, and other personal items were destroyed by this flooding, and that the floodwater left a deposit of mud and other debris in his basement and on his property.
The trial of this claim was bifurcated, and this decision solely addresses the issue of liability.
Claimant, proceeding pro se, called three witnesses at the trial of this claim. Defendant did not call any witnesses, but with the permission of the Court, relied upon its cross-examination of claimant's witness Carl F. Ford as its evidence-in-chief.
Prior to the taking of testimony, the parties stipulated that a rainstorm occurred on the date in question, June 1, 2006, and that claimant's home was damaged as a result of this storm. The parties also stipulated that the drainage system along Route 96 was inadequate to handle the running water generated by the storm.
Mary Ann Vellake, a neighbor of the claimant, testified that she has experienced flooding of her basement on numerous times, and that the storm on June 1, 2006 caused flooding which also damaged her home.
Doreen Schrader offered testimony regarding a meeting that she attended with claimant within one week following this storm. Ms. Schrader testified that Mr. Ford from the Department of Transportation (DOT), and John Carpenter, a representative from State Senator Michael Nozzolio's office, also attended this meeting.
According to Ms. Schrader, Mr. Ford acknowledged at this meeting that the culverts were too small to handle the runoff water, and that they needed to be larger. She also testified that Mr. Ford offered claimant a $5,000.00 "settlement" at the meeting.
Carl F. Ford, the DOT representative, was also called as a witness by the claimant. Mr. Ford testified that he first met with claimant on June 2, 2006, the day after the flooding, when he viewed claimant's property and assessed the damage which had occurred.
Mr. Ford testified that the severity of the storm was the cause of the flooding, and that the culverts crossing under the highway could not handle the extremely high runoff of water. He also testified that these culverts had originally been installed in 1930, and that current design standards required a larger size for those culverts.
Mr. Ford testified that following the storm, he utilized the emergency contract procedure to clean out the ditches and driveway pipes, in addition to replacing the culverts crossing under the highway.
Under cross-examination, Mr. Ford acknowledged that the DOT had the responsibility of maintaining the culverts running under Route 96, as well as the ditches in front of claimant's property. Mr. Ford testified, however, that the State no longer had the resources to perform regular periodic maintenance of the culverts and ditches, but rather was in a "demand" mode, which meant that cleaning and maintenance would be performed on a priority basis.
Mr. Ford testified, nevertheless, that even though the ditch in front of claimant's property was in need of cleaning, he did not believe that the state of the vegetation therein caused the flooding which in turn caused the damage to claimant's home. Mr. Ford attributed the flooding to the extremely high runoff of water that the culverts running under Route 96 could not accommodate.
Mr. Ford also acknowledged, as testified to by Ms. Schrader, that the department did in fact offer $5,000.00 to claimant in an effort to assist him with debris removal and cleanup, but that DOT had not admitted any wrongdoing, nor had it offered claimant any payment for the damage to his home.
Finally, Mr. Ford testified that DOT records indicate that one inquiry had been made by claimant regarding the condition of his ditches, approximately one year prior to the flooding which occurred on June 1, 2006.
Under the doctrine of qualified immunity, the State may not be held liable unless the claimant can establish that the drainage structures in question were designed without adequate study or were based upon an unreasonable design decision (Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). In this particular case, the testimony from Mr. Ford established that the highway crossing culverts were constructed in or around 1930. Although Mr. Ford further testified that present standards for construction required larger culverts, there was no evidence whatsoever that the drainage structure constructed and installed in 1930 was designed without adequate study or was based upon an unreasonable design decision. Furthermore, it is well settled that the State is not obligated to implement design standards adopted after construction unless it undertakes significant repair or reconstruction (Holscher v State of New York, 59 AD2d 224, affd 46 NY2d 792; Hay v State of New York, 60 AD3d 1190; Guzov v State of New York, 48 AD3d 751). There was no evidence introduced that would indicate that the State had been involved in any major reconstruction of the roadway or drainage system since the culverts were installed in 1930. Accordingly, the State cannot be held liable in this matter based upon any claim of design defect or improper installation.
As a landowner, the State, like any other owner, is responsible only for hazards that can reasonably be foreseen (Flaherty v State of New York, 296 NY 342), and it has the duty to exercise reasonable care under the circumstances (Miller v State of New York, 62 NY2d 506). The Court notes that there was no expert proof introduced to demonstrate that the State failed to comply with standards of maintenance, repair or upkeep (Nyberg v State of New York, 154 Misc 2d 199; Klingler v State of New York, 213 AD2d 378). However, even though claimant did not present any expert testimony, he contends that the State failed to adequately maintain the culverts, ditches, and driveway pipes. Despite claimant's assertions, no admissible evidence was introduced to establish that the State had adequate notice, or should have been on notice, that the drainage system was not performing properly prior to the storm of June 1, 2006. Without notice of the alleged defect in the drainage system, whether it is actual or constructive notice, defendant cannot be held liable (Bethel v New York City Tr. Auth., 92 NY2d 348).
Therefore, while it is deeply sympathetic to claimant's plight, and the personal suffering he has endured and continues to endure, as a result of the extensive damage to his residence, this Court cannot find any basis on which to assess liability against the State. In sum, there is no evidence to establish that the State violated any engineering or design standards with regard to the culverts, ditches, or driveway pipes, and no proof that the State either created, or had actual or constructive notice of, the condition which resulted in the flooding of claimant's property. Rather, it appears to this Court that claimant suffered damage as a result of a sudden and severe storm which created runoff that the existing culverts were unable to handle.
Therefore, in accordance with the foregoing, this claim must be and hereby is DISMISSED.
Any motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
June 29, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims