New York State Court of Claims

New York State Court of Claims
ZUTT v. THE STATE OF NEW YORK, # 2010-030-518, Claim No. 117193, Motion No. M-77455, Cross-Motion No. CM-77575


Motion by claimant for summary judgment on issue of liability granted. Prior litigation is now res judicata as to the same or related facts, and as to defenses that were raised or that may have been raised. State liable for damage to property based upon failure to stop continuing trespass, in the wake of an additional storm event. Cross-motion to amend answer denied.

Case information

UID: 2010-030-518
Claimant(s): WILLIAM A. ZUTT and DIANE E. ZUTT
Claimant short name: ZUTT
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 117193
Motion number(s): M-77455
Cross-motion number(s): CM-77575
Claimant's attorney: BOLGER, HINZ & ZUTT, P.C.
Third-party defendant's attorney:
Signature date: March 3, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read and considered on the motions filed herein:

1,2 Notice of Motion; Affidavit by William A. Zutt, claimant, and attached exhibits

3,4 Notice of Cross-Motion; Affirmation by John M. Healey, Assistant Attorney General and attached exhibits

5 Affidavit in Reply and in Opposition to Cross-Motion by William A. Zutt, Claimant

6 Affirmation by John M. Healey, Assistant Attorney General

7-9 Filed papers: Claim, Answer; Zutt v State of New York, UID # 2006-030-017, Claim No. 109154 (Scuccimarra, J., July 27, 2006)

William A. Zutt and Diane E. Zutt allege in their claim that a continuing nuisance and trespass has been caused by the discharge of collected storm water through the defendant's drainage culvert onto and across claimants' property from New York State Highway Route 9D (hereafter 9D). In a prior decision on liability after trial the Court found that the State of New York was 100% responsible for damage caused to claimants' property during a storm event on June 17, 2001 by virtue of its alteration of drainage conditions through the use of pipes and catch basins, which increased the velocity of any water collected, increased the erosion potential of any water discharged across claimants' property, and various failures to improve or ameliorate conditions to avoid damage or potential damage to claimants' property. [See Zutt v State of New York, UID # 2006-030-017, Claim No. 109154 (Scuccimarra, J., July 27, 2006)]. The Court also found that defendant had failed to establish a prescriptive easement to discharge water across claimants' property by clear and convincing evidence. A damage figure of $3,000.00 was agreed to without a trial, and judgment for claimant was entered in that amount. Thereafter, the liability decision was affirmed by the appellate division. [See Zutt v State of New York, 50 AD3d 1133 (2d Dept 2008)]. No further appeal was taken, and the time within which to do so has expired.

While claimants sought money damages in this Court, they also sought injunctive relief in State Supreme Court. The lawsuit there was at first dismissed, but then the Appellate Division reversed and remanded the matter, saying that the trial court should not have dismissed the cause of action for injunctive relief against the State of New York. [See Zutt v State of New York, 50 AD3d 1131 (2d Dept 2008)].(1)

On remand, in a decision and order issued October 15, 2009, Putnam County Supreme Court granted summary judgment to these claimants.[Affidavit by William A. Zutt, Exhibit D]. The Court directed that a permanent injunction issue against the State of New York prohibiting the discharge of water onto claimants' property and directing the State of New York to act in accordance with an engineering solution proposed by claimants' expert engineer, namely, running a culvert pipe within its right-of-way on Route 9D, to carry storm water away from claimants' property and discharge it into the natural stream that flows under Route 9D only 250 feet north of claimants' property. [See id.]. To this Court's knowledge, there has been no appeal from that determination.

The present claim for damages arises from the State's alleged continued failure to prevent the discharge of water onto claimants' property, and the damage caused as a result of such continued failure when another storm event occurred on July 17, 2009. [Claim No. 117193]. Claimants allege that there was damage to a gravel walkway, damage to a railroad tie stairway, damage to landscaped areas of the site and damage to drained control structures installed by claimants. [See Claim No. 117193, 11]. In its answer, in addition to general denials, defendant interposes five affirmative defenses, including the claimants' or another's culpable conduct, an act of God, immunity for privileged discretionary determinations, claimants' failure to mitigate, and funding priorities.

Claimants now move for summary judgment on res judicata grounds at least as to liability. Defendant opposes the motion, and cross-moves for an order allowing the State to amend its answer to include an additional defense of prescriptive easement.

For reasons that follow, claimants' motion is granted, and defendant's cross-motion is denied.

As noted, in the prior litigation before this Court the defendant was found liable in trespass, and failed to establish by clear and convincing evidence its entitlement to an easement by prescription to drain its surface water across claimants' property, for the prescriptive period of ten years before accrual of the claim. See Real Property Actions and Proceedings Law 311, 501. The finding was affirmed by the appellate division. [See Zutt v State of New York, 50 AD3d 1133 (2d Dept 2008)].

