Opinion
# 2012-015-289 Claim No. 116128 Motion No. M-80255 Cross-Motion No. CM-80418
01-04-2012
HAYMAN v. THE STATE OF NEW YORK
Synopsis
Claim for property damage caused by improperly designed drainage structure was dismissed as untimely. Cross-motion for late claim relief was denied as defendant is immune from liability for the design of its drainage structures. Case information
UID: 2012-015-289 Claimant(s): LISA M. HAYMAN and RICHARD J. HAYMAN Claimant short name: HAYMAN Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116128 Motion number(s): M-80255 Cross-motion number(s): CM-80418 Judge: FRANCIS T. COLLINS Powers & Santola, LLP Claimant's attorney: By: Timothy J. Higgins, Esquire Honorable Eric T. Schneiderman, Attorney General Defendant's attorney: By: Michael C. Rizzo, Esquire Assistant Attorney General Third-party defendant's attorney: Signature date: January 4, 2012 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Defendant moves to dismiss the claim as untimely pursuant to CPLR 3211 (a) (2) and (8). Claimants oppose the motion and, in the alternative, cross-move for late claim relief pursuant to Court of Claims Act § 10 (6).
Claimants seek recovery for property damage allegedly caused by the improper construction, operation, maintenance and control of certain water drainage structures. The claim, filed on November 26, 2008 and served on December 4, 2008, states that the claim arose on May 4, 2007 and "continues to accrue each and every day up to and including the filing of this claim . . ." (defendant's Exhibit 1, Claim, ¶ 4). Claimants allege that their damages were caused by the negligence of the defendant in failing "to use reasonable and proper care in owning, constructing, operating, maintaining, repairing, and controlling the water drainage structures, systems, conduits, pipes, ditches and culverts, storm water, subsurface water and/or surface water and runoff [which] is directed onto and invades, infiltrates and seeps onto and penetrates claimants' property at 2 Locust Street, Village of Chatham . . ." (defendant's Exhibit A, Claim, ¶ 6). The property allegedly damaged includes "the yard, the grass, landscape, retaining walls, flower beds, driveway, pool, pool deck, out buildings, [and] garage . . ." (defendant's Exhibit 3, Claimants' Verified Bill Of Particulars", ¶ 16).In a letter dated May 4, 2007 to the Department of Transportation ("DOT"), claimant Lisa M. Hayman ("claimant") indicates that since she and her family moved into the house in September 2003, she has had discussions with numerous individuals from both the Village and Town of Chatham as well as the State of New York regarding the "improper drainage that is causing severe damage to our home and property" (defendant's Exhibit 5). She states further that
Claimants allege that they received "partial payment" for their claim from the Village of Chatham in the sum of $9,000.00 (defendant's Exhibit 3, par. 12).
"[i]ndividuals from all three entities have come to our home over the past 3-1/2 years to survey and determine who is responsible to make the repairs. We were advised that there are pipes running through our property that are broken and that they would be repaired in the Spring of 2006. It is now the Spring of 2007 and still no repairs have been made" (id.).
In this same letter, claimant indicates that "as the result of the improper drainage, the foundation of our home, our driveway and our buildings are washing away" (id.). She states specifically that a retaining wall collapsed in July 2005, two other retaining walls and the driveway are in need of repair, the side yard is and has been unusable "since the day they moved in", the pool deck and stairs collapsed, and there are holes in the yard where the water "runs out of the ground like a river from the improper drainage and broken pipes" (defendant's Exhibit 5). At an examination before trial, claimant testified the damages have been gradual, that the retaining wall collapsed in the winter of 2004, the pool deck and stairs were removed in 2006, the pool has not been usable since 2008 and the hole in their front yard, which she first observed in 2004, has gotten progressively larger (defendant's Exhibit 6, pp. 10, 20, 26, 31). In 2010 a retaining wall at the end of their driveway had to be removed and the driveway continues to deteriorate (defendant's Exhibit 6, pp. 23-24). Ms. Hayman testified further that the defendant performed work to resolve the drainage problems in 2010"now, what we've noticed is the very back edge of the driveway - or the side yard is dry where the swale was put in and the water is now to the left of that work" (defendant's Exhibit 6, p. 43).
Steven Freeman of the DOT testified that the work was completed in 2009 (claimants' Exhibit A, p. 7-8).
In support of its motion for dismissal of the claim as untimely, defendant contends that claimants' damages were ascertainable on May 4, 2007 when claimant wrote the letter notifying DOT of the drainage problem and resulting damages. Defendant argues that, in any event, damages were ascertainable no later than August 1, 2008 when an action was commenced against the Village of Chatham alleging the same damages (Affidavit of Michael C. Rizzo, Esq., sworn to August 15, 2011, ¶ 7; Exhibit 4, Complaint, ¶ 5).
Claimants oppose the motion on the ground that their damages were not reasonably ascertainable until the most recent estimate for the damages, this one for the removal of the pool and deck, was obtained on June 20, 2011 (affirmation of Timothy J. Higgins dated September 26, 2011, ¶ 11-12).They contend, therefore, that the claim filed on November 26, 2008 and served on December 4, 2008 was timely.
According to claimants' counsel, estimates for damages to claimants' driveway, pool deck and retaining walls are dated June 28, 2008 and July 27, 2008 and estimates for the alleged damage to the garage are dated September 29, 2009, October 10, 2009 and October 14, 2009.
In the alternative, claimants cross-move for late claim relief pursuant to Court of Claims Act § 10 (6). In support of the cross-motion, claimants submit a proposed claim in which they allege continuing damages with an accrual date of June 20, 2011, the date the last damage estimate was obtained.The cross-motion is also supported by the affidavit of Ewald F. Schwarzenegger, P.E., sworn to September 21, 2011. Mr. Schwarzenegger avers that he visited the site on January 8, 2008 together with Mr. Steve Freeman, an engineer from the DOT. On that same date he also reviewed plans for, inter alia, the reconstruction and improvement of New York State Route 295, part of which runs behind the claimants' property (Schwarzenegger Affidavit, ¶ 7). He states that the work included new drainage and water mains completed in the summer of 2009. Mr. Schwarzenegger returned to the site on September 16, 2011 and made the following observations and conclusions with respect to the water accumulation on claimants' property:
While the allegations of negligence in the proposed claim are the same as those set forth in the original claim, the ad damnum has increased from $40,000.00 in the original claim to to $100,920.43 in the proposed claim.
"15. I found water was on the Hayman's property adjacent to the drainage and road work performed by DOT on Route 295-between an under-drain and a parking area and extending down to the lower portion of the claimants' property. I also observed water within the under-drain installed by DOT (at the top of the stone placed in the drainage system at the same elevation of standing water on the Hayman's lawn).
16. It is my opinion, within a reasonable degree of engineering certainly, that the "opened drainage system" (curtain-drain) as described by Mr. Freeman was not planned and/or designed by DOT according to controlling and prevailing planning and engineering standards and is not working properly; if it was, water would not have been located above the level of the stone placed in the system. This system, according to Mr. Freeman's deposition testimony, was designed and installed to reduce, if not eliminate, the water that is presently on and adjacent to the Hayman's property. However, based on my site inspection, the planning and design of the curtain-drain by DOT has failed to achieve that goal."
Also submitted in support of the claimants' cross-motion is the examination before trial transcript of Steven B. Freeman, Civil Engineer 1 with the DOT. Mr. Freeman testified that a road reconstruction project in the Village of Chatham, which included the installation of new drainage structures on Route 295 adjacent to the claimants' property, was commenced in 2007 and concluded in 2009 (claimants' Exhibit A, pp. 7-8, 11-12). According to Mr. Freeman's testimony, the project was planned and designed by DOT but the work was performed exclusively by outside contractors (claimants' Exhibit A, pp. 7-12). It was Mr. Freeman's opinion that any water accumulating on the claimants' property after the performance of this work was due to underground springs, not the construction worked performed in the area.
The Timeliness Of The Claim
A claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable (Prisco v State of New York, 62 AD3d 978 [2009], lv denied 13 NY3d 706 [2009]). The fact that the full scope of the damages may be indefinite to some extent, however, does not defer the accrual of the claim so long as they are "readily observable and ascertainable" (Ton-Da-Lay, Ltd. v State of New York, 70 AD2d 742 [1979], appeal dismissed 48 NY2d 629 [1979], lv denied 48 NY2d 612 [1980]). Here, claimants' damages were readily ascertainable no later than May 4, 2007 when claimant wrote to the DOT and outlined the damages which had occurred to her property. The claim filed on November 26, 2008 and served on December 4, 2008 was therefore untimely since it was not filed and served within 90 days of the date the claim accrued (Court of Claims Act § 10 [3]).
Defendant raised the time limitations of Court of Claims Act § 10 (3) as a defense in its answer with sufficient particularity to avert waiver under Court of Claims Act § 11 (c).
