Opinion
# 2018-040-078 Claim No. 126554 Motion No. M-91071 Cross-Motion No. CM-91547
09-17-2018
SEAWORTHY INSURANCE COMPANY a/s/o JOHN HEIDRICH v. NEW YORK STATE CANAL CORPORATION, a subsidiary of NEW YORK STATE THRUWAY AUTHORITY, and NEW YORK STATE THRUWAY AUTHORITY
Harry R. Howard, Esq. BARBARA D. UNDERWOOD Attorney General of the State of New York By: Thomas Trace, Esq., Senior Attorney Harry R. Howard, Esq.
Synopsis
State's Motion for Summary Judgment on the basis of governmental function immunity granted. Claimant's Cross-Motion to Strike 3 Affirmative Defenses raised in State's Second Amended Answer denied.
Case information
| UID: | 2018-040-078 |
| Claimant(s): | SEAWORTHY INSURANCE COMPANY a/s/o JOHN HEIDRICH |
| Claimant short name: | SEAWORTHY |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE CANAL CORPORATION, a subsidiary of NEW YORK STATE THRUWAY AUTHORITY, and NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126554 |
| Motion number(s): | M-91071 |
| Cross-motion number(s): | CM-91547 |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Harry R. Howard, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Thomas Trace, Esq., Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | September 17, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion for summary judgment dismissing the Claim pursuant to CPLR 3212 on the basis of governmental function immunity is granted, and the remainder of the Motion is denied as moot. Claimant's Cross-Motion to strike three affirmative defenses set forth in Defendant's Second Amended Answer and for summary judgment in its favor is denied as moot.
The Claim, which was filed in the office of the Clerk of the Court on August 6, 2015, alleges that, on June 28, 2013, the boat of Claimant's subrogor, John Heidrich, sustained damage while the boat was docked in the Erie Canal (hereinafter, "Canal") near Lock 16 in St. Johnsville, New York (Claim, ¶ 4). Claimant asserts Defendant was negligent in the operation and maintenance of the Canal when it permitted a gate near the lock to remain open, causing flood waters to be diverted into the Canal, which caused the boat to be pushed over the Canal wall, puncturing the hull of the boat (id., ¶ 5). In its Second Amended Answer, served and filed on December 2, 2016 pursuant to the Decision and Order of this Court (Seaworthy Ins. Co. v State of New York, UID No. 2016-040-095 [Ct Cl, McCarthy, J., Nov. 14, 2016]), Defendant raised as its Sixth and Seventh Affirmative Defenses: that Defendant is entitled to immunity on the basis that the State's acts or omissions complained of in the Claim were undertaken as part of its governmental function, Defendant owed Claimant no special duty, and Defendant's alleged acts or omissions were the result of an exercise of discretion; and Defendant's employees took actions which were privileged as being discretionary determinations made while acting within the scope of their duties as public officials, and, therefore, Defendant is immune from any liability for such actions.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
In determining whether Claimant may assert a negligence Claim against Defendant, the first issue for the Court to decide is whether Defendant "was engaged in a proprietary function or acted in a governmental capacity at the time [that] the claim arose" (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 717 [2017], quoting Applewhite v Accuhealth, Inc., 21 NY3d 420, 425[2013]; see Turturro v City of New York, 28 NY3d 469, 477 [2016]; T.T. v State of New York, 151 AD3d 1345, 1346 [3d Dept 2017]). If Defendant was engaged in a proprietary function - that is, activities that "essentially substitute for or supplement 'traditionally private enterprises' " - it is subject to suit under ordinary negligence principles applicable to non-governmental actors (Sebastian v State of New York, 93 NY2d 790, 793 [1999], quoting Riss v City of New York, 22 NY2d 579, 581[1968]; T.T. v State of New York, supra at 1346; see Drever v State of New York, 134 AD3d 19, 22 [3d Dept 2015]). However, if Defendant's actions were " 'undertaken for the protection and safety of the public pursuant to the general police powers,' " they are deemed governmental and Defendant may be subject to suit only if it owed a special duty to Claimant and if the governmental function immunity defense does not apply (Applewhite v Accuhealth, Inc., supra at 425, quoting Sebastian v State of New York, supra at 793; Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., supra at 713; T.T. v State of New York, supra at 1346).
Court of Appeals cases dealing with governmental tort liability "have long distinguished between discretionary and ministerial acts of government officials" (McLean v City of New York, 12 NY3d 194, 202 [2009]). In Tango v Tulevech, (61 NY2d 34 [1983]), the Court made clear that discretionary acts may not be a basis of liability: "[W]hen official action involves the exercise of discretion, the officer is not liable for the injurious consequences of that action even if resulting from negligence or malice" (id. at 40). The Court also stated that "when the action is exclusively ministerial, the officer will be liable if it is otherwise tortious and not justifiable pursuant to statutory command" (id.). In Lauer v City of New York (95 NY2d 95 [2000]), the Court elaborated on Tango, repeating that a public employee's discretionary acts "may not result in the municipality's liability even when the conduct is negligent," but adding that even negligent ministerial acts are not "otherwise tortious" where a plaintiff cannot show "a duty running directly to the injured person" (id. at 99-100). Even where an act is ministerial, the Court said, "[t]o sustain liability against a municipality, the duty breached must be more than that owed the public generally" (id. at 100). "Thus, Tango and Lauer hold that discretionary municipal acts may never be a basis for liability, while ministerial acts may support liability only where a special duty is found" (McLean v City of New York, supra).
Here, the incident occurred on the Erie Canal, which was built, and has been operated and maintained by the State or its subsidiary entities since its completion in 1825, almost 200 years ago. Long ago, the Court of Appeals declared, in reference to the predecessor statute to Canal Law § 120, that the "object in view was the protection of the citizen and not the exemption from liability of the State" (Sipple v State of New York, 99 NY 284, 288 [1885]; see Hart v State of New York, 192 Misc 492, 496 [Ct Cl 1948]). The provision of public protection, in turn, is a "classic governmental, rather than a proprietary function" (Applewhite v Accuhealth, Inc., supra at 430, quoting Valdez v City of New York, 18 NY3d 69, 75 [2011]; see Metz v State of New York, 20 NY3d 175, 179-180 [2012]; but see Arquette v State of New York, 190 Misc2d 676, 689 [Ct Cl 2001]). Indeed, the State constructed, equipped, and maintains the Canal "for the public use" (People ex rel New York Cent. R. Co. v Public Service Commission, Second Dist., 198 AD 436, 438 [3d Dept 1921]). Moreover, the Canal and its terminals "are great public works for the benefit of all the people. These activities are governmental functions, exercised by the [S]tate solely for the public welfare. The [S]tate has made a great public highway" which it controls and manages "in the public interest" (id., pp. 443-444 [Kellogg, P.J., dissenting). As noted, the Erie Canal has been operated by Defendant for nearly 200 years. Even if private actors exist that own and operate other canals on a proprietary basis, a fact that is not established in this Record, that would not be determinative because, in such case, those actors merely would be providing "supplemental support" for a critical governmental undertaking, rather than the other way around (Applewhite v Accuhealth, Inc., supra at 428). Here, the Canal Corp. is "exercising the powers and duties of government conferred by law for the general benefit and well-being of its citizens" (id. at 428-429). Thus, the Court finds and concludes that construction, ownership, operation, and maintenance of the Canal does not substitute for, or supplement, traditionally private enterprises, but are undertaken for the protection and safety of the public, and, thus, the operation of the Canal is a governmental function.
As the Court has found that Defendant was acting in a governmental capacity in operating the canal, the Court's next inquiry is whether the action in question was discretionary or ministerial. Defendant has attached to the Affirmation of Thomas Trace, Esq., Senior Attorney (hereinafter, "Trace Affirmation"), as Exhibit D, the Affidavit of Howard M. Goebel (hereinafter, "Goebel Affidavit") in support of its Motion. Mr. Goebel avers that he is employed by the New York State Canal Corporation (hereinafter, "Canal Corp.") as a Deputy Director, Canal Engineering, Construction, and Maintenance, and was the Canal Corp.'s Hydrologist from 2001 to 2015. He was personally involved in managing Canal water levels on June 27 and June 28, 2013 near Lock 16 (Goebel Affidavit, ¶ 1). He has a Master of Science Degree in Environmental and Resources Engineering, as well as a Bachelor of Science Degree, from the State University of New York, College of Environmental Science and Forestry, and became a licensed Professional Engineer in 1995, and Professional Hydrologist in 2001 (id., ¶ 2). Mr. Goebel states that one of his primary duties as the Canal Corp.'s Hydrologist was managing the water levels of the Canal. This required him to monitor National Weather Service (hereinafter, "NWS") forecasts, among other forecast tools, to anticipate when increased water might enter the Canal. If the rainfall forecasted by the NWS' Advanced Hydrologic Predication Service exceeded the trigger points in Canal procedures, he would instruct staff to open movable dams to lower water levels in the Mohawk River and Canal. The Canal in the vicinity of Lock 16 consists of Canal sections adjacent to the Mohawk River, and boats navigating the Canal east of Lock 16 are navigating in the Mohawk River. Movable dams are kept closed in order to pool water in the Mohawk River to allow for this navigation, and are opened to lower water levels in anticipation of heavy rains. Guard gates, on the other hand, are kept open to allow for boat navigation, and closed to isolate a part of the Canal (Goebel Affidavit, ¶ 3).
Mr. Goebel further states:
4) Two major weather events occurred in the Mohawk Valley River Basin in June of 2013, requiring the close management of the water levels of the Mohawk River and Canal. A true copy of a summary of these weather patterns, published by the New York State Disaster Preparedness Commission in its 2013 Annual Report at page 6, is attached as Exhibit D1. The first severe weather occurred around June 13, 2013, and resulted in the Canal [Corp.] issuing a Notice to Mariners advising that the Canal between Lock 6 and Lock 24 would be closed. A copy of the Notice to Mariners dated June 13, 2013 is attached as Exhibit D2. This closure was necessary to partially open [movable dams], i.e. remove their upper and lower gates. This lowered the water level of the Mohawk River [to] provide additional capacity for the rainfall, so that the expected rain did not substantially damage [C]anal infrastructure.
5) Following the June 13, 2013 rainfall, the Canal [Corp.] planned to reopen the Canal from Lock 8 to Lock 15 on June 28, 2013. A copy of the Notice to Mariners dated June 26, 2013 is attached as Exhibit D3. However, on June 27, 2013, some additional rain was forecast by the NWS, several of the upper gates of the [movable dams] from Lock 8 to Lock 18 remained opened to maintain desired water levels at each lock associated with the predicted inflows. The lower gates[,] however, remained in place as the NWS forecast did not call for a substantial flood event. A copy of the Notice to Mariners dated June 27, 2013 is attached as Exhibit D4.
6) The NWS forecasts of June 27, 2013 did not predict rainfall requiring the full opening of all the gates of the [movable dam] at Rocky Rift or the closing of the [guard gate #3] at Indian Castle. On June 27, 2013, four of the twelve gates of the [movable dam] at Rocky Rift were open to maintain desired water levels at Lock E-16 and the [guard gate #3] was not closed as the forecast was for minor rainfall. [Guard gate #3] remained open to provide safe harbor for any east bound traffic. Both the [moveable dam] and [guard gate] are located in southern Herkimer County east of Little Falls and west of Lock 16. One of the two leafs of [guard gate] was down for [maintenance]. A copy of a Notice to Mariners dated June 25, 2013 is attached as Exhibit D5. Lock 16 is east of the [movable dam] at Rocky Rift and [guard gate], and is in Montgomery County[,] west of the [movable dams] near Lock 15 to Lock 8. Lock 16, [guard gate] at Indian Castle, and the [movable dam] at Rocky Rift are shown on the map attached as Exhibit D6.
7) When heavy rain continued to fall at my residence in the early morning of June 28, 2013, I called the NWS around 4:00 [a.m.] While I was being advised that the rainfall was not severe, a United State[s] Geologic Survey water level/streamflow gage on the West Canada Creek at Kast Bridge, which discharges into the Canal just west of Little Falls near Herkimer, flowing towards Lock 16, abruptly increased over a period of fifteen minutes from a reasonably low rate to a substantially high rate indicating that the NWS forecast was incorrect. Immediately after this call, I reached out to Canal [Corp.] Staff to open more gates at the [movable dam] at Rocky Rift and to close the [guard gate] at Indian Castle to isolate the Canal between the [guard gate #3] and Lock 16 from rising waters. The severe flash flooding in the region made it impossible for Canal [Corp. staff] to reach the [movable dam] and [guard gate] at Indian Castle. It was not [until] several hours later that Canal [Corp. staff] were able to safely reach [guard gate #3] to close the gate. I later learned that the inaccurate NWS forecast of June 27 was the result of the Doppler radar being based on a broad scale/resolution which made the rainfall appear to be less severe than what was actually occurring. In reality, the actual rainfall that occurred was much heavier in certain isolated locations.
8) The NYS Disaster Preparedness Commission's 2013 Annual Report summarized this weather on page 6: "[d]ue to extremely wet conditions from multiple rainfall events through the month, flooding on June 28 was catastrophic in the western Mohawk River Basin, especially in southern Herkimer and western Montgomery Counties. Rainfall for the month through June 27 totaled between six and nine inches in this area, and rainfall overnight from June 27-28 added another three to five inches to that total. This catastrophic flash flooding resulted in NWS Albany issuing a Flash Flood Emergency due to multiple water rescues and evacuations taking place during the peak flooding."
9) In conclusion, the NWS weather forecasts of June 27, 2013, did not indicate that the [movable dam] at Rocky Rift needed to be fully open, or that the [guard gate #3] at Indian Castle needed to be closed. Their placement on June 27 and June 28, 2013 prior to the unforeseen substantial rainfall event was correct and not negligent. The flooding that actually occurred was caused by severe rainfall not forecasted by the NWS.
(Goebel Affidavit, ¶¶ 4-9).
The Court concludes that, based upon the affidavit of Mr. Goebel, Defendant has established a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence that the decision to leave the gate open was a discretionary determination made by Mr. Goebel on the basis of his monitoring of rain conditions during the period of June 27-28, 2013, and, thus, Defendant cannot be held liable. The burden, therefore, shifts to Claimant to submit evidentiary facts or materials sufficient to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., supra at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
In opposition to the Motion, Claimant has attached to the Notice of Cross-Motion and the Affirmation of Harry R. Howard, Esq. (hereinafter, "Howard Affirmation"), as Exhibit 6, the Affidavit of Marcel Falcon (hereinafter, "Falcon Affidavit") and also a letter written by Mr. Falcon on August 20, 2013. In the affidavit, Mr. Falcon asserts that his boat was damaged along with the boat insured by Claimant (Falcon Affidavit, ¶ 3). The affidavit refers to a conversation Mr. Falcon had with a named employee of Defendants' and an alleged statement the employee made regarding a gate that had "inadvertently been left open" (id., ¶ 2). The letter also includes statements allegedly made by Defendants' employees. The problem for Claimant is that the statements are all hearsay statements, and, thus, are not in admissible form. Therefore, the Court cannot credit the alleged statements. The same defect affects the various exhibits containing statements by Claimant's subrogor, Mr. Heidrich. Mr. Heidrich was away and not present at the scene of the incident on June 27-28, 2013 (Appendix to Howard Affirmation; Trace Affirmation, Ex. G, p. 31). Rather, Mr. Heidrich got information, after the fact, by communicating with Tom Jedlicka, whom he had hired to captain his boat and who related conversations he had with the dock master, Mr. Falcon, and the Canal Corp. (Trace Affirmation, Ex. G, pp. 29-31). After he was apprised of the incident, Mr. Heidrich traveled to his vessel with Mr. Jedlicka (Howard Affirmation, Ex. 2, ¶ 6, pp. 31-32). Claimant has not submitted any affidavits to refute Mr. Goebel's statement that he made a determination to leave the gate open.
Canal Law § 120 does not command otherwise. That provision, as well as Court of Claims Act § 8, provide for a broad, but not unlimited, waiver of the State's immunity from liability and consent to suit in the Court of Claims. Each are in derogation of common law so that any such waiver must be strictly construed (Canal Law § 120; Court of Claims Act § 8; Hamilton Livery Leasing v State of New York, 151 AD3d 1358, 1359-1360 [3d Dept 2017] [regarding Court of Claims Act § 8]; Condon v State of New York, 169 Misc 666, 668 [Ct Cl 1938]; Waterloo Woolen Mfg., Co. v State of New York , 118 Misc 516, 521 [Ct Cl 1922] [the latter two cases regarding Canal Law § 120]). In the Court of Claims, "[i]t is well settled that [p]ublic entities remain immune from negligence claims arising out of the performance of their governmental functions" (Nicholson v State of New York, 23 Misc 3d 313, 318 [Ct Cl 2008], quoting Miller v State of New York, 62 NY2d 506, 510 [1984]). Thus, the governmental function immunity defense applies to Court of Claims Act § 8. The Court concludes that the common-law defense, likewise, applies to actions brought under Canal Law § 120 because the statutes have been found to be not inconsistent (see Naramore v State of New York, 285 NY 80, 84 [1941]; Paneta v County of Seneca, 159 AD2d 988 [4th Dept 1990]; Toates v State of New York, 190 Misc 955, 958 [Ct Cl 1947]; Glens Falls Ins. Co. v State of New York, 188 Misc 684, 686 [Ct Cl 1947]). Moreover, the statute expressly states that claims under the Canal Law are heard in the Court of Claims (Canal Law § 120). Further, the Court need not determine if Canal Law § 120 creates a special relationship between Claimant and Defendant by establishing a benefit for a class of persons that includes Claimant, because, in this instance, the actions complained of constitute discretionary acts, and not ministerial ones. Thus, whether or not a special relationship is found to exist is not determinative in this Claim.
Defendant has shown that the actions or omissions complained of constituted a governmental function, and involved the exercise of discretion. The Court concludes that Claimant's submission fails to demonstrate that material questions of fact exist and, thus, is insufficient to overcome Defendant's prima facie showing of entitlement to judgment in its favor. Therefore, based upon the foregoing, the Court concludes that Defendant was engaged in a governmental function in maintaining the Canal, and that the decision to keep the gate open involved the exercise of discretion and, therefore, may not form the basis of any liability (McLean v City of New York, supra; Lauer v City of New York, supra; Tango v Tulevech, supra). Thus, the State's Motion for summary judgment dismissing the Claim is granted. The remainder of the State's Motion seeking summary judgment on the basis of Canal Law § 120 is denied as moot. Claimant's Cross-Motion to strike three affirmative defenses set forth in Defendant's Second Amended Answer and for summary judgment in its favor is denied as moot.
September 17, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion for summary judgment and Claimant's Cross-Motion to strike three affirmative defenses set forth in Defendant's Second Amended Answer and for summary judgment: Papers Numbered Notice of Motion, Affirmation in Support, & Exhibits Attached 1 Claimant's Affirmation and Response & Exhibits attached 2 Claimant's Notice of Cross-Motion, Affirmation in Support, & Exhibits Attached 3 Defendant's Affirmation in Opposition to Cross-Motion & in Support of its Motion 4 Defendant's Supplemental Notice of Motion & Affirmation, & Exhibit Attached 5 Claimant's Supplemental Affirmation 6 Filed papers: Claim, Answer, Amended Answer, Second Amended Answer