To establish a prescriptive easement(2) , a party must establish use of the property that is adverse, open and notorious, continuous and uninterrupted for a ten year period by clear and convincing evidence. Morales v Riley, 28 AD3d 623, 624 (2d Dept 2006). Defendant's proposal that it may again argue that a prescriptive easement has been established is puzzling. More puzzling still is the defendant's assertion that it may establish that an easement by prescription(3) was created in 1928 when the State began discharging water from the culvert. [See [Reply] Affirmation by John M. Healey, 10]. First, any prescriptive period would inevitably apply only ten years prior to accrual of this claim, thus the period would overlap the findings made in the earlier decision. Moreover, this defense is precisely the type of matter that might and should have been raised in the previous litigation [see Taylor v State of New York, 302 NY 177 (1951)](4) , thus defendant may not raise such defense now. Accordingly, the motion to amend the answer to include the defense of prescriptive easement is denied. Civil Practice Law and Rules 3025(b). This is because "where the lack of merit of a proposed defense is clear and free from doubt, a motion for leave to amend an answer to raise that defense should be denied." See Lucido v Mancuso, 49 AD3d 220 (2d Dept 2008) appeal withdrawn 12 NY3d 804 (2009); Long Beach Tango, LLC v MSBA Corp., 55 AD3d 686 (2d Dept 2008).

Significantly, in parallel litigation in Supreme Court, claimants were granted permanent injunctive relief on motion for summary judgment, and defendant was directed to act in accordance with the proposal by Todd W. Atkinson, PE, claimants' engineer as set forth above. Notably, in opposing the motion for summary judgment in Supreme Court, defendant included the same affidavit by Michael Schaefer, PE, its expert engineer, that is included here. [See Affirmation by John M. Healey, Assistant Attorney General, Exhibit C]. Mr. Schaefer states that it was the fault of the claimants that their property was damaged because they constructed two bridges and installed stone under same which then restricted the flow of the stream channel, and degraded the flow characteristics of the drainage area. [Ibid.].

Defendant does not deny that a storm event occurred on July 17, 2009, and affirmatively indicates in its engineer's affidavit that it has still not taken steps to stop the continuing trespass found by this Court, or to comply with Supreme Court's permanent injunction. "[C]laims for continuing trespass . . . generally give rise to successive causes of action that accrue each time a wrong is committed . . . (citations omitted)." Smith v Town of Long Lake, 40 AD3d 1381, 1383 (3d Dept 2007).

Civil Practice Law and Rules 3212(b) provides in pertinent part:

. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.

Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

In this case, claimants have made the requisite showing of entitlement to judgment on liability as a matter of law by sworn statements in the verified claim, in the affidavit by claimant William A. Zutt, and the papers attached to same, and in the prior litigation between the parties which is now res judicata as to the same or related facts, and as to defenses that were or may have been raised [see e.g. Taylor v State of New York, supra; Matter of City of New York v Schmitt, 50 AD3d 1032 (2d Dept 2008)], and defendant has failed to raise any triable issue of fact. Indeed, defendant has not denied that it has failed to undertake the previously directed measures to prevent the discharge of water across claimants' property, that water continues to be diverted by defendant with no change, and that following a storm event water discharged across claimants' property. The result is part of the continuing trespass.

Based on the foregoing, claimants' motion for summary judgment on the issue of liability is granted, and defendant's cross-motion to amend its answer is denied.

Trial on the issue of damages shall be held as soon as is practicable, including any mitigation issues.

March 3, 2010

White Plains, New York


Judge of the Court of Claims

1. By implication the dismissal of the cause of action for damages for inverse condemnation was affirmed. Of course, a cause of action for damages for inverse condemnation was properly brought before this court in the Court of Claims, although the cause of action was ultimately not sustained.

2. Gerbig v Zumpano, 7 NY2d 327 (1960), cited by defendant for the proposition that "the mere excessive use of misuse, or the temporary abandonment of an existing easement, do not destroy the original easement" [Affirmation by John M. Healey, Assistant Attorney General,

13] applies by its terms to easements by grant, not the putative prescriptive easement proposed here. See also Gold v DiCerbo, 41 AD3d 1051 (3d Dept 2007) concerning elements for abandoning an easement created by grant.

3. If something other than an easement by prescription is claimed it is not set forth in the papers and should have been raised in the prior litigation in any event.

4. The claimants therein had recovered damages against the State for earlier flooding damage in previous years. The State argued that "by uninterrupted use of the dam at its present height . . . the State acquired as against all the world a right to continue to so maintain and use the dam. Of course, that alleged defense would have been available to the State as against the earlier claims for damage to this very property, and it is undisputed that no such defense was asserted by the State against those earlier claims which went to judgment. Since that alleged right of the State, now asserted for the first time, was as available then as now, it must be held that those earlier judgments have concluded the State on this issue as to these claimants, according to the principle of res judicata . . ." Taylor v State of New York, supra at 184.