Claimants reliance upon the continuing violation doctrine is misplaced. It is well settled that the continuing violation doctrine " 'may only be predicated on continuing unlawful acts and not on the continuing effects of earlier unlawful conduct' " (Thomas v City of Oneonta, 90 AD3d 1135 [2011][citations omitted]; see also Bullard v State of New York, 307 AD2d 676 [2003]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [2000]; Selkirk v State of New York, 249 AD2d 818 [1998]). In cases substantially similar to the instant claim, courts have held the continuing violation doctrine inapplicable to toll the limitations period for commencing an action arising from the continuing effects of an alleged improper diversion of water (Prisco v State of New York, 62 AD3d 978 [2009], affirming UID #2008-010-007, Claim No. 105242 [Ct Cl, April 8, 2008], Ruderman, J.; Kaufman v State of New York, 18 AD3d 503 [2005], lv denied 5 NY3d 709 [2005]; Salibene v State of New York, 114 AD2d 605 [1985]; see also Chartrand v State of New York, 46 AD2d 942 [1974]). Claimant's admitted awareness of the damage to her property as early as May 2007 leaves no doubt that the claim filed and served more than one year later is untimely.
Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us.com.
Claimants' Cross-Motion For Late Claim Relief
The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Article two of the Civil Practice Law and Rules provides a three-year statute of limitations for the commencement of an action for property damage (CPLR 214 [4]). As set forth above, the claim accrued no later than May 4, 2007 when claimant wrote the letter setting forth the damage to her property. The instant application, having been filed on September 26, 2011 is therefore untimely.
The fact that the proposed claim alleges an accrual date of June 20, 2011 does not change the result. Claimants' counsel indicates that the accrual date asserted in the proposed claim is premised upon the date the claimants obtained an estimate for the removal of their pool and deck. The date an estimate is obtained does not mark the date a claimants' damages become reasonably ascertainable. To the extent claimants rely on Ro Jo Lo Partners v State of New York (226 AD2d 896 [1996]) for a contrary conclusion, their reliance is, again, misplaced. In that case, the Court held the claim was time-barred because property damages were ascertainable more than 90 days prior to the date the claim was filed. This conclusion was based on the fact that claimant had obtained estimates of the damages to its property more than 90 days prior to the filing of the claim. While the existence of a property damage estimate may support the conclusion that damages were ascertainable as of the date the estimate was secured, the non-existence of an estimate in no way supports the conclusion that damages were not ascertainable. Indeed, claimant's letter dated May 4, 2007 leaves no doubt that the damage to her property was readily observable and ascertainable as of the date of the letter.
Nor does the conclusion of claimants' expert that their property damage was caused by the improper design of the "opened drainage system" - work which was not completed until 2009 - change the result or otherwise establish even the potential merit of a late claim (see Savino v State of New York, 199 AD2d 254 [1993] [the most important factor in determining whether late claim relief is appropriate is whether the potential claim has merit]). The law is settled that governmental immunity shields the State from liability for the negligent design of a sewerage system (Papadopoulos v Town of N. Hempstead, 84 AD3d 768 [2011]; Azizi v Village of Croton-on-Hudson, 79 AD3d 953 [2010]; Tappan Wire & Cable, Inc. v County of Rockland, 7 AD3d 781 [2004], lv dismissed 3 NY3d 738 [2004]). Moreover, claimants' expert's opinion that the drainage system was improperly designed is unsupported by reference to industry standards and practices and is therefore devoid of probative value (Diaz v New York Downtown Hosp., 99 NY2d 542 [2002]; Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Georgiou v 32-42 Broadway LLC, 82 AD3d 606 [2011]; McGuire v 3901 Independence Owners, Inc., 74 AD3d 434 [2010]; Azizi v Croton-on-Hudson, 79 AD3d at 955; Pagano v New York State Thruway Auth., 235 AD2d 409 [1997]). The sole fact that, according to this expert, there was an accumulation of water in and around the drainage structure on September 16, 2011 fails to support a claim of negligent design as the relation of cause and effect was not established (Cashin v City of New Rochelle, 256 NY 190, 194 [1931]). In other words, no facts are set forth by the expert establishing that the water observed on the claimants' property was caused by negligent design of the drainage structure rather than, for example, heavy rainfall (Carrera v State of New York, 29 AD2d 577 [1967]. No rainfall measurements are recited in the expert's affidavit, the design capacity of the drainage structure is not revealed nor does claimants' expert even remotely suggest in what manner the design of the drainage system was improper. In short, claimants' proffered nothing to defeat the defendant's entitlement to immunity for its design planning decision or otherwise establish the potential merit of the proposed claim.
Accordingly, defendant's motion is granted and the claim is dismissed. Claimants' cross-motion is denied.
January 4, 2012
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims